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

I move:

That the following matter be referred to the Standing Committee of Privileges for inquiry and report:

The disposition of the material over which a claim of privilege has been made by Senator the Honourable Stephen Conroy, namely:

(a) the material delivered to the Clerk of the Senate on 20 May 2016 by Australian Federal Police (AFP) following the execution of search warrants on 19-20 May 2016 at the office of Senator Conroy at Treasury Place, Melbourne, and at the Brunswick home of an Opposition staff member;

(b) the material delivered to the Clerk of the Senate on 24 August 2016 by the AFP following the execution of search warrants on that day at the premises of the Department of Parliamentary Services, Parliament House, Canberra; and

(c) the material referred to in a letter from Senator Conroy to the Clerk of the Senate, dated 12 August 2016, being copies of material seized from his office and the home of a staff member on 19-20 May 2016 that had been acquired by the AFP in searching any other premises.

(2) In carrying out its inquiry, the committee shall have regard to the law of parliamentary privilege with reference to the Parliamentary Privileges Act 1987 and relevant court judgments relating to the interpretation and application of the Act.

(3) The committee shall be provided by the AFP with a list and a description of the seized material but the list and description to be provided by the AFP must not contain any information that could identify any person subject to investigation by the AFP in connection with the execution of the search warrants referred to in paragraph (1).

(4) The committee shall provide to affected parties the opportunity to make submissions on the claim of parliamentary privilege and may seek submissions on the application of the law of parliamentary privilege.

(5) If the committee is able to determine the matter without examining the material, it shall report accordingly to the Senate, making recommendations for the disposition of the material.

(6) If the committee is unable to determine the matter without an examination of the material, it may, with the further approval of the Senate, appoint an appropriate person to examine the material and report to it on the claim of parliamentary privilege. The committee shall then report to the Senate.

(7) Unless the Senate approves the appointment of a person to examine the material, it shall remain in the custody of the Clerk of the Senate at all times until its disposition is determined by the Senate, and shall not be examined by the committee.

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

I seek leave to make a statement.

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

Leave has been granted for up to five minutes.

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

Mr President, I seek leave to speak for up to 10 minutes.

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

Leave has been requested to speak for 10 minutes. Is leave granted?

Opposition senators interjecting—

I am hearing senators saying five minutes. Any single senator can determine this. I am hearing five minutes from the other end of the chamber and I am hearing up to 10. I do not want to turn this into an auction. Is leave granted for Senator Brandis to speak for five minutes? I need a no if anyone objects. Leave is granted for five minutes, Senator Brandis.

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

The government has had discussions with the opposition in relation to this motion. As I foreshadowed yesterday, the government will not be opposing the motion, but I do want to place on the record a serious misgiving we have about the manner in which the motion has been structured. I am told by Senator Wong that it has been prepared on the Clerk's advice. If it has been prepared on the Clerk's advice then I think that advice is poor advice with respect to the clerks.

My particular concern relates to paragraphs (5) and (6) of the motion, which provide for a mechanism whereby the documents that are the subject of this privilege claim may be inspected by a third party, an independent expert, only if the matter is brought back to the chamber by the Privileges Committee and the chamber resolves to appoint an independent assessor. That has not been the practice in the past. The most recent practice, the case of former Senator Winston Crane, was where a reference to the Privileges Committee was made and an independent assessor, Mr Stephen Skehill, was appointed by the motion that referred the matter to the Privileges Committee. That is what should have happened on this occasion.

It seems almost impossible that the Privileges Committee can competently perform the task referred to it without the inspection of the content of the documents, because what we are here concerned with is an investigation into a suspected crime. The search warrant concerned could not have been validly issued unless there was a reasonable suspicion that a crime had been committed. It is not for the Privileges Committee to determine whether or not a crime was committed. It is for the Privileges Committee to determine whether or not the documents concerned relate with sufficient directness to the proceedings of parliament that parliamentary privilege in this case can properly be invoked, because if they do not bear a sufficiently direct relationship to the privilege of parliament then they are not covered by the Parliamentary Privileges Act or, indeed, by section 49 of the Constitution.

The matter has been considered by a number of decisions of courts: in Australia, by a decision of the Court of Appeal in Queensland about 20 years ago called Rowley v O'Chee; and in the United Kingdom some six years ago by a decision of the Supreme Court of the United Kingdom called the Crown v Chaytor. Chaytor's case seems to be the most recent occasion on which a superior court has considered the question. The Supreme Court decided in that case that if a claim of parliamentary privilege is made but the documents do not sufficiently bear upon the proceedings of parliament then the claim is invalid. How, I ask, can the Privileges Committee possibly determine the validity of a claim of parliamentary privilege where the question before it is whether the documents seized contain material relating sufficiently directly to proceedings in parliament without looking at the documents? It is not possible that the Privileges Committee could rationally arrive at that conclusion on the basis merely of a description of the character of the documents. The very issue presented to it depends upon its analysis of the content of the documents to determine whether parliamentary privilege has been sufficiently or validly invoked.

The precedent of a third-party assessor, an experienced silk, has been adopted by this Senate before. It has been somewhat departed from, although anticipated as a contingency by this motion. The observation I make, not in a opposition to the motion but to express concern about the way in which the motion has been structured, is that this provides an additional and unnecessary complication in what could have been, and ought to have been, a relatively straightforward reference.

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

I seek leave to make a statement of no more than three minutes.

Leave granted.

In the Leader of the Government in the Senate's contribution a number of matters with which we do not agree were asserted. I simply say to the Senate this: the approach that the opposition is taking is being taken on the advice of the Clerk and officers. We believe it is appropriate, particularly in a matter as sensitive as the privileges matter which we are discussing, that that be undertaken. So we stand by the text of the motion as drafted, upon which we received advice. We ask for your support.

Question agreed to.