Privilege: Mr Setka

18 September 2019

The PRESIDENT: Senators, I have a statement to make relating to parliamentary privilege. By letter dated 17 September, Senator Patrick has raised a matter of privilege concerning comments of Mr John Setka reported in the media over the past weekend. The allegation is essentially that these comments amount to an attempt to intimidate crossbench senators in respect of their votes on a fair work amendment bill currently before the parliament. Where a matter of privilege is raised, my role is to consider whether a motion to refer the matter to the Privileges Committee should have precedence in debate. In doing so, I am bound to have regard only to the two criteria in privilege resolution 4. The first of these criteria seeks to reserve the Senate's contempt powers for matters involving substantial obstruction to Senate and committee processes or to the performance of senators' duties as senators. Any credible allegation that a person has sought to intimidate a senator to change their vote is a serious one, meeting the first of the criteria I must consider.

The second criterion, regard for the existence of any other remedy, recognises that the Senate is generally reluctant to deal with conduct as a contempt where another, more appropriate avenue for redress is available. It may be that there is an alternative remedy available in respect of the conduct reported as the foundation for these allegations. However, only the Senate can deal with allegations of improper interference with its own proceedings. Accordingly, on the basis of the criteria I am required to consider, I have determined that the matter should have precedence as a matter of privilege. The question of whether the matter should be referred to the Privileges Committee for investigation as a possible contempt is a question for the Senate itself. I table the correspondence and call Senator Patrick to give a notice of motion in respect of the matter.

Senator Patrick (South Australia): I give notice that, on the next day of sitting, I shall move:

That the following matter be referred to the Senate Committee of Privileges for inquiry and report:

Having regard to the statements made to the Senate by Senators Patrick and Lambie on 16 September 2019 and the documents tabled by the President on 18 September 2019:

(a) whether there was any attempt to improperly interfere with the free performance by any senator of their duties as a senator;

(b) whether there was any attempt to improperly influence any senator in their conduct as a senator, by intimidation, force or threat of any kind; and

(c) if so, whether any contempt was committed in respect of those matters.

I seek leave to make a short statement.

Leave granted.

Senator Patrick: Tomorrow I will ask the Senate to refer this matter to the Privileges Committee. I am hoping not just for support but for unanimous support. No-one in this chamber should ever cast a vote a particular way on the basis that, if they don't, they will be subject to abuse. The Senate must protect not only its members but the very core of democratic lawmaking.

The remarks made by Mr Setka go beyond threatening to run a campaign against Centre Alliance at the next election—an action which one would correctly characterise as 'just politics'. Rather, Mr Setka foreshadowed members of his organisation crossing paths with myself and Senator Griff at some future time and engaging in abuse. Mr Setka's comments must be considered in the context of an organisation that has a propensity, evidenced in judicial-decision reasonings in numerous cases, for regular contravention of the law and an apparent comfort with the use of coercive conduct.

As I shared with the chamber on Monday, I have been the uncomfortable and concerned witness to two CFMEU members accosting former senator Nick Xenophon at Perth Airport lounge at about the same time as the ABCC and ROC legislation was being voted on. In asking for my motion to be supported tomorrow, I put it to you that it is not something that Senator Griff or I should have to factor in when dealing with how to vote in this chamber. If we care about the integrity of the deliberations of this chamber and if we care about our deliberations being conducted free of external threat or coercion, then a very clear signal needs to be sent that this is not a situation that will ever be tolerated by the Senate.

I wish to advise the chamber that, as foreshadowed, the comments of Mr Setka have been referred to the Australian Federal Police, who are now looking into the matter. In that regard I would point out to the chamber that the elements and thresholds associated with a threat-related crime are different to the elements and thresholds associated with an attempt to improperly interfere with the free performance of any senator's duties as a senator, or an attempt to improperly influence a senator in their conduct as a senator by intimidation, force or threat of any kind.

Although the alleged offences stem from the same set of facts, a criminal offence and a contempt of the Senate are different matters that must be dealt with separately by different bodies. The police have no ability or jurisdiction to deal with a contempt of the Senate; only the Senate can deal with that. As such, knowledge of the referral to the police should have no influence on whether the Senate should support my referral motion tomorrow. It may influence the way the Privileges Committee approaches any contempt inquiry. Consequently, assuming a privilege inquiry does go ahead, I will ask the police to keep the committee informed of its investigations.

I seek protection from the Senate from threats of abuse, but I also seek protection for everyone who has served, is serving or will serve in this chamber. I urge support for my referral tomorrow.