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Friday, 25 November 2011
Page: 9701


The PRESIDENT (15:58): By letter dated 24 November, Senator Bob Brown has raised a matter of privilege: a possible improper relationship between Senator Boswell and Metcash, a listed company in the grocery marketing and distribution business, and the influence of political donations by Metcash on Senator Boswell's instigation of a parliamentary inquiry into the ACCC's decision to block the expansion of Metcash. Under standing order 81(2) I am required to:

... determine, as soon as practicable, whether a motion relating to the matter should have precedence of other business, having regard to the criteria set out in any relevant resolution of the Senate.

The relevant criteria are in Privilege resolution 4 as follows:

(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.

Paragraph (a) 'the need to provide reasonable protection for the Senate and its committees against improper acts tending substantially to obstruct them in the performance of their functions' emphasises the purpose of the law of parliamentary privilege as a means of protecting the integrity of the institution and correcting the impact of any improper attempts to interfere with the ability of the institution or one of its members to get on with their work.

The Parliamentary Privileges Act 1987 provides in section 4 that the essential element of a contempt is that it involves:

an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member.

Correction of any improper interference can be sufficient to remove the essential element of the offence. For example, if a witness is suspected of giving false or misleading evidence to a committee and on being confronted by the committee with the allegation clarifies and corrects his evidence then the potential improper interference with the committee that could ensue from its deliberating and drawing conclusions on a false basis is addressed and the potential harm is avoided. The protective or corrective rationale of parliamentary privilege means that, for the most part, matters of privilege will relate to current matters.

Although I am satisfied that the matter raised by Senator Bob Brown addresses criterion (a) on the basis that the need for senators to be seen to be free of any improper external influence is of funda­mental importance to the ability of the Senate to carry out its functions, I am mindful that the inquiry instigated by Senator Boswell is 12 months old and was completed in February this year. The com­mittee, in effect, determined not to investigate the matter further after legal proceedings were instituted. Furthermore, as is evident from the material provided by Senator Bob Brown, Senator Boswell made a personal explanation to the Senate on 26 November 2010 in which he clarified allegations about the relationship between political donations and the reference to the committee.

In these circumstances, it is difficult to identify what, if any, other remedy could be provided by invoking the contempt jurisdiction and, in the circumstances, whether the threshold requirement for improper interference continues to be sufficiently apparent. The committee's conclusion and the explanation to the Senate by Senator Boswell both indicate that remedial action has occurred. I therefore determine that I should not give precedence to a motion to refer this matter to the Privileges Committee.

Senator Bob Brown also wrote to me about the presence of journalists in the gallery when I made my statement on a matter of privilege on Wednesday. I do not know if, or why, there were journalists in the gallery and, in any case, there is no question of privilege involved. At most, it is a question of courtesy to the Senate or lack thereof. In accordance with the usual practice, I table the correspondence from and with Senator Bob Brown.