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Wednesday, 9 March 2005
Page: 91

Senator HARRIS (3:49 PM) —I also rise to speak to Senator Faulkner’s motion. The issue of security for documents that a constituent has sent to either a member or a senator for their assistance on those documents is a very crucial part of our democracy. It is very pleasing to see that this memorandum of understanding has actually been achieved between the parties relating specifically to the federal government. Before continuing with my remarks I will raise the issue that we still do not have a similar procedure where a state based police force applies for a warrant. I would recommend that both the Senate and the House of Representatives in the future look at this aspect also. In the memorandum of understanding I think the crucial issue that I have just raised is very well put in the second paragraph of the preamble. It says:

The process is designed to ensure that search warrants are executed without improper interference with the functions of parliament and so its members and their staff are given a proper opportunity to raise claims for parliamentary privilege or public interest immunity in relation to documents or other things that may be on the searched premises.

As a Senator for Queensland, I do not want to give, in any way, shape or form, the impression that a member or a senator ought to be above the law. I do not imply that in any way at all. However, because of the significance and the stature of the positions and the roles that we fulfil, there are certain steps that should be taken into account if it is deemed necessary to execute a warrant on the premises of a member or senator—and that is irrespective of whether it is in their suite here in Parliament House, in their official electorate office or within an authorised privately funded office. Many senators and members have their official offices both here in Parliament House and in their respective state or electorate, and quite a few, like me—generally because of the vastness of the areas they represent—have elected to fund private offices as well. I believe it is important that these documents also cover those authorised privately funded offices.

Item 2 of the AFP guidelines says:

It is also possible that a document held by a member will attract public interest immunity even if it is not covered by parliamentary privilege. The High Court has held that a document which attracts public interest immunity cannot be seized under a search warrant.

The reference is Jacobsen v Rogers (1995) 127 ALR 159. They go on to say:

Public interest immunity can apply to any document if the contents of the document are such that the public interest in keeping the contents secret outweighs the public interest in investigating and prosecuting offences against the criminal law. Amongst other things, public interest may apply to documents if disclosure would damage national security, defence, international relations or relations with the states or if a document contains details, deliberations or decisions of the cabinet or executive council, or if disclosure would prejudice the proper function of the government of the Commonwealth or a state.

I place on record an additional issue: confidentiality between a constituent and their elected representative. If a person cannot have absolute assurance that any document they give to their member or a senator from their state cannot be taken by another person, irrespective of whether it is under the power of a warrant or without a warrant, then that will seriously undermine the confidence of that constituent. It would also seriously undermine the ability of each and every senator in this place and every member in the House of Representatives to represent their constituents.

I welcome the tabling of these documents and their formally being brought into effect. I reiterate the importance of the Senate and the House of Representatives taking a similar action in the future in relation to a warrant that may have been acquired by a state based police office. Parliamentary protection and the confidentiality between members and their constituents must be protected in those cases as well.

Question agreed to.