Slade Brockman (President) Share this | Link to this | Hansard source

I wish to update the chamber on the AFP MOU and national guidelines. The Speaker, the Attorney-General, the Minister for Home Affairs and I have signed a new memorandum of understanding regarding investigations where parliamentary privilege may be involved. The Australian Federal Police will also issue a new national guideline which updates the procedures that the AFP will follow for the collection and quarantining of material that could be subject to parliamentary privilege. The MOU and guideline are designed to ensure that law enforcement investigations are conducted without improperly interfering with the functioning of parliament, its committees and its members. They also ensure that parliamentarians and their staff are given a proper opportunity to raise claims of parliamentary privilege in relation to material that is obtained through the execution of a warrant.

The new MOU and guideline replace the 2005 settlement of these issues and include some significant improvements, particularly related to: overall improved oversight of investigations which may intersect with parliamentary privilege; clarifying the application of the guideline to electronic information, particularly where this is held by third parties; and reporting to the committee of privileges on the use of covert powers in relation to parliamentarians and their staff. These changes address shortcomings in the 2005 protocols which were identified in reports of the privileges committees in both houses tabled during the 45th Parliament. They also respond to the Senate resolution of December 2018 which called on the Attorney-General to work with the Presiding Officers to develop a new protocol for the execution of search warrants and the use of other intrusive powers by executive agencies.

It was initially hoped new procedures would also be agreed in relation to the exercise of covert powers. However, more work is required to ensure these procedures address the concerns of parliamentarians, particularly in relation to access and use of telecommunications data and the quarantining of material collected covertly. In addition, there are practical issues which the AFP must address to ensure that the agreed procedures do not unduly hamper investigations. Further negotiations regarding the implementation of procedures that ensure covert powers are exercised in a manner which does not intrude on parliamentary privilege will be conducted in the next parliament.

I acknowledge the work of the Speaker, Minister Andrews, the Attorney-General and, particularly, Senators Abetz and McAllister and members of the Committee of Privileges, including the chair of the Privileges Committee, Senator O'Neill. In particular, I pay attribute to former President Ryan for his clarity of thought and perseverance in this matter. He would have very much liked to have had this concluded before his departure. Unfortunately, that wasn't the case, but I know that he is pleased that it has been concluded now. I table a copy of the MOU and the national guideline.

Simon Birmingham (SA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source

I seek leave to make a short statement.

Slade Brockman (President) Share this | Link to this | Hansard source

Leave is granted for two minutes.

Simon Birmingham (SA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source

I wish to make a short statement to acknowledge the tabling of the memorandum of understanding which you have just undertaken and the statement that you have just made, Mr President, in relation to the memorandum of understanding on the execution of search warrants in relation to a member of parliament. I acknowledge in particular the extensive work that has been undertaken in relation to this matter. I acknowledge that it is work that has transcended Presiding Officers, relevant ministers and a number of officials and others involved in the process. Therefore, I extend that acknowledgement to all those who have engaged in this process in good faith while seeking to resolve what are, at times, challenging issues of principle in relation to the protection of privilege, but also ensuring that in no way is the proper engagement of our law enforcement officials impeded unnecessarily in relation to the upholding of the laws of the land.

I particularly acknowledge the work that the Privileges Committee has undertaken in helping to inform and advise Presiding Officers and all parties to this work. I trust that the safeguards that have been built into the memorandum of understanding, including in relation to the reporting arrangements that exist, will help to provide all parliamentarians with the confidence that they can conduct their duties in the manner in which all parliamentarians should be free to, in accordance with the historic conventions and traditions that have enabled robust assessment analysis by parliamentarians of issues and the prosecution of those issues with the necessary freedoms and protections to do so. Also these measures should give confidence to all Australians that, whilst our parliamentary democracy is protected, so too will appropriate action be available in relation to legal matters and, as always, no Australian sits completely above the law in our nation.

Mr President, I thank you for the statement you've made to the Senate, for the details that you have outlined to the Senate and for bringing this matter here. I again acknowledge the cross-party and especially bipartisan way in which these matters have been tackled.

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