Ron Boswell (Queensland, National Party) Share this | Link to this | Hansard source

Yesterday we were debating the dissenting motion from Senator Brown. His original complaint lodged on 25 November referred me to a Privileges Committee and suggested that I had received a $30,000 donation from Metcash. I refute that, and put it on the record that yesterday Senator Milne accused me of virtually the same thing.

I made a statement—which you pointed out, Mr President—to the Senate on 26 November 2010 which said:

I have not received any donation from Metcash. The campaign donation referred to went directly from Metcash to the then Queensland branch of the National Party of Australia. I am informed by the party that it banked the donation in its central campaign account in July 2007.

I now put the matter on the record so that Senator Brown and Senator Milne will not repeat the accusation that I received money directly. There are a number of other retailers that have had donations from the Labor and Liberal parties.

On, I think, 24 November, Senator Kroger put before the Senate a notice of motion referring Senator Brown to the Privileges Committee. Senator Brown then hit out and found someone else about whom he could put a notice of motion up to refer them to the Privileges Committee, and that someone happened to be me. That was 12 months after I had made a statement in the Senate. As you correctly pointed out, Mr President, I did refer it to the committee. A letter was then received by the committee from legal counsel pointing out that it would be inappropriate for a Senate inquiry to run at the same time as the matter was before the court for determination. I then gave my opinion to the committee that I did not think we should proceed and that it should be withdrawn. On two occasions I denied that a $30,000 donation came to me, and I also put my opinion to a committee that I thought the matter should be withdrawn because it was going before the court. That is exactly what you, Mr President, read out.

Yesterday Senator Brown came in here calling foul, said that he has been ill-treated and accused you, Mr President, of ill-treatment. If Senator Brown has been ill-treated then I have been ill-treated, because he has done exactly the same to me as has been done to him. He came in yesterday and proposed that the notice of motion referring me to a Privileges Committee not be withdrawn but be postponed to 22 March. I believe this is hypocrisy at its worst. He has accused the Senate of holding him out over the Christmas period of two or three months, making him concerned about what was going to happen and pointing out that he could go to jail. But he does exactly the same to me. If Senator Brown were consistent, he would have withdrawn the resolution motion yesterday, but he did not—he postponed it.

What we have here before us is Senator Brown not accepting a ruling but trying to turn this place into a High Court. He has sought legal representation and he is going to change this Senate where we have a fair amount of give and take into a court. I find it totally unacceptable that he would do this.

I certainly have not got the money to be able to brief a SC or a Queen's Counsel. I have not got the money to do that, and there will be many other people in similar circumstances to mine. Senator Brown has got the money. If referred to the Privileges Committee, what are we supposed to do? Are we supposed to go out and hire a SC? Senator Brown got a huge donation—good luck to him. There is no reason why, after he has cried foul, he should then turn on me and say, 'Yes, Senator Boswell did this.' I have clearly stated and laid down before the Senate a statement, which you have accepted, that says, 'Yes, there was a donation. It went to a party. The party banked it.' Many others have received donations from other retailers. I suspect that the Greens have received many other donations. Donations are part of political life. Politics cannot run without money. But that does not mean you take money for a favour. I certainly have never done that.

I was incensed when the ACCC ruled out a takeover bid by Metcash. I have always supported small business and by blocking a Metcash takeover, the ACCC was preventing the independent sector building up and having the muscle to be able to compete with Woolworths and Coles. I wrote an article in the Australian about that and my views were actually supported by the court of Australia. It was then appealed, and my views again were supported by the appeal, which allowed the Metcash takeover to go through. So to suggest that I did anything in return for a favour is something I have never been accused of in my life—

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

And neither have we.

Ron Boswell (Queensland, National Party) Share this | Link to this | Hansard source

and I find it pretty hard to take.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

And so do we.

Ron Boswell (Queensland, National Party) Share this | Link to this | Hansard source

If you do find it hard to take, don't turn around and do the same thing to me, Senator Milne, whom I have some respect for.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

You voted for this to happen.

Ron Boswell (Queensland, National Party) Share this | Link to this | Hansard source

Senator Milne turns round to me and says, 'Well, so do we.' You have done exactly to me as other people have done to you.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

But the President ruled differently on both occasions.

Ron Boswell (Queensland, National Party) Share this | Link to this | Hansard source

Of course the President ruled differently, because I made a statement to the parliament. My reference to a committee was withdrawn. It was all neutralised. For you to turn this around is one thing, but not to accept a ruling of the President is another thing. But then to turn this into a court where we have all got to go sets a precedent where we all man ourselves up with SCs and QCs and then find out that this is the way we have got to fight actions—

Senator Milne interjecting—

John Hogg (President) Share this | Link to this | Hansard source

Order! Just address the chair and there should be no interruptions.

Ron Boswell (Queensland, National Party) Share this | Link to this | Hansard source

You are right. This is a very serious matter and we are going down a very dangerous track when people come into this place, arming themselves with SCs, and we get opinions from legal firms. It is going to make this place a nightmare. No-one will ever be able to say anything. This is the point. We have privilege in this place, and that is being abused by the reference by Senator Brown, who is going to arm himself up, man up, with SCs and advice from the legal fraternity.

Senator Brown, you have got the option today to withdraw it. If you have any regard for the Senate as a place of free debate, you will withdraw it. But to take out your vengeance on the Presiding Officer when he was doing his job is just unacceptable. It is unacceptable from the Labor Party and it is unacceptable, I would imagine, from the Independents, and certainly from the Liberal National Party, it is totally unacceptable. So I ask you to just think about this before you go ahead. You are opening up new territory here, dangerous territory.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Mr President, I rise on a point of order. Senator Boswell alleges new ground is being opened up here. The 1987 act actually does put it under the High Court. It is not something we are doing, Mr President—

John Hogg (President) Share this | Link to this | Hansard source

That is debate; that is not a point of order, Senator Milne.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

But Senator Boswell is probably the only person here who voted for it.

John Hogg (President) Share this | Link to this | Hansard source

That is debate, not a point of order.

Ron Boswell (Queensland, National Party) Share this | Link to this | Hansard source

I have been here since 1983, and in the 29 years and some months I have never seen anyone coming into this place with legal opinion. It is not what this place was intended for. I find that the use of legal opinion against the Presiding Officer is totally unacceptable and we on this side of the chamber—and I suspect the other side of the chamber—will not have a bar of it.

John Hogg (President) Share this | Link to 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.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Mr President, I certainly support your ruling. I rise primarily in my capacity as Deputy President in support of the statement you have just read to the chamber.

Mr President, you have covered a number of matters that I was going to cover so I will not go over those in detail. However, I was concerned yesterday during the debate. Again, with all respect to my colleague Senator Boswell, the subject matter of the debate has been lost in the fact that we are only dealing with the dissent in you not granting precedence to the motion moved by Senator Brown. This is what the Senate needs to clearly understand, because there has been some confusion with the two motions and there has been a crossover of debate, and that is what disturbs me as a custodian, with you, of the practices and procedures of the Senate. Mr President, I believe you have rightly ruled in what you have said and you have also moved towards addressing some of the confusion about the debate.

I will highlight what happened. Senator Kroger wrote to you, Mr President, prior to 23 November last year setting out a matter of privilege and asking for that to be given precedence. That is the first trigger in this whole debate. The second matter was that you gave a statement on 23 November giving precedence to Senator Kroger's letter, followed up by a motion that went through the Senate on the following day, 24 November. That motion was then disposed of in that particular point in time by resolution of the Senate to give precedence to a matter of privilege raised by Senator Kroger referring to Senators Brown and Milne. That was dealt with there and then. That is the first item.

The second item is that, subsequent to that, Senator Brown wrote to you again—I am not sure of the time he wrote to you but I believe it was subsequent to that motion—and sought precedence on a matter of privilege for Senator Boswell. You then reported back to the Senate on 25 November and indicated that no, you would not give precedence.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Then it is a question of consistency.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Consistency was not given, but equally the report back to the Senate was then dissented upon by Senator Brown on that day. The timing of that was at the end of the parliamentary year, which we have all discussed.

From there, it comes to the commence­ment of this session of parliament. Yesterday the debate which concerns me moved into the detail of the matters raised by Senator Kroger and the defence given by Senators Brown and Milne, and again today by Senator Boswell. It is on both sides of the chamber. That is not the substance of what was before the Senate. What is before the Senate is dissent in your ruling, Mr President, and you have outlined why you believe your ruling is adequate and accurate. I support you in your statement and I support the rationale behind your ruling.

I move to a couple of matters that were raised and which I think need to be clarified. They were raised in debate yesterday and have, I think, left a gap or some misunderstanding as to what the role of the Senate or the Privileges Committee can be in these matters. I particularly refer to Senator Brown yesterday raising the matter of criminal proceedings. There are numerous safeguards and matters that happen under the Constitution in our standing orders. In relation to what Senator Brown raised so there is no doubt left as to where this matter is heading, Senator Brown and, I believe, Senator Milne, raised the matter of potential criminal proceedings.

With respect to paragraph (b) of privilege resolution No. 4 there are various criminal offences that may be relevant, and these include: (a) section 28 of the Crimes Act 1914, which provides for an offence of interfering with the exercise of a political right or duty; and (b) various offences in the Criminal Code Act 1995 relating to corruption and bribery of Commonwealth public officials, which includes members of parliament.

Senator Brown indicated that it was apparent that criminal proceedings could flow from this. However, the asking of the questions by Senators Brown and Milne is central to the case in Senator Kroger's report that such actions are proceedings of the parliament. Being proceedings of the parliament within the meaning of article 9 of the Bill of Rights of 1688, and section 16 of the Parliamentary Privileges Act 1987 which we have been discussing, there is no capacity for such proceedings to be examined for the purpose of any criminal investigation or proceedings. As a consequence, the only remedy of the allegations and the conduct lies within the Senate's contempt jurisdiction. To state that clearly, it was left hanging yesterday that there was a potential criminal action resulting from what the Senate can determine. That is not the case. It is not the case because the statements were made under privilege here in this parliament.

In relation to the matter raised about Senator Boswell, and again it was the subject of debate yesterday and today, Senator Boswell has clearly outlined the matters concerned. Mr President, you determined—and this was some time ago now—that the matter:

… 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 …

You also said:

… 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.

Mr President, whilst we have delved outside of the strict matter that was raised by Senator Brown—and it is his right to do so—in dissenting from your ruling, I wanted to clarify some of the points because I think it has left a cloud over what the real debate is and what the real issues are; hence my comments. I reiterate again that I do support your statement and your rulings.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank the contributors to this debate, but I will respond to what the speakers in the coalition and you, Mr President, have had to say. To go straight to the Deputy President's contribution just now, where he contended that this was in no way a matter that could be seen as criminal, what he conveniently overlooked is that the Privileges Act 1987 made a breach of privilege subject to a potential jail sentence and/or very heavy fine. If the Deputy President does not find that to be a very serious matter which takes these references to the Privileges Committee right into the domain of being equivalent to criminal accusations in the court then his logic is of a different kind to that which the ordinary person would levy.

You, Mr President, and the Deputy President have portrayed to this chamber that you were in fact judicious in referring the proposal from Senator Abetz, which came through Senator Kroger—and that is where it came from; there has been no denial of it—concerning matters impugning Senator Christine Milne and me to the Privileges Committee. But that decision involved similar issues as the proposed reference to the Privileges Committee concerning Senator Boswell which I then put to you for consideration—and on that matter you did not take the same position. Quite clearly there is a double standard involved. You made your decision against the Leader of the Australian Greens and the Deputy Leader of the Australian Greens on a matter analogous to the one which Senator Boswell has now said is causing him great difficulty, which creates great upset, which he thinks is unfair, which he thinks has no merit, which he thinks has no substance, which he thinks should not have been brought into this Senate in that way and which he thinks derogates from the standards of the Senate.

Every one of those things applies to the proposal Senator Kroger put to you, Mr President. The only difference here is that you decided, in the case of Senator Milne and me, to propose that the Senate give precedence to a motion for the matter to be referred to the Privileges Committee. I do not think the merits of the case of Senator Boswell or, consequent upon that, of the proposals put to you by me regarding Senator Cash and Senator Joyce are different in any significant way from the merits of the proposal put to you by Senator Kroger relating to Senator Milne and me. You have apparently applied a double standard in giving precedence to the matter relating to Senator Milne and me but not to the matters relating to other senators. History will judge you for that double standard. Because you turned down my proposal that you should give precedence to the matter relating to Senator Boswell—I did not want to bring this up and never have, Senator Boswell—history will judge you as having made a biased and wrong decision, one you should never have made.

The other thing the Deputy President failed to consider was that, in matters of presidential recommendation to the Senate—when a Presiding Officer recommends that a matter be given precedence—as the 1984 report of the Joint Select Committee on Parliamentary Privilege found, it is then almost invariably adopted by the relevant house—be it the Senate or House of Representatives. If the President says, 'Yes, I accept it,' it will go to the Privilege Committee. If the President says no, it does not. You said yes in the matter relating to Senator Milne and me. You said no in the matter relating to the three opposition senators where I contend that, in each case, the merits of a reference were higher than those relating to Senator Milne and me. Senator Boswell, quite correctly, said that he had put his case on the record. And so had Senator Milne and I. In fact, the donation involved was quite proper and legal. It has been highly publicised. It has been on the front page of the Australianand, of course, the only journalist here in the gallery is from the Australian. And quite proper and legal too, of course, is the fact that it was spent on the election. And through you, Mr President, to Senator Boswell, the donation went to the Australian Greens, not to either Senator Milne or me. And so too was it posted by the Australian Electoral Commission—and, under the electoral laws, that was a year before it needed to be. And I might add that not a penny of that went to either Senator Milne or me.

The other matter I raised in the speech I gave yesterday was this. On a serious matter like this, Mr President, it would have been prudent of you, having received Senator Abetz's accusations and time line through the letter to you from Senator Kroger, to have asked Senator Milne or me whether there was some response that would put your mind at rest that this matter should not go to the Privileges Committee. But you did not. You had time to consider it. Again, the report of 1984 says that the applicant—in this case, Senator Kroger—should have time to consider it and so should the Presiding Officer. Well, you did not do that. You did not even extend to Senator Milne or me the simple courtesy of asking us if we could make a response to this. There was nothing to have prevented that course of action except your failure to take it up.

Moreover—and I put this to your deputy, who seems not to have understood the importance of the time lapse involved—I read out to the Senate yesterday that the committee report of 1984 underscored that there should not be an unreasonable delay between the events that effectively lead to the allegation of contempt taking place and a request to the Presiding Officer being made. But, in this case, five months elapsed. Mr President, if you can show where in history such a time lapse has occurred and a Presiding Officer has then accepted a proposal of a reference to a Privileges Committee, then your studies will have gone further than mine—because such an occurrence does not exist. You were derelict in your responsibility to turn down the application from Senator Kroger because of that efflux of time.

What in fact happened, as Senator Milne and I have both explained to this chamber, is that Senator Abetz, who I note is not present in the chamber, through Senator Kroger, wrote to you in the last week before Christmas, effectively through a slap writ process, to have this matter dealt with unduly hastily so that there could be no adequate response from Senator Milne or me. And nor could the matter be dealt with by the committee before the months of efflux of the Christmas break. In doing so, you facilitated an ambush from the several senators opposite, to the detriment of Senator Milne and me and also to the great and quite disgraceful detriment of the long upheld Senate tradition of fairness not only being seen to be done but actually being done.

There must be the appearance of a reasonable case that you should consider before you make the sort of decision that you made—but there was not. For any reasonable person who reads the proposals that I consequently put forward to you with regard to Senator Cash, Senator Boswell and Senator Joyce, the differences in the charges, when compared with the matter relating to Senator Milne and me, are not real. If you take up one, you take up the lot. If you turn down one—as you should have—you turn down the lot. I think your decision to effectively reject my application in the matters regarding Senator Boswell, Senator Cash and Senator Joyce was correct. But what that process has done, Mr President, is highlight your unprecedented double standard in accepting this ambush from the vexatious Senator Abetz, through Senator Kroger, to have Senator Milne and me put before the Privileges Committee.

Finally, I say this. One of the things that the joint committee was very concerned about in 1984—and that concern has not changed—was that, if such matters as these are not dealt with expeditiously, it may lead, quite unfairly, to the impugning of the reputation of senators in the public arena. And that is just what happened. Mr President, when you got up on 23 November to give your adjudication on Senator Kroger's application against Senator Milne and me, by allowing Senator Kroger to know you were going to speak, you facilitated the Australian committing to the editorial destruction of the Greens in the press gallery. You did not have the courtesy and you did not use your office to inform Senator Milne or me that you were about to make this extremely serious decision on charges that we were unaware of. You did not have the courtesy, let alone the judgment, to inform us. I find that lapse of judgment or that failure of courtesy to your fellow senators, while at the same time giving Senator Kroger the ability to tip off the hostile press, a remarkable failure.

Helen Kroger (Victoria, Liberal Party) Share this | Link to this | Hansard source

Mr President, I rise on a point of order. We have been very tolerant for the last two days with the way in which Senator Brown has prosecuted his case. I ask him to withdraw suggestions that I have set up members of the press or—

John Hogg (President) Share this | Link to this | Hansard source

Order! That is not a point of order, Senator Kroger. That is a point of debate or a personal reflection. If you wish to take that up at a later stage you may.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thank you, Mr President, your ruling on this occasion is correct. However, the process that you allowed to be set in train led to national publicity, through the Australian newspaper, to the great detriment of my and Senator Milne's reputations. That is unforgivable. There has been a long history of concern about that and you ought to have been concerned about it, Mr President. However, you were not and you failed to properly protect senators from that process and the opposition took the opportunity. Senator Kroger says she did not, but it was not Santa Claus who told the Australian, Mr President, so if she is implying that your office did then that is a very serious matter indeed. Whatever it is, the opposition knows the truth here and they are not likely to admit to it, because that is not their standard of character.

Mr President, I have very broad shoulders and so does my colleague—

Senator Kroger interjecting—

The senator who interjects was notably absent from this debate, although she allowed herself to be engineered into being a key player in it. If she wanted to defend her actions she should have gotten to her feet, but there you go. That is how this is.

I reiterate, Mr President, that your decision was wrong and you can expect that it is our decision to take all measures possible, feasible and reasonable to defend ourselves from your failure to properly use the offices of your chair to protect our interests in the way you ought to have.

John Hogg (President) Share this | Link to this | Hansard source

The question is that the ruling of the President be dissented from.