Stephen Parry (President) Share this | Link to this | Hansard source

As President of the Senate, my role includes watching out for the institutional rights of the Senate and senators. I therefore wish to make a statement on a question of parliamentary privilege that has important ramifications for all senators and their capacity to function in this place.

Senators may be aware that, on 19 May this year and 24 August this year, officers of the Australian Federal Police executed search warrants at the Melbourne office of Senator Conroy, at the home of an opposition staff member and on the Department of Parliamentary Services here at Parliament House, and seized certain material.

In accordance with the AFP guideline for execution of search warrants where parliamentary privilege may be involved, Senator Conroy claimed parliamentary privilege over the seized material, which was delivered into the custody of the Clerk of the Senate, where it remains today in sealed packages in the Clerk's safe. As required by the guideline, Senator Conroy notified the AFP that he was maintaining his claim of parliamentary privilege over the documents.

As the Senate had been dissolved, Senator Conroy wrote to the Clerk in respect of both occasions, asking for her to arrange to have the matter placed before the Senate when it was reconstituted. Senator Conroy also wrote to the Clerk extending his claim of parliamentary privilege over any copies of material seized from his office and the home of a staff member that had been acquired by the AFP in searching other premises.

A background paper on the determination of claims of privilege following the execution of search warrants has been prepared by the Clerk for the information of senators. The paper includes analysis of the important institutional role played by the Privileges Committee in such matters. I table copies of the correspondence from Senator Conroy, the AFP guideline and covering memorandum of understanding, and also the background paper by the Clerk.

It is now for the Senate to consider how to determine the disposition of the documents. As a first step, unless the Senate determines otherwise, I propose to facilitate discussions on a way forward, and I will confer with party leaders and other senators on a suitable time frame for those consultations to occur.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

by leave—I will have more to say other than this short statement during the course of the week, but there are several observations I would like to make at this time. What is at stake here is not simply a question of the Prime Minister's legacy as communications minister, as much as that legacy deserves close scrutiny. This is not about the cut and thrust of politics, political gamesmanship or pointscoring. What this is about is the proper functioning of the parliament and our democratic system. It is, at its core, about the constitutional right of the people of Australia, through their parliament, to hold the executive to account without fear or recrimination.

Parliamentary privilege is fundamental to the Westminster system of democracy. It is an ancient privilege stretching back to at least the reign of Richard II. In 1397 Sir Thomas Haxey presented a petition to the House of Commons which condemned the waste and mismanagement of the royal household. An incensed Richard demanded to know who had presented the petition, and Haxey was given up. The Lords declared him a traitor and condemned him to death. Although Haxey was never executed, he was deprived of his title and all his possessions. In 1399 the new king, Henry IV, annulled the judgement on the grounds that it was contrary to the privileges of the Commons, and he later promised never to pay attention to the unauthorised accounts of parliamentary proceedings again.

Henry IV's acknowledgement that the action against Haxey had been contrary to the traditional liberties of the parliament suggests that the privileged status of parliamentary proceedings was recognised as early as the late 14th century. And it is this privilege that ensures every parliamentarian, on behalf of the Australian people, can scrutinise waste and maladministration. The raids on my office, my staff member's home and the Department of Parliamentary Services are an extraordinary attack on the parliament and its constitutional duty to hold the government of the day to account. As Jonathan Holmes wrote yesterday:

It's hard to imagine a more serious attack on investigative journalism, and on the ability of the media to hold government to account.

There must be no place for politics when it comes to such fundamental democratic principles. It is up to every parliamentarian and every journalist in this place to stand up for the parliament and our democracy, and I have been heartened by the many senators and members from all sides who have approached me to express their concerns about these events.

Finally, on a personal note, I want to acknowledge the distress these events have caused for those involved and for their families, friends and colleagues. In particular, I want to acknowledge Mr Andy Byrne, who has had to endure more than any staff member should for simply doing his job. He was read his rights and was told he was a suspect. It is no exaggeration to say that Mr Byrne has been a model staff member who has worked tirelessly to ensure that the Australian people get the National Broadband Network they deserve. I am honoured to have the privilege of working with Mr Byrne. Thank you.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

by leave—I understand that Senator Wong has given notice that she will move tomorrow that the matters to which Senator Conroy has adverted be referred to the Senate Privileges Committee for inquiry and report. That is the appropriate course of action, and the government will be supporting that motion. It will then be for the Privileges Committee to determine the appropriate course and, in doing so, to determine its own procedure for investigating the nature of the documents, the nature of the claims and the nature of some of the assertions that are being made in relation to this matter.

The issue raises not one but two important principles. As Senator Conroy has rightly said, it raises the matter of the privilege of the Senate. It is not the privilege of individual senators; it is the privilege of the Senate, as Senator Conroy has rightly said. That is an ancient privilege recognised by section 49 of our Constitution, which provides:

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

That was the law of Australia from 1901 until 1987, when this parliament passed the Parliamentary Privilege Act, which currently, as interpreted by the courts and by parliamentary practice, governs the matter. That is, as Senator Conroy has rightly said, a high and important principle integral to the functioning of this parliament. In this case it is set in tension with another high and important principle, and that is the due and proper administration of the criminal justice system by those officers charged with its administration—in this case, officers of the Australian Federal Police. It will be for the Privileges Committee to determine the facts of the case, to determine the appropriate course and to determine what steps, if any, the Senate should now take.

Stephen Parry (President) Share this | Link to this | Hansard source

In light of the information that has been presented by you, Senator Brandis, my offer to facilitate further discussion with the leadership group and other senators will now stay in abeyance. I am to understand that we will expect a motion, or a notice of motion at least, about a reference to the Privileges Committee. So, unless any other senator has any other comment, I think we will just leave it at that until we deliberate on that particular motion.