Monday, 19 March 2012
Privileges Committee; Report
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.
by leave—I move:
(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.
I should point out at the outset that Senator Milne and I, who were the subjects of this adventure by Senator Kroger and Senator Abetz which foundered under the scrutiny of the committee, do not have the advantage—which other members in this chamber have, including the chair of the committee—of having the committee's findings. Nevertheless, I will do what I can to respond to this process, which is one of the lowest points in Senate procedure that I have experienced in the 16 years of being in this chamber. I say that not because I and Senator Milne were the subjects of this ambush through the Senate by Senator Abetz, using Senator Kroger—neither of whom are with us in the chamber—to prosecute a quarrel but because it should not have been allowed past the President. I have spoken on that matter before.
The committee has found that it does not consider there is any direct evidence to support the accusations as true. It could make no other finding. Nor is there—and the committee might have, in decency, added this in its report—any indirect evidence to consider, which might have ameliorated the wrong done in this process to Senator Milne and I and, indeed, by inference to other senators.
The submission to this committee from our legal representatives, Mr Roland Browne—who is our solicitor in Hobart—Mr Ron Merkel QC and Frances Gordon of counsel, in Melbourne, made it abundantly clear that the Kroger-Abetz letter, which went to the President and set in train this process, should never have got past the President and that a 24-hour consideration by the President was manifestly wanting. Nevertheless, the letter is, amongst other things, highly selective and inaccurate. It gives rise to no bona fide or reasonably arguable allegation. Further, there was no allegation of contempt disclosed—no allegation whatsoever in the Kroger-Abetz letter that disclosed contempt. The letter was manifestly deficient. These are all matters that the President ought to have picked up on, and there was no proper basis for any allegation of an offence by Senator Bob Brown, Senator Milne or any of the other Greens senators.
In the six minutes left to me I say that this process has defamed a good, proper and decent businessman and citizen of this country, Mr Graeme Wood. It is a tawdry, unbecoming process which got past the President and went to the committee and it has now been found wanting. The committee had 'no cogent evidence' of a contempt—no evidence whatsoever—but it went past this inadequate President to the committee with the consequent result of national publicity. What is more, it did so without warning to Senator Milne or me, the subjects of what have now been found to be totally incorrect accusations. The process put in train by the President through whichever other senators knew about it had representatives of the Murdoch press, namely the Australian, in the gallery. We have asked the committee to make findings on that matter, but there are none in this report today. There should be. I know the committee has said this should not happen again but it should not have happened on 24 November last year and it warrants an inquiry and a report back to the Senate.
In the matter of expenses, the chair of the committee, Senator Ronaldson, has just read that there has been no claim for expenses and that there is no evidence that there is a need for those expenses to be paid. That is not true. Several letters from our legal representatives to the committee have requested that in fairness, following a process set off by Senator Abetz and Senator Kroger, the legal expenses incurred in defending ourselves from these accusations—now found by the committee to be wrong—should be reimbursed to Senator Milne and me. I can tell you those expenses are in the order of $50,000, an amount which is warranted not least when you look at the expenditure of more than $1 million during the period of the Howard government on the defence of ministers following accusations from the public. This is far more than that: it is an accusation from fellow senators found to be wrong and it needs to be put right by those expenses being paid. We will pursue the matter of the expenses, reminding the Senate and the chair of the committee, who sits here and looks at me now—
Senator Fisher interjecting—
And there is laughter from coalition members opposite. The reality is that the claims by Senator Abetz and Senator Kroger—and indeed Senator Brandis, who after two months was forced to recuse himself from this committee—had brought with them a potential for six months in jail or a huge fine. It is justice that, having found that the accusers had no basis for this process whatsoever and the accused having every right to seek appropriate legal defence, those costs should be paid. That is part of the reasonable process of law in this country and I remind the chair as I have done before that it is appealable to the courts.
The difference between now and 1987 is that the Senate has passed the Parliamentary Privileges Act into law. It is a legal instrument. It is not just up to a committee to dismiss a fair reimbursement of legal costs as it may wish to—it is a matter of proper legal practice brought into law by this Senate when it passed that act in 1987. I never wanted to get into this process, nor did Senator Milne and nor did Mr Wood, but we have been subject to the most appalling calumny through this Senate, and reprinted in the media across this country via the Australian newspaper, on a totally unwarranted and wrong basis. Is it to be that Senator Abetz or Senator Kroger simply shrug their shoulders and try again? I say not. In particular I bring to the Senate's notice the recommendations from our legal representatives that this process should not happen again and that those recommendations should be adopted in full by the Senate. (Time expired)
I find it extraordinary, sitting here, given the constant abuse of the President that we have regrettably witnessed for a number of weeks, if not months now, to hear an explanation by the chair of the Senate Standing Committee of Privileges clarifying the role of the President in this matter, to have Senator Bob Brown sit here listening to that explanation of how the President's role has been misinterpreted and yet to have Senator Brown once again seek to undermine the position of the President and to undermine and abuse the individual who holds that office. I have to say that I find this contemptible. It is a reflection of Senator Brown's contempt for this whole process and contempt for the democracy of this place. Having said that, we have just heard the report, and Senator Brown himself has just sought to revisit the maligning of the President and the role of the committee and those that have sought to refer this matter to the Privileges Committee. May I add that it is not the first time that a matter has been referred to the Privileges Committee, and you would think it was by the way in which you have carried on, which only demonstrates, Senator Brown, that you have one huge glass jaw. Notwithstanding that, I would like to consider the report that has been brought down by Senator Johnston and seek leave to continue my remarks.
Certainly. What that will mean is that the debate will not be concluded but the debate will be adjourned for another time. If leave is not granted then the debate will continue now. Is leave granted for Senator Kroger to continue her remarks?
Leave not granted.
I rise to respond to the Privileges Committee report. I note that in that report the committee states that it:
... does not have such evidence before it in this case. While the allegations made in Senator Kroger’s letter are serious ones, the committee does not consider that the material submitted to support those allegations amounts to more than circumstantial evidence. The committee considers that any questions which do arise as a result of that material are answered by the responses of the three people named in the terms of reference.
It goes on to say:
Where Senator Kroger’s letter raises a question around the perceptions arising from Senator Brown personally discussing these matters, it merely invites the inference that Senator Brown entered into an improper arrangement, rather than providing evidence.
It goes on to say:
The committee considers that the evidence before it does not establish—
It goes on to say that the evidence before it does not establish a causal connection between the donation made by Mr Wood and the conduct in the Senate about which Senator Kroger complains. I am, frankly, astounded, after what Senator Kroger and Senator Abetz have done to Senator Brown and me, that she should stand here in the Senate this afternoon and describe Senator Brown as having a glass jaw. From 24 November Senator Brown and I were defamed by Senator Kroger, who has failed to provide any evidence whatsoever for the claims that she made, and that defamation has gone on now for four months across Australia—against two senators based on no evidence whatsoever. Then she stands up here and cannot bring herself to say: 'I accept the report. There is no evidence for the allegations that I made.' That is what she should have stood here this afternoon and said. Indeed, there was no evidence for the fact that she was actually mouthing Senator Abetz's July statement. That is the fact here.
We have a situation where there was a vexatious effort made in November, which is effectively a SLAPP suit, over the summer, to make sure that as much negative publicity could be generated as possible, with no evidence provided whatsoever. What is more, as our legal counsel provided in the submission to the Privileges Committee, it is inexcusable and inexplicable to understand why the President made certain recommendations with regard to this matter but not with regard to other similar matters that were brought before the Senate. That goes to this particular question in relation to the President's conduct, as has been outlined by my colleague Senator Brown.
In terms of the Kroger letter, as the legal advice says, it refers to a whole lot of matters that occurred outside the Senate. It goes on to make serious points about the inadequacy of Senator Kroger's allegations to the point where they ought not to have been considered in the first place because they were so vague. Under section 4 of the act, improper interference had to be actually proven, and there is nothing in the Senator Kroger assertion that would go any way to actually establishing that case. So what we have here is a number of deliberate changes. When people look at the documents that have been attached to this, they will see that Senator Kroger fails to make the point that the Wood donation occurred before the 2010 election and that the sale of the woodchip mill was not known about, could not have been thought about, prior to the time later in 2011 when that occurred. That link is not there, and the fact that those dates were conflated to try and make it look as if these all occurred in a very short period of time is just one of the massive dishonesties in this. When you look at the chronology that is presented, several things are left out and distorted in order to make what is, as the committee found, a merely circumstantial case. It is disgraceful that this was referred to the Privileges Committee. It is disgraceful that it took four months over the summer. The committee did not even bother answering the correspondence that we wrote to them.
We were the ones who were being subjected to defamation and yet the committee decided to go on holidays and not respond to any of the correspondence until the summer holidays were over. I am appalled that Senator Kroger finds this amusing, that she is not prepared to apologise for defaming fellow senators on the basis of no evidence whatsoever. It means that this whole process needs to be looked at seriously because what we have seen is absolute cowardice. We have seen vexatious complaint and malicious intent from people who ought to know better.