John Hogg (President) Share this | Hansard source

It has been the practice of presidents to participate in the discussion on a motion of dissent from a ruling in order to clarify the ruling or to respond to points which have been made. I do not intend to canvass the merits of my determination.

The ruling from which Senator Bob Brown dissented was not my determination on the matter of privilege raised by Senator Kroger. This is a matter which the Senate referred to the Privileges Committee unopposed on 24 November 2011. It is before the committee, and I caution senators against continuing to canvass those matters. When the committee reports the Senate will have the opportunity to adopt the committee's findings and recommendations or not as the case may be, and to make any decision on any matter of penalty that might arise. These are matters for the Senate as a whole, not the Committee of Privileges and not the President.

I also note that Senator Brown raised the issue of the participation of Senator Brandis in the inquiry. This is a matter for Senator Brandis himself, the Committee of Privileges and, ultimately, for the Senate if required. It is not a matter for the President. Presidents do not interfere in the conduct of committee inquiries, and it shows a complete lack of comprehension of the role of the presiding officer to suggest that they do.

The ruling that is the subject of this dissent motion is my determination not to give precedence to a matter raised by Senator Brown concerning Senator Boswell. It is disappointing that all senators contributing to this debate have wrongly characterised my determination in relation to the matter raised by Senator Kroger as a decision effectively recommending that the matter be referred to the Privileges Committee. It is no such thing. For the benefit of senators, let me set out what the process is under standing order 81 and privilege resolution 4, and the effect of a determination in accordance with those provisions.

First: standing order 81 sets out only the method for raising matters of privilege, unless they suddenly arise in the Senate:

A Senator intending to raise a matter of privilege shall notify the President, in writing, of the matter.

Paragraph 2 of the standing order 81 provides that:

The President shall consider the matter and 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.

I shall come to those criteria in a minute. But first it is necessary to understand the effect of this provision.

It does not provide for the President to consider the merits of the matter raised. It does not provide for the President to conduct a preliminary inquiry into the facts. It does not provide for the President to decide whether the matter should be referred to the Privileges Committee. Nor is it a recommendation that the matter should be referred. It is a determination about how the matter should be dealt with as an item of business—whether or not it should have precedence.

The origins of the procedure lie in the 1984 report of the Joint Select Committee of Parliamentary Privilege and its attempt to devise a procedure to ensure that matters of privilege could not be sidelined but came to the attention of the house concerned in a timely manner. This was to overcome the difficulty where in earlier times, and particu­larly in government dominated houses, the chances of a backbencher's notice of motion being debated and voted on could be remote. It was also the desire of the joint select committee to remove the presiding officer from controversial decisions that could put them at odds with their houses and/or their privileges committees.

The joint select committee considered that the then current procedures were flawed in requiring on the one hand matters of privilege to be raised at the earliest possible opportunity in order to be eligible for precedence and, on the other hand, requiring the presiding officer to make a determination that a prima facie case had been made out. The joint select committee recommended that the presiding officer's assessment of the matter be made against the criteria that were subsequently adopted by the Senate as privilege resolution 4, 'Criteria to be taken into account by the President in determining whether a motion arising from a matter of privilege should be given precedence of other business'. This mechanism ensures that a matter of institutional importance gets priority in the business program—no more and no less.

Each matter of privilege raised is considered against those criteria and only against those criteria. It is not a question of whether any prima facie case has been made. Moreover, each matter is considered independently of any other matter against the requirements of the standing order and privilege resolution 4. A determination in accordance with the criteria in privilege resolution No. 4 that a matter should be given precedence simply means that a notice of motion to refer the matter to the Privilege Committee appears at the top of the Notice Paper and is dealt with ahead of other business in the ordinary routine of business. It is then up to the Senate as a whole to determine the matter on its merits or on whatever other basis the Senate chooses to decide. If the President determines that a matter does not meet the criteria then the senator who raised it may take other action under the procedures of the Senate, including giving a notice of motion to refer it to the Privileges Committee. The Senate then decides that matter on its merits.

The procedures of the Senate have been developed over more than a century to suit the needs of the Senate. They are our standing orders and it is the responsibility of all senators to understand them. If they no longer suit the Senate then it is up to the Senate to change them, but I note in passing that the Parliamentary Privileges Act and the Senate privileges resolutions are highly regarded throughout the parliamentary world as representing best practice. I seek that the Senate support my ruling.