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Wednesday, 31 August 2016
Page: 250

Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (15:45): I seek leave to make a statement.

The PRESIDENT: Leave has been granted for up to five minutes.

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

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

Opposition senators interjecting

The PRESIDENT: 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.

Senator BRANDIS: 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.