Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

At the request of Senator O'Neill, I move:

That the Senate—

(a) notes that:

(i) the law of parliamentary privilege is intended to protect the ability of legislative Houses, their members and committees, to exercise their authority and perform their duties without undue external interference, and

(ii) an aspect of that law is the protection of the legislature against improper interference by the judiciary and the executive;

(b) further notes and affirms that:

(i) the powers, privileges and immunities of the Senate and the House of Representatives are secured through s.49 of the Constitution, and include the traditional freedoms formulated in Article 9 of the Bill of Rights 1688, protecting speech and debates in Parliament against being impeached or questioned in any court or place out of Parliament,

(ii) the protection of privileged material in proceedings of courts and tribunals, descended from Article 9, is declared and enacted in s.16 of the ParliamentaryPrivilegesAct1987,

(iii) the protections recited in Article 9 and secured through s.49 are not confined to courts and tribunals, but also encompass the protection of privileged material against incursion by the executive and executive agencies,

(iv) the protection of privileged material against seizure by executive agencies under warrant is acknowledged and secured by a settlement between the legislature and the executive, whose purpose is to ensure that search warrants are executed without improperly interfering with the functioning of Parliament, and

(v) the National AFP Guideline developed under this settlement is intended to enable informed claims of privilege to be made and determined, with seized material sealed with a third party until those claims are resolved;

(c) declares, for the avoidance of doubt:

(i) that the right of the Houses to determine claims of privilege over material sought to be seized or accessed by executive agencies adheres regardless of the form of the material, the means by which those agencies seek seizure or access, and the procedures followed, and

(ii) in particular, that these rights adhere against the covert use of intrusive powers, by which agencies may seek to seize or access information connected to parliamentary proceedings without the use or presentation of warrants;

(d) requires the executive and executive agencies to observe the rights of the Senate (House), its committees and members in determining whether and how to exercise their powers in matters which might engage questions of privilege; and

(e) calls on the Attorney-General, as a matter of urgency, to work with the Presiding Officers of the Parliament to develop a new protocol for the execution of search warrants and the use by executive agencies of other intrusive powers, which complies with the principles and addresses the shortcomings identified in reports tabled in the 45th Parliament by the Senate Committee of Privileges and the House of Representatives Committee of Privileges and Members Interests.

Question agreed to.

I ask that it be noted, given the issue at hand, that that was passed, I think, unanimously by the Senate. I thank the Senate.