Senate Committee of Privileges releases legal considerations

The Committee of Privileges has agreed to the request of Australian Greens Senators Bob Brown and Christine Milne and today released their lawyers' submissions on the referral about allegations originating from Liberal Senators Eric Abetz, George Brandis and Helen Kroger alleging corruption.

The case has already led to Senator Brandis SC, Senator Abetz's key co-accuser, recusing himself from the committee, after Senator Brandis was described in the submissions as an ‘accuser' who made ‘highly prejudicial and adverse comments' with the inescapable conclusion that Senator Brandis was involved, directly and indirectly, in the complaint, and who ‘had a duty to disqualify himself' for any participation in the Committee proceedings.

Senators Brown and Milne are represented by Ron Merkel QC, Frances Gordon, and Hobart solicitor Roland Browne, who have made it clear that an adverse finding may be challenged in the High Court. Costs are being sought.

The advice is that (extracts from the submission):

• The motivation for, and bona fides of, the Kroger letter and Senator Kroger's motion of 24 November 2011 must be seriously questioned;

• The material before the Committee does not disclose any allegation that warrants investigation;

• The Kroger letter makes highly selective and inaccurate use of the sources relied upon;

• Neither Senator Kroger, nor her supporters and co-accusers in this endeavour, Senators Abetz and Brandis, have any material upon which to formulate any particulars;

• There is no case to answer of contempt or breach of privilege whatever standard of proof is applied;

• If the conduct the subject of the referred matter were capable of constituting contempt as is alleged, then the acceptance of any significant donation by a political party in circumstances where a Member asks a question in Parliament that relates to an area of policy in which the donor has an interest could be perceived to be a contempt of the Parliament. This proposition need only be stated to reveal its absurdity;

• The way in which this matter has proceeded and the contrast drawn with the other matters can undermine the integrity of the Senate's process for dealing with matters of privilege and demonstrates the extent to which the process has been unfair to Senators Brown and Milne. At no point was that unfairness more apparent than when it became clear that journalists, but not Senators Brown or Milne, had had advance warning of the Kroger motion. The Senators await the Committee's findings on this matter;

• The President should take adequate time and receive independent legal advice in the assessment of a request for precedence. In the usual course the President should also seek a response from the persons subject of privilege-related complaints;

• There should be an urgent review of the Senate's procedures in contempt or privileges matters.