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Tuesday, 11 August 2009
Page: 4417


The PRESIDENT (12:31 PM) —Senator Evans, by letter dated 10 August 2009, in accordance with standing order 81, has raised a matter of privilege, and asked that I give precedence to a motion to refer the matter to the Privileges Committee.

The matter raised by Senator Evans concerns the circumstances involved in the hearing of the Economics Legislation Committee on 19 June 2009, at which witnesses were examined about the OzCar program. Senator Evans refers to the use of an email as the basis of questioning at that hearing, an email later found to be fabricated, and evidence of an agreement with the principal witness at that hearing as to the questions to be asked and the answers to be given, which Senator Evans states was for the purpose of delivering predesigned questions and answers in order to bring about a predetermined outcome. Senator Evans submits that these circumstances raise the issues of whether false or misleading evidence was given to the committee and whether the committee, the Senate and the public were misled as to the nature of the hearing.

In determining whether to give precedence to a motion to refer the matters to the Privileges Committee, I am required by the Senate’s privilege resolution No. 4 to have regard only to the following criteria:

(a) the principle that the Senate’s power to adjudge and deal with contempts should be used only where it is necessary to provide reasonable protection for the Senate and its committees and for senators against improper acts tending substantially to obstruct them in the performance of their functions, and should not be used in respect of matters which appear to be of a trivial nature or unworthy of the attention of the Senate; and

(b) the existence of any remedy other than that power for any act which may be held to be a contempt.

Past presidential determinations have indicated that matters are regarded as meeting these criteria if they are capable of being held by the Senate to conform with criterion (a), and if there is no readily available other remedy. Paragraph (12) of the Senate’s privilege resolution No. 6, setting out matters which may constitute contempts, provides:

A witness before the Senate or a committee shall not:

                …            …            …

(c) give any evidence which the witness knows to be false or misleading in a material particular, or which the witness does not believe on reasonable grounds to be true or substantially true in every material particular.

The Senate and the Committee of Privileges have always taken extremely seriously any suggestion that misleading evidence has been given to a committee. The Privileges Committee, in its past reports, has made it clear that misleading evidence may be constituted by any evidence which leaves a committee with a misleading impression of the facts or circumstances.

I consider that the circumstances to which Senator Evans refers, if found by the Privileges Committee to have occurred, are capable of being held by the Senate to give rise to an issue of whether false or misleading evidence was given, and therefore to meet paragraph (a) of the criteria I am required to consider.

Apart from the issue of misleading evidence, Senator Evans refers to the misleading of the committee, the Senate and the public as to the nature of the hearing. In relation to this point, there could be an issue of whether there was an interference with the committee contrary to paragraph (1) of the Senate’s privilege resolution No. 6:

A person shall not improperly interfere with the free exercise by the Senate or a committee of its authority, or with the free performance by a senator of the senator’s duties as a senator.

I have therefore determined that a motion to refer this matter to the Privileges Committee may have precedence in accordance with standing order 81.

Senator Fielding, also by letter dated 10 August 2009, has raised matters of privilege under standing order 81. The first matter concerns the pre-arrangement of questions and answers at the Economics Legislation Committee hearing on 19 June 2009 and whether this had the potential to mislead the committee and the Senate and to interfere with a Senate inquiry. It therefore involves the same issue of principle as the similar matter raised by Senator Evans. 

The other matter Senator Fielding has raised concerns an incident at the Economics Committee estimates hearing on 22 October 2008, in which a minister appeared to be providing questions to a government member of the committee, who then asked the questions. Although this relates to a different occurrence, it involves the same question of principle concerning the pre-arrangement of committee hearings. The Privileges Committee could therefore consider this occurrence in conjunction with its consideration of the other events and determine whether it should be regarded in the same light.

I have therefore determined that a motion to refer these matters to the Privileges Committee may also have precedence in accordance with standing order 81.

I table the letters from Senator Evans and Senator Fielding.

Notices of motion may now be given.