Deborah O'Neill (NSW, Australian Labor Party) Share this | Hansard source

by leave—I wish to make some brief comments, as the Chair of the Senate Standing Committee of Privileges, which I have agreed with Senator Abetz, the deputy chair of the committee. I note with thanks the President's statement about the electronic access control system today and I applaud his work with senators of the Senate Standing Committee on Procedure to settle this contentious matter. This new technology will necessarily disrupt and displace older ways of ensuring the security and safety of the people who work in this place in service of the Australian people, our practices and the information we hold.

You will no doubt, Mr President, recall the interest of the committee of privileges in the EACS, security systems, practices and new digital modes of working, including their management and oversight. Our particular interest is driven by our determination to ensure parliamentary privilege is protected in ways that adapt to the realities of these digital days. The committee has taken a close and active interest in negotiations to update the memorandum of understanding on the execution of search warrants in the premises of members of parliament, and the associated AFP national guideline for the execution of search warrants where parliamentary privilege might be involved.

In the 45th Parliament, the committee considered two matters relating to the disposition of material over which a claim of privilege had been made. In both matters, the material had been seized under search warrants executed by the AFP. The first matter related to the NBN Co papers and the second related to a claim of privilege made by Senator Pratt. In both matters, the committee concluded that the claim of privilege should be upheld, and recommended to the Senate that the seized materials be withheld from the AFP investigation. The Senate adopted those recommendations.

In the wake of these matters in 2018, the Senate called on the Attorney-General as a matter of urgency to work with the presiding officers to develop a new protocol for the execution of search warrants and the use by executive agencies of other intrusive powers. The Senate noted the new protocol should comply with the principles and address the shortcomings identified in reports tabled in the 45th Parliament by the Senate Standing Committee of Privileges and the House of Representatives Standing Committee of Privileges and Members' Interests.

Compliance with the MOU and the associated AFP national guideline is intended to ensure the exercise of investigative powers does not improperly interfere with the parliament, parliamentary committees or parliamentarians freely performing their functions. However, it is clear from the committee's work over recent years that there is confusion about the scope of parliamentary privilege. In particular, there appears to be limited awareness that the powers to punish contempt may be invoked where the exercise of an investigative power amounts to an improper interference with the functions of the parliament. More practically, the MOU and the guideline focus on the execution of search warrants on physical premises occupied or used by a member of the parliament. Increasingly, the investigative powers of law enforcement officers, which have the potential to intrude on parliamentary privilege, include powers to access telecommunications data and other electronic data relating to parliamentarians or their staff.

In June, the committee agreed to draft guiding principles to facilitate the renegotiation of the MOU and the guideline, and provided these to the President and other senators. The changes proposed by the committee are aimed at updating the MOU and the guidelines so they continue to fulfil their purpose of protecting the ability of the houses and their members and committees to exercise their authority and perform their duties without undue external influence. However, the committee is also conscious that the MOU and the guidelines must recognise the legitimate interests of law enforcement against illegal activity. These protocols must not inadvertently provide a shield to illegal activity.

I note that work is underway. This progress is encouraging, but this is a matter that the Senate first called for action on in 2018. I hoped that the revised protocols, which ensure that the exercise of investigative powers does not improperly interfere with the parliament freely performing its functions, can be quickly concluded. Indeed, I might even put it on my Christmas list, Mr President!