Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I present the 163rd report of the Senate Standing Committee of Privileges, which is a preliminary report on the committee's inquiry into the status of documents seized under search warrant.

Ordered that the report be printed.

I move:

That the Senate adopt the recommendation at paragraph 1.41 of the report.

The committee makes this preliminary report to the Senate on the disposition of documents seized under search warrants. While the Australian Federal Police can seek to execute search warrants in the premises of members or where privileges may be involved, they are required to follow the national guideline which allows members to make claims of parliamentary privilege where they consider materials seized under warrant. Senators will be aware that former Senator Conroy made a claim of privilege over documents seized in the execution of search warrants at his Melbourne office and at the residence of one of his staff members in May this year and in the execution of a third warrant at Parliament House in August.

The member for Blaxland, the Hon. Jason Clare, also made a claim of privilege in the House of Representatives over material seized at Parliament House. The House of Representatives today adopted a motion upholding Mr Clare's claim, resolving that documents be returned to him and withheld from the Australian Federal Police investigation. The House privileges committee report on the matter, which was tabled on Monday, relies on a presumption that the documents connected to a member's portfolio responsibilities are likely to be proceedings in parliament and, accordingly, protected by privilege. Absent any evidence to disturb that presumption, it appears the House committee and the House itself readily accepted and upheld the claim of privilege.

For reasons outlined in the report that I have just tabled, the Senate committee has chosen to take a different approach. The committee has started gathering information about the privilege claim and considers it appropriate to properly consider that information. The committee also has before it a contempt inquiry arising from the execution of the warrants, which will be better informed by further consideration of this matter. The underlying facts of the contempt inquiry also raised concerns that the guideline does not sufficiently protect members' information.

In this vein, this week the committee received a new reference about the adequacy of parliamentary privilege as a protection for parliamentary material against the use of intrusive powers by law enforcement and intelligence agencies. Again, further consideration of the current matter will better inform the inquiry.

Finally, and of particular concern to the committee, evidence provided by the Australian Federal Police as background to its inquiry indicates that the Australian Federal Police investigation of the matter initially involved pre-warrant inquiries to departments and private entities about members' offices and their staff. The evidence to the committee indicated that there are no particular protocols applying in relation to making and responding to such inquiries, so the sorts of protections required in the execution of search warrants may be entirely absent here. Again, these matters will be investigated as part of the matter referred this week.

The motion I have moved would provide the committee with access to the documents currently in the custody of the Clerk and enable the committee to take the next steps in the inquiry which are set out in the report. I commend the report and the motion to the Senate.

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

I would like to speak briefly to the motion moved by Senator Collins. This report deals with a matter that goes to the very heart of Australian democracy, which is parliamentary privilege. As Senator Collins said, an analogous report in relation to Mr Clare's claim for parliamentary privilege was published yesterday, I think, or maybe earlier this week.

An honourable senator: Monday.

Monday, thank you. That is how quickly the week has gone! I want to make some remarks on this matter. I look forward to reading the report, but I will take the opportunity to make some remarks about parliamentary privilege first because I think it is extremely important that we again reassert the importance of and the centrality of the principle of parliamentary privilege.

As you know, Madam Deputy President, 'parliamentary privilege' refers to the special legal rights which apply to the houses of parliament, its committees and members. The principal legislative basis in Australia is the Parliamentary Privileges Act 1987, which was enacted following a number of privilege issues raised during the 1980s. The power to legislate stems from the Constitution at section 49. However, the powers incorporated into Australian law have their origins in the 1688 Bill of Rights. Parliamentary privilege has a history dating over 300 years and came as a fundamental response to the grievances of Westminster against the Crown.

Fundamentally, parliamentary privilege is designed to protect the rights of the legislature from incursion by the executive and by the judiciary. It ensures that all of us enjoy a right to freedom of speech in the debates and proceedings in parliament that ought not to be impeached or questioned in any court or place out of the parliament. It is a fundamental right that ensures that all of us can raise issues in this place and hold the government to account without fear of reprisal, without fear of arrest and without fear of prosecution. It is a right that has been jealously guarded for a very long time, and rightly so, by all members and senators—indeed, by all members of parliaments in the Westminster tradition. Without this right, this parliament would be a facade of democracy, and it is for this reason that this Senate has always carefully guarded its privileges.

Odgers' Australian Senate Practice provides a comprehensive outline of the history and implementation of parliamentary privilege. There is also a chapter in House of Representatives Practice. The Senate has also a number of privilege resolutions designed to assist with the handling of matters of privilege.

Senator Collins in her speech spoke about the protocol which exists to help govern the interaction between police action and parliamentary privilege. I note her comments in her contribution which suggest that it may be timely to consider whether or not the protocol deals with the full extent of the matters it ought to, given the circumstances of the matters that her committee has been considering. It was a protocol developed to ensure that privilege is not compromised in circumstances such as those that are the subject of both the House report and the Senate report. Protections under the protocol were of course utilised by members of parliament in order to protect their privileges.

I do want to say this. The circumstances which gave rise to both the House and the Senate committees' inquiries were extraordinary. Televised raids on the offices and homes of a Labor shadow minister, a former Deputy Leader of the Opposition and an opposition staffer in the middle of the election campaign were not a sight I think any of us ever expected to see. It was not just a raid on the opposition party in the context of an election campaign, which was hotly contested. I would also assert that it was a direct result of a Prime Minister who sought to go after those who sought to embarrass him, to cover up his failings.

The government insists that there was no political aspect to these raids, that it was the police doing their job. We fully accept that it was the police doing their job. We make no suggestion of political partisanship by the Federal Police. They were doing their job as a direct result of a request from the government to investigate material about the NBN which had exposed many of the things being said by the Prime Minister about the NBN as not being accurate.

The problem we have is that there was no similar request resulting in a televised public raid when vital national security information was leaked. There was no similar request resulting in televised public raids when major security breaches embarrassed former members of this government about the handling of submarine construction. There was no similar request resulting in televised public raids when journalists received highly confidential cabinet documents in the effort to embarrass the Australian Labor Party about policy costings. And yet, in the middle of an election campaign, we saw, as a result of the government's actions, the unprecedented spectacle of the raids on offices of Labor parliamentarians. It does raise the question that Labor raised previously about consistency. Why is it that the government is happy to call in the police in some circumstances but not others?

I am happy to speak at length on another occasion about some of the matters that the Prime Minister was extremely embarrassed about. They include the fact that the NBN, we now know, will cost far more than Australians were told before the election. Mr Turnbull promised that the maximum funding of the second-rate NBN would be $29.5 billion. That cost has nearly doubled. It has blown out to $54 billion. He promised Australians world-class faster broadband, yet Australia's internet speeds have actually fallen from 30th to 60th globally, I believe. So it is understandable that the Prime Minister was extraordinarily sensitive about having his failings exposed. But instead of being shamed into action and instead of fixing those problems, the government was intent on targeting those who were disclosing those failings.

Parliamentary privilege is, as I said, an extremely important principle—one that has been an aspect of our Westminster democratic tradition for some three centuries. I am pleased that this matter is being appropriately handled by the Privileges Committee. I look forward to their continued sensible conduct of this matter.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

As deputy chair of the Privileges Committee, I want to just indicate support for Senator Collins's statement. I make no reference to the contribution that the Leader of the Opposition in the Senate just made. She cannot help herself in trying to score political points out of everything.

This is a committee that works very well in the interests of the parliament and the Senate. I congratulate Senator Collins—as I have done privately to her and in the committee meetings—on the way she chairs this committee in quite an exemplary way. There is no politics in this committee. It is disappointing that the Leader of the Opposition in the Senate comes in and tried to make political points in talking about this otherwise very sensible, very appropriate and very tripartisan report of the committee.

This report relates to a very serious matter. It relates to matters not just of this parliament but of future parliaments. Under Senator Collins's leadership, we are trying to assess some other aspects of the whole issue, which may be useful in the future. The report deals very fairly with the discussions of the committee, which, as I say, have been very extensive discussions. We have had a lot of very good advice from the clerk assisting us, Mr Pye, who I guess will not be with us anymore after his elevation. Is that right? That is probably a shame. Also, we have had very good sound advice, as always, from the Clerk of the Senate on matters we should look at.

Some of what Senator Wong said in her contribution on background is very relevant, and it is about senators and members being able to do their duty without fear or favour. But there are other questions involved. Should parliamentarians be dealing with stolen documents? I am not for a moment suggesting that in this case the documents were stolen, but clearly that is an issue we have to look at. It is also a very interesting case, and I think Senator Collins may have mentioned this: where the same sort of set of circumstances arises in both the House of Representatives and the Senate what is the conflict of powers between the Senate and the House of Representatives? That is something that the Clerk has given only a little thought to at this stage but which she will have to give some more thought to. I do recall the Clerk's advice. They are issues which do need to be addressed. Some of the issues involved happened in this building, but some others involving a member of the Senate happened in an electorate office outside of this building, in another town. So they are all interesting questions, and the further inquiry that the Senate has agreed to do, on the suggestion of the chairman and the committee, will look at some of these issues.

I am pleased that the committee has decided at this stage not to follow the report or the conclusions of the House of Representatives committee, which I might add just as an aside, apropos of absolutely nothing, is a committee with a government majority in the House of Representatives. I only mention that to say that these are issues which are beyond the political realm; they are issues that really are for the good of parliament and of the people who serve in the parliament, to ensure that they can serve without any restrictions.

But there are some issues that I mentioned to do with stolen documents. Again, I am not suggesting that these are stolen; that is not our role. They are issues that have to be looked at. There are also a couple of other quite technical issues. Again, my purpose in speaking today is to indicate that the coalition members on the committee also support the comments made by Senator Collins and, of course, this report, to which we are all signatories.

Question agreed to.