A possible contempt in relation to a witness to the Committee's inquiry
into Access to Justice
Report to the Senate
This report has been prepared in accordance with the requirements of the
Resolutions agreed to by the Senate on 25 February 1988 in relation to
Parliamentary Privilege, and in particular, resolution 1(18).
The report relates to what the committee considers to be a clear case of
Facts of the matter
Ms Rowena Puertollano of Broome, Western Australia, made a submission
(Attachment 1) to the committee's current inquiry into Access to Justice in
April 2009. Ms Puertollano signed the submission as Coordinator, Broome Family
Violence Prevention Legal Service (FVPLS). There was no request for
confidentiality or any apparent reason under the committee's operating
resolutions to withhold the submission from publication. Accordingly, the
submission was received as a public submission from an individual, and designated
as submission no. 8. It was posted on the Parliament House website listed under
Ms Puertollano's name, notwithstanding the signature block which detailed her
On 18 June, Ms Puertollano contacted the committee's secretary by phone
and advised that she had received a "written warning" from her
employer, the Aboriginal Legal Service Western Australia (ALSWA) for having
made the submission. Ms Puertollano supplied a copy of the written warning
(Attachment 2), which was signed by Ms Katrina Carlisle, Manager, FVPLS, to the
committee secretary by facsimile the same day. The warning letter states that:
This letter constitutes a formal written warning, regarding a
matter which has been deemed "Serious Misconduct" on your behalf.
1. A letter dated 27 April 2009, and signed by you, as
Coordinator of the Broome FVPLS, was submitted to the Senate Standing Committee
on Legal and Constitutional Affairs.
This matter is viewed as a very serious breach of
Organisational Policies by Senior Management at ALSWA, and consideration has
been given to dismissal...
The committee met on Thursday 25 June 2009 and discussed the matter. The
committee authorised the Secretary to send a letter to Ms Carlisle advising
that this was a potential contempt of Parliament and a criminal offence,
recommending that the warning letter be withdrawn and seeking an assurance that
Ms Puertollano would suffer no disadvantage for having made a submission. A
letter (Attachment 3) was sent to Ms Carlisle in the terms agreed to by the
committee on Monday 29 June.
Mr Dennis Eggington, Chief Executive Officer of the ALSWA, responded on
10 July to the committee's letter. Mr Eggington's response (Attachment 4) disagreed
with the committee's advice to the ALSWA that the letter of warning issued to
Ms Puertollano may constitute a breach of Parliamentary Privilege. Mr Eggington
The letter was a legitimate warning to an employee of ALSWA,
and was concerned with the employee holding herself out as representative of
ALSWA without permission from Senior management. This is what Ms Puertollano's
submission to the inquiry did.
Mr Eggington also asserted that Ms Puertollano had signed a
confidentiality agreement to which she agreed to be bound:
Further, we advise that when Ms Puertollano commenced her
employment in September 2008 she signed a confidentiality agreement in which
she agreed to be bound by the "Responsibilities of Staff" outlined in
the ALSWA Policy and Procedures Manual and referred to in the letter. All
employees including Ms Puertollano are expressly advised by the ALSWA Policy and
Procedures Manual that no staff member is prohibited from participating in
political or Aboriginal or Legal Community activities in their private
Mr Eggington stated that although the organisation did not accept that
the warning letter may amount to a contempt, it was prepared to withdraw the
letter. Mr Eggington's response went on to outline the proposed advice to Ms
The committee met in Perth on 13 July prior to a public hearing which
had been scheduled for that day. The committee considered Mr Eggington's letter
and considered Mr Eggington's assertions to be incorrect. The committee
prepared a further letter (Attachment 5) to Mr Eggington, which was signed by
the Chair, Senator Barnett, and delivered by hand to Mr Eggington at the public
hearing on 13 July by the committee's secretary.
The ALSWA gave evidence to the committee's inquiry later that day, but
the matter of Ms Puertollano was not raised with the ALSWA representatives.
The ALSWA prepared a letter withdrawing the warning letter on the same
day, addressing it to Ms Puertollano at PO Box 919 in Broome. This letter
(Attachment 6) was copied to the committee secretariat and was received on 16
On 28 July, Ms Puertollano wrote to the committee secretary seeking
confirmation of action by the committee on her behalf, and of the ALSWA's
response and acceptance of their responsibilities. (Attachment 7) Ms
Puertollano also advised that she had tendered her resignation. The committee
secretary responded to Ms Puertollano in writing on 3 August (Attachment 8) and
also by phone the following day, on 4 August. In the subsequent conversation,
Ms Puertollano indicated to the secretary that she had not received the ALSWA's
letter of 13 July which withdrew the written warning.
On 4 August, the committee secretary phoned the ALSWA senior Legal
Adviser, Mr Peter Collins, to advise that it appeared that Ms Puertollano had
not received the advice from the ALSWA withdrawing the written warning. Mr
Collins undertook to follow up in relation to the matter, and also provided a
copy of Ms Puertollano's letter of resignation. (Attachment 9)
The committee notes that Ms Puertollano did sign the letter as
Co-ordinator, Broome FVPLS, and that she apparently did so without the consent
of her employer, who maintained that she was not authorised to represent the
views of the organisation. However, the committee does not accept that Ms
Puertollano was attempting to put forward her views as representing the views
of the FVPLS.
Apart from the signature block, at no point in her submission did Ms
Puertollano claim that the submission was the submission of an organisation.
Further, her submission shows that she was in strong disagreement with the
policies of the organisation. It is therefore difficult to construe her
submission as made in other than a private capacity. That she signed the
submission as co-ordinator of the FVPLS in Broome serves only to establish her
identity and that she was well placed to comment on the policies and practices
of the organisation.
However, the issue of whether Ms Puertollano's submission was made in an
official or a private capacity is irrelevant. The procedures for the protection
of witnesses laid down by the Senate are unequivocal. In the committee's
opinion this matter appears to be a clear case of interference with a witness
and also molestation of a witness, both contempts.
The committee was concerned about the ALSWA's resistance to the
committee's warning that this was a possible breach of privilege, and its
apparent view that its action was legitimate and justified. It was only after
follow-up action by the committee that the ALSWA acted to withdraw the written
The committee acknowledges that the ALSWA did intend to withdraw the
letter of warning, but notes that its communication of this letter to Ms
Puertollano may not have been immediately effective.
The committee is particularly concerned about the wording of the ALSWA's
letter to Ms Puertollano withdrawing the letter of warning. The letter is
conciliatory to the extent that Ms Puertollano's freedom to participate in a
private capacity is acknowledged. However, the letter also states that:
I remind you that you remain bound by the "Responsibility of Staff" provisions in the ALSWA Policy and
Procedures Manual with respect to communications in your capacity as an
employee of ALSWA."
and it concludes with the words:
It follows that no action will be taken against you by ALSWA
as a consequence of any evidence you have or may give to the Committee in a
The committee is of the view that the last four words of the concluding
sentence can be interpreted as continuing to assert the right to take further
action against Ms Puertollano if she gave evidence in terms other than those
laid down in the letter. While this is now obsolete due to Ms Puertollano's
resignation from the organisation, it does appear that the ALSWA has not resiled
from its original views about its rights to control the flow of information to
the committee and to discipline staff members who give evidence to committees
without authorisation. These views appear to be still held despite two attempts
by the committee to dissuade the ALSWA of them. They are clearly incorrect and
not consistent with the Senate's resolutions.
The committee has considered the question of whether the possible
contempt interfered with the committee's conduct of the inquiry. The committee considers
that any interference was marginal, as the written evidence had already been
given, and Ms Puertollano had not been selected to give further oral evidence.
The committee is nonetheless of the view that that the matter is serious
and should be referred to the Standing Committee of Privileges. The committee
is mindful of the principle repeated by that committee in its 85th
report, and also of its findings:
...the Committee of Privileges has advised in its reports over
a long period that the fact that an action might otherwise be lawful does not
in itself present a defence against findings of contempt of the Senate. The
committee first declared this principle as far back as June 1989...
This committee understands and appreciates the difficulties
involved for a person acting in good faith, and on advice, in handling such
matters. That said, the committee must continue to send a message to all who
are in a position of authority over, or otherwise attempt to intimidate or
punish, a witness before a Senate committee, however insubordinate or improper
the behaviour of a witness seems to be. As all its reports on improper
interference with witnesses have emphasised, the committee regards this as the
most serious of all possible contempts...
When giving evidence to a Senate committee, an individual's employment
conditions, policies and guidelines, including confidentiality agreements
however described are of no effect and the witness must be able to assist the
committee in complete freedom, and without suffering any disadvantage as a
consequence, regardless of whether the evidence is given in an official or a
private capacity. The committee felt that this essential principle has not been
understood by the ALSWA and its universal application needs to be restated.
The committee is also conscious of the broader implications of this
case. The committee can understand that organisations may wish to ensure that
there is a clear demarcation between when individuals present evidence in an
official or a private capacity, and that sometimes this line can be blurred,
particularly when individuals give evidence in a private capacity but with the
benefit of the experience of their employment. The committee requests that the
Standing Committee on Privileges committee consider providing some further
guidance and restatement of principles on this matter for the benefit of
prospective witnesses, employers and other associated persons, as well as committees
who must deal with these potential issues in the course of their inquiries.
1.25 The committee recommends that a possible contempt by the Aboriginal
Legal Service Western Australia in relation to a witness who submitted evidence
to the inquiry into Access to Justice be referred to the Standing Committee of
Senator Guy Barnett
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