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Monday, 7 September 2009
Page: 5691

The PRESIDENT (12:31 PM) —On a matter of privilege, Senator Milne, by letter dated 28 August 2009, has raised a matter of privilege under standing order 81. The matter relates to evidence given by various corporations before the Senate Select Committee on Climate Policy and the Senate Select Committee on Fuel and Energy in relation to the government’s Carbon Pollution Reduction Scheme (CPRS) legislation and its effects on those corporations’ operations. Senator Milne suggests that the evidence given by the corporations may have been false or misleading because of discrepancies between that evidence and disclosures made by the corporations to shareholders, investors and the Australian Stock Exchange. The alleged discrepancies are set out in material provided by Senator Milne and were originally composed by the Australian Conservation Foundation as part of a case before the Australian Competition and Consumer Commission.

Resolution 6 of the Senate’s Privilege Resolutions, setting out acts that may constitute contempts of the Senate, provides in paragraph (12) that:

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.

This formulation of one of the well-known contempts clearly indicates that the offence is constituted by a witness knowing that their evidence is false or misleading or not believing that their evidence is true. The offence is constituted by the state of mind of the witness. In its past reports on cases of alleged false or misleading evidence, the Privileges Committee has clearly indicated that this culpable state of mind on the part of the witness is necessary to constitute the offence, and that there must be an intention to give false or misleading evidence.

Resolution 4 of the Senate’s Privilege Resolutions requires that, in determining under standing order 81 whether a motion to refer a matter to the Privileges Committee should have precedence under that standing order, I am to have regard 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 rulings have indicated that a matter will be held to meet criterion (a) if it is capable of being held by the Senate to meet that criterion. Criterion (b) is met if there is no readily available other remedy apart from the Senate’s contempt jurisdiction; there is no other remedy for the offence of giving false or misleading evidence.

The suggestion that false or misleading evidence may have been given by the corporations concerned rests upon alleged discrepancies between that evidence and the disclosures to the market made by the corporations. An examination of the comparison between the evidence and the disclosures, composed by the Australian Conservation Foundation, however, indicates that in relation to each listed statement made to the Senate committees there was no disclosure or limited disclosure, or there were differences in tone between the committee evidence and the disclosures. In other words, it is alleged that the corporations have not told their shareholders, investors and the Stock Exchange everything they have told the Senate committees. It is not a case of discrepancies between statements but the absence from one set of statements of material contained in the other.

The cases of alleged false or misleading evidence considered by the Privileges Committee in the past have involved apparent contradictions between evidence and other statements or between evidence and facts or circumstances at variance with that evidence, such a situation indicating that the evidence may have been false or misleading. There has been no case of statements made in evidence being contrasted with silence or partial silence about the same matters in other forums. It is obviously difficult to proceed from such a situation to a conclusion that the evidence may have been false or misleading, much less to a conclusion that the witnesses knew that the evidence was false or misleading and had the necessary culpable intention.

In this light, the matter appears to fall far short of meeting the criteria I am required to consider. On the material so far provided, it would not be capable of being held by the Senate to meet criterion (a). I have therefore decided not to give precedence to a motion to refer the matter to the Privileges Committee.

A decision not to give a matter precedence under standing order 81 does not prevent a senator raising the matter in the Senate under other procedures.

I table the letter from Senator Milne and the attachments.