Court orders CCC to return material seized in probe

The Supreme Court of Western Australia has ruled the corruption watchdog should hand back documents seized as part of a probe into allegations of misconduct by former MPs, at least until it can determine whether they should be protected by parliamentary privilege.

Former Legislative Council president Kate Doust launched legal action against the Crime and Corruption Commission (CCC) following an investigation during which the watchdog served three notices to seize emails, calendar entries, travel allowance applications and staff employment contracts held by former MPs.

The documents were requested as part of an investigation into whether former Legislative Council members had engaged in serious misconduct through the use of their travel and electorate allowances.

On May 13 2019, the CCC commissioner wrote to Ms Doust advising of the investigation and citing concerns that complying with the notice may breach parliamentary privilege.

Over the course of the following months, the two parties remained at odds over the preferred procedure for identifying and isolating privileged material and whether the amount of time given should be extended to allow the process to be followed. 

In August 2019, the CCC searched the home of former MP Philip Edman, seizing a laptop and two external hard drives.

At the time, Mr Edman was reported as having told sitting members there was incriminating evidence on the laptop with the ability to "bury ... a lot of people".

The search prompted the Legislative Council to launch legal action challenging the validity of the notices, on the basis the documents were protected under parliamentary privilege.

During the two-day hearing in April, Ms Doust claimed the first three notices required the production of records that were subject to parliamentary privilege, and that because the notices were invalid, the receipt of those records should be invalid.

But the CCC argued that privilege was not enough to render documents immune from compulsory production, contending it was not within the power of a house of parliament to determine whether a document was protected by privilege.

For that reason, the CCC argued that none of the notices were invalid.

In a judgement handed down by the Supreme Court today, Justice Stephen Hall ruled the notices were not invalid, but that the receipt of the documents on the basis that a valid determination of privilege had been made was not valid. 

In the judgement, Justice Hall said the CCC did not have the power to require the surrender of privileged documents, and those documents should not have been produced until a determination around privilege had been made.

He ordered that the documents be returned to allow for a proper determination of privilege to be made, by parliament or by the courts.

In justifying his decision, Justice Hall said the importance of parliamentary privilege should not result in it being treated with “unquestioning reverence”. 

“The invocation of parliamentary privilege is one that is apt to dazzle lawyers and judges,” he said.

“However, the phrase is not a magical one that, once uttered, should result in meek acceptance by the courts.”

Justice Hall added that where an issue of parliamentary privilege arose, that issue could be determined either by seeking a parliamentary or court ruling as to whether privilege protected the documents from seizure.