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Tuesday, 20 March 2012
Page: 2282


Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (15:40): Mr Deputy President, I seek leave to make a brief personal explanation as I claim to have been misrepresented.

The DEPUTY PRESIDENT: Leave is granted for five minutes.

Senator BRANDIS: Thank you, Senator Collins, for the indulgence. I claim to have been misrepresented by Senator Bob Brown. Yesterday in the debate on the 150th report of the Privileges Committee on whether there was any improper influence in relation to political donations made by Mr Graeme Wood—and in questions without notice asked by Senator Bob Brown and Senator Milne—Senator Brown, in reference to me, said, and I am reading from page 65 of yesterday's proof Hansard:

… Senator Brandis … after two months was forced to recuse himself from this committee …

That is capable, Mr Deputy President, of creating a misleading impression. I am, as you are aware, a member of the Privileges Committee—indeed, a former chairman of the Privileges Committee—and it is a fact that I did recuse myself from that inquiry, a fact that was noted by the chair in presenting the report and is noted in the report itself. It is quite misleading to say either that I was forced to or that I was forced to after two months.

Senator Brown made some observations in a debate in the Senate on Tuesday, 7 February 2012 in which he said words to the effect that, because I had given a parliamentary speech in the chamber in July of last year which dealt with matters that were before the Privileges Committee after Senator Kroger's reference in November of last year, I ought not to participate in the inquiry. That speech by Senator Brown was brought to my attention by Senator Johnston, the chairman of the committee, the following day, Wednesday, 8 February. I thought about the matter overnight and I decided that the point made by Senator Brown was a fair point and that, because I had raised in a parliamentary speech matters which could potentially arise during the course of the inquiry, I ought to take the course of recusing myself. So I wrote to Senator Johnston on 10 February 2012 doing so. In the course of that letter, which I seek leave to table, I said:

Although I stand by what I said in the course of the debate, it is incorrect to say that I have pre-judged the issues which the inquiry is likely to address. Nevertheless, having considered the matter carefully, I have decided to recuse myself.

As you are aware, the law recognizes two categories of case in which a judicial officer or other relevant decision-maker should stand aside from a hearing: where there is actual bias (for instance, where there is a direct conflict of interests) and apprehended bias (where, although there is no actual bias, a reasonable objective observer might conclude that there could be).

Although the Privileges Committee is not, of course, a court or a quasi-judicial tribunal, it is nevertheless of central importance that it both act with neutrality and be seen to so act. For that reason, I consider the legal principles to which I have referred provide useful guidance and should generally be followed in a case such as this.

In view of my contribution to the debate concerning Senator Brown's relationship with Mr Wood and his interests, I have concluded that there is a sufficient basis for the principle of apprehended bias to apply to this case.

It will be obvious from what I have said that the decision to recuse myself was a decision taken entirely of my own volition. The suggestion that I was forced to do so is incorrect.

Senator Brown anticipated in his speech to the Senate on 7 February that the following day he would deliver to the Privileges Committee a letter setting out the grounds why ought to recuse myself. I in fact did not read that letter and have not read it to this day. The principles are well known to me and I applied them to myself.

It is also incorrect to imply, as Senator Bob Brown's remarks do, that there was a reluctance on my part over some two months to recuse myself. It may be the case that two months earlier Senator Brown had made a statement that I ought to recuse myself, but if he did I was unaware of it. Senator Brown may think the world hangs upon his every word, but I do not. I first became aware of Senator Brown's complaint when Senator Johnston drew it to my attention on 8 February following Senator Brown's parliamentary speech on 7 February and, having reflected on the matter overnight, I decided on 9 February—in other words, effectively immediately—under no pressure but of my own volition to apply the appropriate legal principle and to recuse myself, which I think in the circumstances was the proper thing to do.

The DEPUTY PRESIDENT: Senator Brandis, you sought leave to table a document. Is leave granted?

Leave granted.