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Monday, 19 March 2012
Page: 2153


Senator JOHNSTON (Western Australia) (17:11): I present the 150th report of the Senate Standing Committee of Privileges on the following matter: whether there was any improper influence in relation to political donations made by Mr Graeme Wood and questions without notice asked by Senator Bob Brown and Senator Milne. I also table a volume of documents.

Ordered that the report be printed.

Senator JOHNSTON: by leave—I move:

That:

   (a) the Senate endorse the findings at paragraphs 1.56 and 1.59 of this report and the conclusion, at paragraph 1.60, that no question of contempt arises in regard to the matter referred; and

   (b) the Procedure Committee review the processes for raising and referring matters of privilege, as set out in paragraphs 2.23 and 2.24.

This matter was referred to the committee by the Senate on 24 November 2011, having been raised by Senator Kroger as a matter of privilege. This is the first occasion on which the committee has considered the serious allegation as to whether a person has sought to improperly influence a senator by the offer of a benefit and, similar, the first time it has considered the equally serious allegation as to whether a senator has sought or received a benefit as part of an improper arrangement as set out in privilege resolution 6, part 3.

The central allegation underlying the reference was that Senator Bob Brown entered into an arrangement for the Australian Greens to receive political donations by reason of which he and other senators agreed to limit their independence in the discharge of their duties as senators. The committee does not consider that there is any direct evidence to support the contention set out in the terms of the reference. Such questions as arose from the material provided by Senator Kroger in raising the matter are answered by the accounts provided to the committee by Senator Brown, Senator Milne and Mr Wood.

The committee finds no evidence of a causal connection between the donation from Mr Wood and the conduct raised in Senator Kroger's letter. Accordingly, the committee does not dispute Senator Brown's account of the discussions with Mr Wood and his assurance that they neither discussed nor entered into any agreement by which the independence of Senator Brown, Senator Milne or other Australian Green senators was compromised. Similarly, the committee does not dispute Senator Milne's account of her actions. For his part, Mr Wood also rejects any suggestion of impropriety. Again, the committee has before it no cogent evidence which would cause it to dispute Mr Wood's account. Having found that the evidence does not support the contentions in the terms of reference, the committee has concluded that no question of contempt arises with respect to the matter referred.

The committee also comments on a number of procedural matters which arose in relation to the matter. In particular, the committee comments on the respective roles of the President and the Senate in dealing with matters of privilege. There was a level of criticism and commentary about the President's determination that the matter have precedence as a matter of privilege. The committee considers that much of this criticism arises from a misunderstanding of the role of the President. The President's determination that a matter have precedence is often mischaracterised as endorsing the reference of the matter raised, assessing the merits of the matter or determining that a prima facie case exists. It is none of these things. It is, rather, an assessment that, according to limited specified criteria, the matter should take priority in the Senate's business. In essence, the President's determination goes to the character of the matter and not to its merits. How the Senate then deals with such matters is appropriately a question for the Senate.

The President, in determining precedence, is bound to have regard only to the criteria in Privilege Resolution 4. The Senate, in deciding whether to refer the matter to the Privileges Committee, is not so constrained. The Senate may take other matters into account, including matters going to the merits of the case. The committee considers that steps could be taken to better explain the role of the President, the limitations inherent in the criteria the President is required to consider and the questions that are quite properly left to the determination of the Senate.

The committee also recommends that the Procedure Committee consider whether the standing orders should be amended to ensure that, wherever possible, the Senate will have the opportunity to debate matters of privilege prior to deciding whether they should be referred. That opportunity is blunted somewhat by the Senate's current routine of business.

Senator Bob Brown wrote to the committee about notification of the statement the President made on the matter on 24 November 2012. Although it is not provided for in the standing orders, the committee considers that in the future it would be appropriate, where the President makes a statement in relation to a matter of privilege which names or appears to involve senators, for the President to inform those senators that such a statement will be made. Under the standing order, senators may not refer to a matter of privilege in the Senate while it is being considered by the President. Although, again, it is not provided for in the standing orders, the committee also considers that such matters should not be referred to outside the Senate during that time.

The committee also makes some observations about judicial review of the contempt jurisdiction of the Senate and about the participation of a committee member in this inquiry. I will not go into those matters today, other than to note that the decision of Senator Brandis to not participate in the committee's inquiry is another example of senators appropriately exercising their discretion in these matters.

Finally, the committee considered the question of the reimbursement of legal costs. Under Privilege Resolution 2(11) the committee is empowered to recommend to the President reimbursement of costs of legal representation to witnesses before the committee. However, this does not give rise to a general presumption that legal costs incurred will be reimbursed. When this resolution was considered by the Senate in 1988, it was made clear that it was being introduced on the principle of legal aid only in relation to need. The President must be satisfied that a person would suffer substantial hardship due to liability to pay the costs of representation. The committee has always observed the need to apply this criterion strictly.

The report notes the relevant principles. While the committee does not have before it an application for costs, the committee does not consider that the hardship criterion has been met. The main effect of the motion I have moved is for the Senate to endorse the committee's findings and its conclusion that no question of contempt arises with regard to the matter referred. I commend the motion to the Senate.