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Wednesday, 28 March 2018
Page: 2444

Senator JACINTA COLLINS (VictoriaActing Manager of Opposition Business in the Senate) (16:26): I present the 168th report of the Standing Committee of Privileges entitled Parliamentary privilege and the use of intrusive powers, and I move:

That the report be adopted.

The Privileges Committee has reported on the inquiry referred to it on 28 November 2016 into the intersection between parliamentary privilege and the use of intrusive powers by law enforcement and intelligence agencies. At the time the committee received this reference, it was conducting another inquiry into claims of parliamentary privilege over documents seized from a senator's office and the home of a staff member. The committee was also examining a possible contempt which had arisen in the execution of a search warrant. These are—and indeed were—very important matters and subject of a previous report of the committee.

During this inquiry, the committee considered the powers that allow access to telecommunications data or metadata as well as other intrusive powers which enable agencies to, for example, enter and search premises and seize evidential material with a search warrant, intercept live communications and conduct other electronic surveillance, and access stored and other communications and data. The committee also examined the oversight mechanisms established to ensure that such powers are exercised properly and whether the agencies using those powers are maintaining records in accordance with the law. Key questions included: what, if any, recognition is given to the work of parliamentarians, and whether claims of parliamentary privilege could be made, and, if so, how they could be resolved?

Disturbingly, the evidence revealed no consideration of how questions of parliamentary privilege may be dealt with when intrusive powers are used, whether covert or not. In fact, the case presented was that the covert nature of intrusive powers meant that questions of parliamentary privilege were not considered to be relevant. The thinking seems to be that what is not seen or heard cannot possibly give rise to an improper interference with the work of the parliament and, therefore, a possible contempt. The Privileges Committee is concerned that this stems from the view that parliamentary privilege is limited simply to the 'use' immunity, which guarantees that the testimony of a witness will not be used against them as evidence in a court, rather than the clearly established systems of powers and immunities that the Commonwealth parliament inherited from the House of Commons in 1901.

Law enforcement and intelligence agencies shared with the committee the importance of intrusive powers to their investigatory work and the need to preserve the flexibility and efficacy of their investigations. The committee acknowledged that.

There was also the suggestion that parliamentarians not be considered either above the law or immunised from the attention of foreign powers. The committee notes that the inquiry was not a reference to expand the powers and immunities of the parliament, which are jointly referred to as parliamentary privilege, but the committee did consider the purpose of parliamentary privilege, which is to enable the parliament to effectively carry out its functions. In the words of Odgers' Australian Senate Practice:

The primary functions of the Senate are to inquire, to debate and to legislate, and any analysis of parliamentary privilege must be related to the way in which it assists and protects those functions.

While the Australian Federal Police expressed some scepticism regarding the potential for its exercise of intrusive powers to have a chilling effect on the work of the parliament, the President of the New South Wales Legislative Council submitted that there was good cause to believe that any such covert powers had the potential to curtail the free and ready flow of information to members and the issues of privilege that may arise. The Australian Federal Police also argued that its use of covert intrusive powers is subject to robust oversight and accountability mechanisms, including external scrutiny by the Commonwealth Ombudsman, but the Ombudsman advised that it does not consider the implications of parliamentary privilege in performing its statutory compliance audits of law enforcement agencies.

The committee concluded that the lawful use of intrusive powers can have a chilling effect on the work of this parliament. Parliamentary privilege does not diminish because of the mechanism used to access material. How material related to the work of a parliamentarian is accessed should not determine whether parliamentary privilege exists. It is clear to the committee that this view is not held by those involved in using intrusive powers, whether covertly or otherwise, and so the Privileges Committee, therefore, examined possible remedies to this problem.

The committee sought a clear process for claims of parliamentary privilege to be made and assessed when such powers are used while at the same time allowing the investigation of serious criminal and intelligence matters to continue unimpeded. The committee examined the existing 2005 memorandum of understanding between the executive and the parliament, and the national guideline it underpins. These documents set out the processes to be followed by the Australian Federal Police when it seeks to execute a search warrant on premises occupied or used by a parliamentarian, including the Parliament House office, electorate office and residence.

The committee concluded that the memorandum of understanding provides a useful template and recommends that the Presiding Officers, in consultation with the executive, develop extra protocols that will set out agreed processes to be followed by law enforcement and intelligence agencies when exercising intrusive and other investigative powers. The effect of the motion I have moved today is for the Senate to adopt the committee's recommendations.

The committee's consideration of the memorandum of understanding also proved useful on another level, as it explored the issue of third-party assistance in the execution of search warrants. This was one amongst many new developments in this space. The Australian Federal Police gave evidence that the recent experience where a third party assisted in the execution of a search warrant, and the possible improper interference that occurred, was because the national guideline had not envisaged that such assistance might occur. The Australian Federal Police supported updating the national guideline to address the use of constables or third parties assisting in the execution of search warrants. The committee agrees and suggests that, until the necessary consultations to amend the national guideline can occur, the matter be dealt with administratively. If no other senator wishes to speak at this time, I seek leave to continue my remarks later.

Leave granted; debate adjourned.