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Tuesday, 7 February 2012
Page: 181

Senator BOB BROWN (TasmaniaLeader of the Australian Greens) (17:58): This is one of the more serious matters that can ever come before a house of parliament—that is, a dissent from the ruling of the Presiding Officer. It is not a matter that can be taken lightly. However, if I can recast your recollection to the events of the last sitting week of last year, you will see why I took this action when I did. While we can expect that the Senate will vote on this matter on a political determination, I would also ask senators to acknowledge the argument that I will put forward because it ought to be a vote that is made on the merits, not on simply the numbers in the Senate. At the end of November in the last sitting week the President accepted a proposal—effectively a notice of motion—from Senator Kroger that had been worked on extensively, which is very abundantly clear, by the Leader of the Opposition in the Senate, Senator Abetz, to accuse my colleague Christine Milne, but more particularly me, of what is effectively a criminal matter, that is, that we were influenced by the donation of $1.6 million from Mr Graeme Wood during the last election campaign to, at that time, assist him in the purchase of a woodchip mill at Triabunna in Tasmania some year or so later, certainly many months later. The facts are, of course, absurd because the proposed site of that woodchip mill was not notified and I do not think was even in the head of Gunns Limited at the time the donation was received from Mr Wood, who is an honourable person and with whom no arrangement was, has or ever will be made as far as I or my staff are concerned or, I am sure, the good Mr Wood is concerned. It was simply a matter of a donation being made to the Australian Greens—the biggest individual donation in history. I think that that led to the enmity of members opposite and to the fury of Senator Abetz which has led to this course of events.

You will remember, Mr President, that in July last year both Senator Abetz and Senator Brandis took on the attack on corruption on this matter in this chamber on both Senator Milne and me, though the substance was not there. In the event you, Mr President, nevertheless took, prima facie, the dossier presented to you by Senator Kroger, originating from Senator Abetz, and determined that it was a matter that should be looked at by the Senate Standing Committee of Privileges. This in itself is a very serious determination by any president. If there is a precedent for it in the history of the Senate, then I will wait to hear that come out in consequent debate. The next day the Senate took up the notice of motion and referred the matter. We Greens did not vote against it because to do so would appear that there was something to cover up or to be backward about. We did not in any way resile from the fact that this proposal to the Privileges Committee was a politically concocted attack on two good senators and a good citizen of this country in an unprecedented way and ought never have got past the President of the Senate, but it did.

To demonstrate the danger of such a failure of presidential judgment, the consequent day I wrote to you, Mr President, about a matter relating to Senator Boswell. I will not go through that; it is on the record and the motion is before us. Consequently I also wrote to you about Senator Joyce and Senator Cash, all of whom have at least equal cases to answer with the logic of your decision that the matter ought to go before the Privileges Committee. But in each of those cases you determined that they should not go to the Privileges Committee. In doing so you exhibited not only an error of judgment but a very clear bias in that determination. It is an error of judgment and a bias that should not be displayed by any presiding officer, let alone the presiding officer of this great chamber.

I would look at the process of that decision that you so falsely made, Mr President. Parliaments from the House of Commons over centuries, and this great parliament of ours, have had to tangle with many fraught matters of privilege and whether or not they should be referred to privileges committees. As far back as 1984 the then Joint Select Committee on Parliamentary Privilege in judging that a member who has an accusation that goes to a presiding officer with a request it go to a privileges committee ought to, under those rules, do so at the earliest possible moment and ought to be given a little more time and made the recommendation:

That the following rules shall apply when a Member of either of the Houses—

That includes in this case, of course, a senator—

wishes to raise a matter of privilege or other contempt:

(a) The Member complaining shall, as soon as reasonably practicable after the matter in question comes to his notice, give notice thereof to the Presiding Officer of his House ...

Of course the presiding officer will look to see that the matter has been dealt with as soon as reasonably practicable.

You, Mr President, knew full well that the accusations raised in Senator Kroger's petition to you had not only been raised but that judgment had been made on those matters in this chamber by Senators Brandis and Abetz in July. It is there on the Hansard record. Five months had elapsed. In the time-honoured requirements not just of justice but of proper procedure, you ought to have ruled the matter out then and there because it had not been brought to your notice as soon as practicable. To have done that, the proposal from Senator Kroger would have come to you in July of last year. But it did not.

Moreover—and you knew this, Mr President—it was brought to you in the last sitting week of the year so that there could not be an adequate response from Senator Milne or me, and certainly the Committee of Privileges could not look at this matter expeditiously but would have to leave it right over summer.

It was effectively a slap writ, the form of writ now outlawed in many states of the United States as well as the Australian Capital Territory simply because of the inherent unfairness. But you did not. You recommended to the Senate that the matter proceed to Privileges and, almost without exception, as all procedural manuals will point out, when that happens the matter does proceed to Privileges—but to be left right over the Christmas break.

What you did not do, Mr President, was look at that Hansard in July in which Senator Brandis, as well as Senator Abetz, had adjudged both Senator Milne and I quite falsely guilty of this concocted charge. At that point, you ought to have recognised that Senator Brandis, as a member of the Privileges Committee, was no longer a proper person to be on that committee making judgment on this matter—he had already judged it. You will know, sir, that you were going to be contacted about that matter before Christmas, but had taken no action whatever.

I inform the chamber that in consequence of these events coming from this Senate chamber—and I reiterate, these are criminal matters with potential penalties of six months in jail and many thousands of dollars in fines—they ought to be dealt with with the same probity and rules of fairness as a court of law. Until 1987 the courts were very loath to intervene on matters of privilege in the parliament. But in 1987 this parliament passed the Privileges Act and, in doing so, it acknowledged the seriousness of matters like those currently before this chamber and, effectively, made them appellable to the courts. That means—and the parliament acknowledged it—that a fair and proper judicial outcome was required of this parliament, this chamber, this President and this Privileges Committee.

I ask you, sir, how can such an outcome come from a committee of which one of the members has already adjudged the accused guilty before hearing one word of evidence before the committee? I ask you, Mr President, why didn't you ask either me or Senator Milne for a response to this matter before you moved to judgment? I ask you, did you properly assess this matter on the basis that a reasonable person would see that the matter was one beyond reasonable doubt, because you are you were required to do so, and you failed to do that.

I inform the chamber that because of the seriousness of this matter, Senator Milne and I have, as the act provides, engaged legal counsel. The letters that the President tabled, and that we now have agreement from the opposition to be put into Hansard, will show that the President and the committee had been informed—and I am not going to go into detailed matters concerning correspondence to the committee—and they know that we are retaining legal senior counsel.

I can inform the chamber that tomorrow a letter will go to the Committee of Privileges, which outlines in very clear legal argument why Senator Brandis should recuse himself from the Committee of Privileges, and I remind the chamber that that matter is appellable. If, sir, you, The President, or if any member of the opposition or elsewhere in this chamber believes that either Senator Milne or I would take this political ambush, this unprecedented abuse of the privileges system, this failure of presidential prudence and a requirement for caution and legal level of judgment, sitting down or on the chin, you are wrong.

I am not just here to defend myself or Senator Milne. We are here to defend proper process in this Senate. One of the things that I will furnish, as well as the letter being furnished tomorrow to the committee, is a set of proper processes so that no President in the future makes such a remarkable error of judgment as this President made in referring this matter to the Committee of Privileges, effectively, through the Senate, but failing to do the same with more compelling cases of the same variety regarding Senators Boswell, Joyce and Cash. This Senate has been served badly by this process. I am not here just to defend myself, but I will. I am here to uphold the proper process, the dignity and the legal requirements of this Senate and its Privileges Committee. And I will. And our legal counsel will. I would remind the chamber that there is provision—and it ought to be considered properly—for the funding of the legal defence of such a serious matter against elected members of this parliament as the senator brought to the President, who then took it to the Senate, which took it to the Privileges Committee.

This is no light matter. I suggest that it is a political quarrel coming from Senator Abetz, well known for his antipathy both to Senator Milne and to me, and that it has inadvertent­ly, through bad judgement, poor presidency, poor advice or an inability to defend the proper process in this Senate, been taken up and, effectively, embellished and made into a much bigger issue by the failure of the umpire, the President of the Senate.

Mr President: you not only erred, you have made an egregious mistake here. The best that will come out of this is the recommendations that we put forward to the committee and to the Senate to see that this does not occur again. But your ruling was wrong and I dissent from it. Mr President, you have had time to reflect on it, although apparently over this long break you have been absent from the matter because you have not responded to letters in a timely fashion.

I have been engaged in it. I have been in this Senate for a long, long time and I have not seen a failure of presidential authority, wisdom and the requirement to be up to the mark as we have seen on this occasion. So be it. But, sir, you have made a mistake. We are not going to endorse that mistake and we dissent from your ruling.