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

by leave—These are fundamentally important documents that have been tabled today. They go to the heart of the relationship between parliament and the executive. I note that they replace an MOU and guideline agreed to in 2005. Since that time, especially in the last five years, the Senate has dealt with multiple incursions into the privileges of its committees and of senators, which have been the subject of a number of reports by the Standing Committee of Privileges. In particular, during the 2016 election campaign the Turnbull government launched a raid on the offices of the then Deputy Leader of the Opposition in the Senate, Senator Conroy, and the private home of a member of his staff. This extraordinary action came about because Senator Conroy had information about the National Broadband Network that was politically embarrassing for the government of the day.

The Privileges Committee recommended, and the Senate adopted without dissent, not only a finding that the claim of privilege by Senator Conroy be upheld but also that the documents be withheld from the Australian Federal Police investigation and returned to Senator Conroy. This was a political action in the middle of an election campaign that was conducted with disregard of parliamentary privilege, as was evidenced by the further finding of the Privileges Committee in its 164th report that improper interference occurred with the functions of the parliament and the free performance by Senator Conroy of his duties as a senator. The necessity of a robust memorandum and guideline is demonstrated by these events.

In December 2018 the Senate first agreed to a motion calling for the development of a new protocol for the execution of search warrants and the use by executive agencies of other intrusive powers complying with the principles and addressing the shortcomings identified in the reports tabled by the bipartisan Privileges Committee. The intent of these documents is to ensure that parliament and parliamentarians are not subject to improper interference in the performance of their duties. They are intended to facilitate investigations in a way that does not amount to a contempt of parliament and that provides parliamentarians with a measure of confidence that parliamentary privilege is being respected and that parliamentarians will have an opportunity to make claim that material is protected by privilege. While the MOU and guideline are intended to operate as a safeguard against the possibility of contempt, by providing for the rights of members of parliament to be protected, it is important to note that their existence alone cannot preclude the possibility of contempt being committed. It is a reminder to the executive that parliamentary privilege is not a convention or a courtesy; it is the law.

Mr President, I agree with you that these documents represent significant progress. I also agree with you that there is unfinished business. As the President has said, it was not possible to conclude negotiations on the operation of the memorandum and guideline with respect to the exercise of covert powers. I note that the agreement explicitly refers to further negotiation in relation to these powers in the next parliament. Regardless of who forms government after the next election, this agreement must be honoured. I urge those senators across the chamber, including those opposite, to really turn their minds to the importance of making sure that privilege is respected in terms of the interactions between the executive and the parliament. It cannot be another 16 years before these documents are further reviewed and updated.

I place on record my personal thanks to Senator McAllister for her leadership and work on behalf of the opposition in negotiations on these matters. Renegotiation is something that we have been seeking for some years. I also place on record my thanks to former President Ryan for his extensive work in finalising these documents.