The drip-feed of incriminating stories about Labor senator Sam Dastyari and his dealings with Chinese interests continued to lubricate the country’s major papers, with the The Australian and Fairfax both printing “exclusives” this morning claiming Dastyari had asked deputy Labor leader Tanya Plibersek not to meet with a pro-democracy activist in Hong Kong back in 2015. A spokesman for Dastyari described the story, which cites “multiple” anonymous sources, as “complete rubbish”. Regardless, Attorney-General George Brandis has already referred Dasher to the Senate’s privileges committee over his relationships with Chinese donors.   

The media routinely describe the committee as “powerful”, but what is the privileges committee, and what power does it have? It’s been observed that, while Labor leader Bill Shorten could expel the embattled senator from the party, Shorten doesn’t have the power to kick Dastyari out of the Senate. So could being hauled in front of the committee be the end for Dasher?

What is the privileges committee?

The committee is consists of eight senators, four nominated by the leader of the government in the Senate, three nominated by the leader of the opposition in the senate and one nominated by a minority party and independent senators. The committee’s main function is to investigate conduct that is “apprehended to obstruct the work of the Senate”, and will only do so when it receives a reference from the Senate. 

What does it mean to ‘obstruct the work of the Senate’?

There are several ways someone can commit what the committee calls “contempts”, mostly related to interference with a senator undertaking their duties, whether through fraud, intimidation, inducement, or punishing a senator for their “conduct as a senator”. It also covers false reporting of Senate or committee proceedings, interfering with a committee witness, or misconduct by a committee witness (knowingly providing false evidence, failing to front a committee without an excuse, etc). 

The prohibition Dastyari has been alleged to breach is paragraph 6(3) of the privileges resolutions, seeking to obtain a benefit from his role as a Senator: “A senator shall not ask for, receive or obtain, any property or benefit for the senator, or another person, on any understanding that the senator will be influenced in the discharge of the senator’s duties …”

Brandis’ letter to new Senate President Scott Ryan alleges that, following the payments from companies Yuhu Group and Top Education Institute settling Dastyari’s debts, Dastayri “echoed Chinese policy positions”. 

Will this mean the whole story will come out?

A subplot in this ongoing drama has been the question of just how this information has made its way into the public domain; will the powers of the committee to summon witnesses and evidence mean that the process will be made less opaque? Not necessarily; the hearing of evidence by a Senate committee shall be conducted in public session, except where:

“… the committee accedes to a request by a witness that the evidence of that witness be heard in private session; the committee determines that the interests of a witness would best be protected by hearing evidence in private session; or the committee considers that circumstances are otherwise such as to warrant the hearing of evidence in private session.”

Given this story, in large part, concerns national security agencies, it seems unlikely all evidence would be given in public sessions.

How likely is it that he could be found guilty, and what could happen to Dastyari now?

The privileges committee has delivered over 150 reports since 1971 on matters that may constitute contempt, but only 12 times has it concluded (and had the senate agree) that contempts had been committed, and in only two of those cases were penalties imposed — mere reprimands, at that. Mostly, an apology or some other remedial activity has been considered sufficient. Section Seven of the Parliamentary Privileges Act gives each house the power to imprison for six months or fine up $5000 ($25000 for a corporation) anyone who has been found by that house to have committed an offence against it, but surreally, section eight prohibits either house from expelling any member. For Dastyari to face prison time would, obviously be huge departure from the existing precedent. Only once has a contempt against parliament lead to a prison sentence, and it wasn’t for a politician, but for two journalists, imprisoned for 3 months in 1955 for publishing articles intended to “influence and intimidate a member in his conduct in the house”.

Peter Fray

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