Rex Patrick (SA, Centre Alliance) Share this | Hansard source

The Senate has lost its mojo. I say that, noting that the UK parliament hasn't lost its. Last week, the chair of their parliament's culture, media and sports select committee invoked its power to compel the founder of the US software company Six4Three to hand over internal Facebook documents during a business trip to London. The Serjeant at Arms was dispatched to seize internal Facebook documents from the Six4Three owner, Ted Kramer, after CEO Mark Zuckerberg repeatedly refused to appear before a parliamentary inquiry. When Kramer failed to hand over the documents, he was escorted to the parliament and told that, if he didn't hand them over, he'd risk fines and imprisonment. He duly handed over the documents, which are believed to contain explosive revelations about Facebook and the Cambridge Analytica scandal, including confidential correspondence with Mr Zuckerberg.

They've got their mojo; we haven't. So where can we find it? Let me help the chamber. Section 49 of our Constitution states that the Australian parliament enjoys the same privileges that the House of Commons did at the time of Federation. To find out what that means, you should go to a book called A Treatise on the Law, Privileges, Proceedings and Usage of Parliament by Sir Thomas Erskine May, a former clerk of the House of Commons. The 1893 edition clearly sets out the powers of the UK parliament then and, therefore, of ours. It's required reading for all federal politicians. It confirms that the Australian parliament can enforce the powers and immunities it has to enable it to conduct its job properly and efficiently. Chapter III gives numerous examples of arrests and imprisonments for contempt over the centuries. On page 54 it states:

When the house has ordered the Serjeant to execute a warrant, the house sustains his authority, and punishes those who resist.

With regard to the assistance the Serjeant at Arms can receive from civil authorities to execute such a warrant, it states that:

Both houses consider every branch of the civil government as bound to assist, when required, in executing their warrants and orders, and have repeatedly required such assistance.

It also says:

… all mayors, sheriffs, under-sheriffs, bailiffs, constables, headboroughs, and officers of the house are required to be aiding and assisting in the execution—

of warrants and orders. And it says:

… the journals abound with cases in which witnesses have been punished … for pre-varicating or giving false testimony, or suppressing the truth; for refusing to answer questions, or to produce documents in their possession.

I was particularly interested in one story which ended with two judges being arrested. In 1689 an action was brought against the Serjeant at Arms for executing the orders of the house in arresting certain persons. The Serjeant at Arms pleaded to the jurisdiction of the court, but his plea was overruled and judgment was given against him. The house declared this to be a breach of privilege, and committed the judges, Sir F Pemberton and Sir T Jones, to the custody of the Serjeant at Arms. That's how the UK parliament did its job several hundred years ago—and, indeed, last week.

At the start of this year, Thales, a defence company, unlawfully tendered documents to the Federal Court which were subject to parliamentary privilege. Of course, the court fulfilled its obligation to make a determination as to whether or not that evidence was covered by privilege. But, thus far, the parliament has done nothing about the breach. It really rests on the parliament to protect its own privileges and rights. It's not something we subcontract out to the courts. The privilege belongs to the parliament and extends to people when they make submissions to inquiries or petitions to the parliament. I will be bitterly disappointed if the JCPAA, which is aware of the breach, doesn't find its mojo. The breach should be referred to the Privileges Committee to deal with and perhaps make some appropriate ruling against Thales's CEO. I know the CEO; he's a nice chap. But perhaps a night or two in the cell in our basement—Annabel Crabb tells me there's one somewhere—will deter a repeat of a breach from them and from others.

In the broader context, the actions of the British parliament in the Facebook case show that the Australian parliament is now lagging behind when it comes to establishing its authority, and this is the fault of each and every senator in this place. We must not exercise power irresponsibly, but we must also recognise that there are circumstances where it is irresponsible not to exercise a power.