Procedure Committee First Report of 2012

Attachment A - Review of processes for raising and referring matters of privilege: discussion paper

The issue

In its 150th Report, the Committee of Privileges recommended that:

the Procedure Committee review the processes for raising and referring matters of privilege, as set out in paragraphs 2.23 and 2.24.

The Senate adopted the recommendation on 22 March 2012.

The Privileges Committee noted that the Senate, in deciding whether to refer a matter to the committee involving “highly political considerations” should, as far as possible, ensure that it had the relevant information before it, “including by ensuring the opportunity to debate these matters is always available”. The report continued:

Debate on privilege matters

2.23   The committee notes that, given the quite contrived routine of business which now applies in the Senate, the effect of determining that a matter have precedence is somewhat blunted. In earlier times, such a matter would be called on as the first debate of a sitting day, ensuring that senators would have an opportunity, should they so wish, to address the matter. On 24 November 2011 – the final ordinary sitting day for the year – it appears that the routine of business would not have allowed the time to debate the matter at hand.

2.24   The committee considers that the opportunity to debate proposed references is important, both in enabling senators to properly put their views on the record and in explaining the processes involved in referring such matters. To that end, it may be appropriate that matters granted precedence be called on at the commencement of the relevant sitting day, rather than as the first item in a category possibly not called on until late in the day. The committee recommends that the Procedure Committee consider whether the standing orders should be amended in this regard to ensure that, when a matter such as this is granted precedence, it means precedence over all other business.

In essence, the Procedure Committee is being asked to consider whether precedence should mean just that, or whether should it continue to have the somewhat artificial interpretation that is currently followed.

Current procedures for raising matters of privilege

Matters of privilege are currently raised in accordance with standing order 81 (unless they arise suddenly in the Senate, in which case standing order 197 applies). Standing order 81 relevantly provides:

(1)        A senator intending to raise a matter of privilege shall notify the President, in writing, of the matter.

(2)        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.

(3)        The President’s decision shall be communicated to the senator, and, if the President thinks it appropriate, or determines that a motion relating to the matter should have precedence, to the Senate.

(4)        A senator shall not take any action in relation to, or refer to, in the Senate, a matter which is under consideration by the President in accordance with this resolution.=

(5)        Where the President determines that a motion relating to a matter should be given precedence of other business, the senator may, at any time when there is no other business before the Senate, give notice of a motion to refer the matter to the Committee of Privileges, and that motion shall take precedence of all other business on the day for which the notice is given. (emphasis added)

…

“Business” in the technical sense does not mean everything that the Senate does, although the term “routine of business” as set out in standing order 57 does have that meaning. Within the routine of business, there is a place for “government business”. Standing order 58 defines the category of ‘business of the Senate’ and provides for it to take precedence of government and general business for the day on which it is set down for consideration. Standing order 59 then provides for government business to take precedence of general business except at certain times on Thursdays. By longstanding convention, the reference to ‘all other business’ in standing order 81(5) has been taken to mean precedence over all other categories of business.

However, there are times each week when the routine of business specifies “government business only” or “consideration of orders of the day relating to private senators’ bills only”. Even if there are matters of privilege or business of the Senate items on those days, they do not take precedence over government business in the “government business only” times or private senators’ bills in the time for such business on Thursday mornings. They do not take precedence until the “normal” time for business arrives which can be late in the day. On days when the Senate operates under limitations of time or other special procedures, the time for “normal” business may not arrive at all.

Proposed procedures for raising matters of privilege

The Privileges Committee’s suggestion is for matters of privilege granted precedence to be dealt with at the commencement of the day for which notice has been given. The attached chart shows where matters of privilege are dealt with now and where they would be dealt with if the Privileges Committee’s proposals were adopted.

— potential impact of the proposals

If the proposals were adopted, on Mondays, Tuesdays and Wednesdays, the commencement of “government business only” could be delayed, while on Thursdays, the commencement of private senators’ bills could be delayed. However, it would be up to the Senate through the normal operation of the standing orders whether, and for how long, the matter of privilege would be debated.

Also note that under the current temporary order relating to consideration of private senators’ bills, divisions may not be held before 12.30 pm on Mondays. Thus a matter of privilege considered first thing on Monday could involve a deferred vote if the matter was a controversial one on which senators wished to divide. By having such matters dealt with at the start of day, the aim of the Privileges Committee in ensuring an adequate debating opportunity would be met, and the normal rules of debate would apply to the debate and its management.

What is the Privileges Committee trying to achieve?

From the paragraphs quoted above it is clear that the aim of the Privileges Committee is to ensure that there is an adequate opportunity for senators to debate the proposed reference as a basis for making a decision whether to refer it to the committee.

However, this is only an issue where the matter is a contentious one.

For the most part, referrals to the Privileges Committee have been agreed to without debate because they involve an exercise of the contempt power to protect the Senate and, more particularly, its committees from acts which may constitute an improper interference with the ability of the Senate and its committees to perform their functions. Thus most inquiries involve allegations of false or misleading evidence, unauthorised disclosure of committee documents, or attempts to penalise or interfere with witnesses. The institutional character and significance of such matters is uncontested, as have been most of the referrals.

The statistics on matters of privilege are of interest.

From 1901 to 1965, 17 matters of privilege were dealt with, all but one by debate or other action in the chamber. In 15 cases, the matter was withdrawn, negatived, or ruled out of order or no action was taken. In one case, the conclusion was that the alleged intimidator acted out of ignorance and action should not be taken unless the offence was repeated. In the final case, a select committee of privilege was established to inquire into a particular allegation of improper interference with a senator. The committee concluded that the actions in question did not amount to intimidation and implied that senators should be capable of looking after themselves.

Since the establishment of the Privileges Committee in 1966, there have been 79 allegations of contempt considered for referral to the committee. Of these:

• 75 matters (or 95%) were referred
• 4 proposed referrals (5%) were negatived (two of those relating to the Grech matter)
• 51 matters (65%) were dealt with as formal business, 6 of those (or 8% of the total) involving statements by leave
• 28 matters were the subject of motions other than at formal business and of these:
  • 18 (or 23% of the total) were the subject of debate
  • 10 (or 12% of the total) were determined without debate
• overall, 55 matters (70%) were determined without debate and the remaining 24 matters (30%) were the subject either of debate or statements by leave.

The first division on a matter of privilege did not occur till 1997 and the Senate has divided in relation to only four other matters, all of which could be characterised as “political”. The five matters (constituting 6% of the total) were:

• alleged improper interference by the Attorney-General with the President of the ALRC in relation to evidence to the Joint Committee on Native Title and the ATSI Land Fund (1997) (agreed to)
• alleged false statements made to the Senate (the Colston matter, 1997) (agreed to but contested amendments to the motion deferred consideration of the matter till any prosecution had been finalised)
• alleged failure to declare interests (the Parer matter, 1998) (negatived)
• alleged false or misleading evidence (inquiry into grants under the Regional Partnerships Program, 2005) (negatived)
• alleged false or misleading evidence or collusive prearrangement of questions (involving three of the four Godwin Grech-related matters in 2009, two of the three being negatived).

In view of these statistics, the potential impact of the proposed changes is likely to be minimal, given that most matters to date (70%) have been determined without debate and only 6% of matters have involved divisions. Thus the potential for scheduled business to be delayed only arises where the matters raised are of particular significance or contention. It is arguable that when such matters arise, the Senate should be prepared to give priority to matters of institutional integrity. In any case, in considering a motion for referring a matter to the Privileges Committee debate has usually been short. This is because it is recognised that debate should not anticipate the committee’s inquiry (ASP, 5th ed., p. 653)

Achieving the change

There are two methods for achieving the change proposed by the Privileges Committee:

• the first would be to change the interpretation of the current words in standing order 81(5) by a declaration that the words are to be given their literal meaning
• the second is an amendment to standing order 81(5) as follows:

Where the President determines that a motion relating to a matter should be given precedence of other business, the senator may, at any time when there is no other business before the Senate, give notice of a motion to refer the matter to the Committee of Privileges, and that motion shall take precedence as the first item of business of all other business on the day for which the notice is given.

A broader question—is more radical change warranted?

— Determination of precedence

Since the adoption of the Privilege Resolutions in 1988, the procedures for raising matters of privilege have included a specific role for the President. The President’s role is to apply the criteria in Privilege Resolution 4 to the matter raised to determine whether it should come to the Senate’s attention at the earliest opportunity. The criteria are 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.

The effect of a determination of precedence is to ensure a qualifying matter comes before the Senate for its decision. Recent events suggest that determinations have been misinterpreted as more than this; in effect, as a recommendation by the President that a matter should be referred to the Privileges Committee. This misunderstanding has persisted despite the occasions on which precedence has been granted but the Senate has nonetheless voted against the referral, all of them occurring since 1998. There is a clear distinction between the role of institutional filter performed by the President (is the matter one which should properly be afforded precedence?) and the Senate’s own role in making the decision – on whatever basis – that a matter should or should not be referred to the Privileges Committee for inquiry.

— Background to the current procedure for determining precedence

The whole point of precedence is to ensure that matters of institutional importance have an opportunity to be dealt with as an item of business. In the context of the Westminster origins of the majority of parliamentary procedures, the significant feature of House of Commons practices since the emergence of more stable and disciplined government and opposition blocs in the late 19th century is the dominance of the business agenda by the government. Commenting on proposed procedures for dealing with matters of privilege that were being considered by the UK House of Commons Select Committee on Parliamentary Privilege in 1967, the Clerk to the Committee provided the following advice:

… the proposal that the Speaker should be able to appoint a time for consideration of a motion traverses the general rule of the House that the Government has the right to arrange the business of the day—a right which they are likely to adhere to.

This “general rule” was reflected in the practices of other houses including the Senate where, as noted above, standing orders provided for government business to have precedence over general business except at certain times. When the Senate Privileges Committee was established in 1966, similar thinking was behind the process adopted for dealing with matters of privilege (which copied the procedures of the House of Representatives). They would get precedence over other business (principally, government business) provided the President was satisfied that:

• there was a prima facie case; and
• the matter had been raised at the earliest reasonable opportunity.

The prima facie requirement was always problematic because it was misunderstood as a requirement for the President to be satisfied that a prima facie case had been made out by the material presented, rather than a determination that, prima facie, there appeared to be a case to answer. When the Joint Select Committee on Parliamentary Privilege examined the matter in 1984, it recognised the potential for the prima facie requirement to bring presiding officers into conflict with their privileges committees and their houses. With a determination of precedence taken as requiring a degree of pre-judgment of the substantive issues by the presiding officer because of the prima facie criterion, a finding by the committee that there was no case to answer could leave a presiding officer out on a limb at best.

Consequently, the Joint Select Committee proposed the criteria that were subsequently adopted by the Senate in 1988 as Privilege Resolution 4. These criteria were designed to take out of the equation the apparent requirement for the presiding officer to make at least a preliminary judgment of the substantive merits of the matter. Henceforth, precedence would be determined on a more objective basis, but the perceived need to afford precedence continued to be based on the Westminster paradigm of government domination of the business agenda. Without a process, such important matters might not be dealt with.

— Is this concept of precedence relevant for the Senate in 2012?

Such a paradigm had long been under challenge in the Senate which developed many innovative, non-Westminster procedures. The concept of business of the Senate in standing order 58 was one of these.

First formalised in 1922, it grew from the early practice of disallowing delegated legislation, and the recognition that there needed to be a reasonable opportunity to deal with such matters which were invariably raised by senators other than ministers. Business of the Senate was business which took precedence over government and general business. As well as disallowance motions, it included motions concerning the constitutional qualifications of senators and for leave of absence for senators. These matters would appear at the top of the Notice Paper and be considered ahead of all other business because they were matters designated by the Senate as always warranting priority treatment.

As committees grew in importance in the 1930s, orders of the day for the presentation of committee reports were added. When the system of legislative and general purpose standing committees was established in the 1970s, motions for the reference of matters to those committees were categorised as business of the Senate and therefore taking precedence over other business.

Finally, in 1989, when the standing orders were thoroughly revised, references to all standing committees, not just the legislative and general purpose standing committees, came under the umbrella of business of the Senate. Adoption of the new standing orders, to come into effect in 1990, occurred after the adoption of the Privilege Resolutions in February 1988. By the latter decision, motions to refer matters to the Privileges Committee were given precedence over all other business once the President had made a determination to that effect. By the former decision, motions to refer matters to the Privileges Committee were given precedence over all other business (except matters of privilege) because of their inherent character as references to a standing committee.

With the original rationale for giving precedence to matters of privilege now satisfied by two different procedures, the question remaining is whether the President’s role is a necessary one. If all references to the Privileges Committee were dealt with in the same way as other committee references, as business of the Senate items, they would still have precedence over other business in the normal routine of business (but not in the government or general business only times). They would be matters solely for the Senate to determine.

 

Clerk's Office
June 2012

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