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

I present the 164th report of the Committee of Privileges, titled Search warrants and the Senate.

Ordered that the report be printed.

I move:

That the Senate adopt the recommendations at paragraphs 2.24 and 3.47 of the report.

There is uncertainty at law about the extent to which parliamentary material may be protected from seizure under search warrant. In the Commonwealth jurisdiction, the matter is currently governed by a settlement between the parliament and the executive: a national guideline for the execution of search warrants where parliamentary privilege may be involved.

As senators would be aware, this guideline has been tested for the first time in the investigation of a suspected leak from NBN Co, involving the execution of search warrants at former Senator Conroy's Melbourne office, at the home of one of his staff, and at Parliament House, Canberra. The background is set out in the committee's 163rd report, which I tabled on 1 December last year.

The committee now reports on two inquiries arising from this matter. The first concerns the status of the seized documents.

Under the guideline, former Senator Conroy made a claim of parliamentary privilege over the seized material. The committee's task is to recommend to the Senate whether that claim should be upheld.

The committee examined the documents to determine whether they came within the definition of proceedings in parliament. This is the test for the scope of privilege in legal proceedings, which turns on the connection of the material to parliamentary business. Generally, proceedings in parliament may not be questioned in legal proceedings, and the national guideline imports similar protections in relation to the execution of search warrants.

On the evidence before the committee, the committee considers that the documents satisfy the definition of proceedings in parliament and warrant protection on the basis of their connection to parliamentary business.

The committee also considered how well the stated purposes of the guidelines were met in the execution of these warrants.

The guideline is intended to enable claims of privilege to be made and determined, with seized material sealed away with a third party until the question is resolved. Any practice which, in the meantime, allows the use of such material undermines that purpose. This is the context in which the committee examined the second matter referred, the question whether any contempt may have occurred in the execution of the warrants.

There were two allegations raised by former Senator Conroy.

One involved photographs of the covers of various documents being permitted to be sent off site to NBN officers. The committee has found that, ultimately, this conduct did not amount to an improper interference, because appropriate restrictions were applied to their use and agreed arrangements were ultimately made for their disposal.

The second allegation was more concerning. Senator Conroy alleged that information which was subject to a privilege claim may have been used against NBN employees who were alleged to have provided information to him. NBN Co conceded that disciplinary action was, in fact, taken against two employees, but submitted that it occurred independently of the AFP investigation and was taken solely through its own internal investigation and that 'the breaches relied upon did not include any communications with parliamentarians, their office or their staff'.

The committee notes, however, that information discovered at the site of one of the warrants may have assisted in identifying one of those employees for the investigation, although there is conjecture as to the extent to which that material may have been used. Any such use demonstrates the risk that information which ought to be quarantined may be used for purposes which are not authorised by the warrant and are inconsistent with the purposes of the guideline.

As explained in chapter 3 of the report, the committee considers that the execution of the Melbourne warrants may have had the effect of interfering with the duties of a senator, and with the functions of the parliament more broadly, by undermining the operation of these national guidelines and diminishing the protection that should be available to parliamentary material. The committee also notes that information which ought to have been protected may have been used to the detriment of a person with a connection to parliamentary proceedings.

On that basis, the committee considers that an improper interference has occurred on this occasion. The threshold for a finding of contempt is a high one, however, requiring cogent evidence of an improper act or motive. The committee notes in its report various mitigating factors and—rather than recommend that a contempt be found—suggests that an alternative remedy lies in the resolution of the privilege claims that I mentioned earlier.

As I have noted, the committee recommends that the claim of privilege over the documents be upheld, because of their demonstrated connection to parliamentary business. In finding that an improper interference has occurred, the committee has also concluded that the seized material also warrants protection on those grounds.

One of the effects of the recommendation that the claim of privilege be upheld is that the subject material would be withheld from the investigation and, therefore, incapable of being used in any prosecution or any other legal proceedings, thereby limiting the detriment to any persons involved. The committee considers this to be an acceptable outcome, given the difficulty of further establishing the facts of this matter.

The motion I have moved would adopt the committee's recommendation that the claim of privilege be upheld and that the seized documents be returned to Senator Conroy.

It would also adopt the committee's conclusion that an improper interference occurred, as discussed in chapter 3, and its recommendation that the Senate refrain from making a finding of contempt, noting that the subject documents will be withheld from investigation.

Finally, the committee asks the Senate to note the requirement for remedial action in relation to the national guideline for the execution of search warrants where parliamentary privilege may be involved, which the committee will address in the inquiry into intrusive powers.

If no other senator wishes to speak at this time, I seek leave to continue my remarks later.

Leave granted; debate adjourned.