Carol Brown (Tasmania, Australian Labor Party) Share this | Hansard source

I present the 189th report of the Privileges Committee, regarding the handling of documents and communications by the Department of Parliamentary Services, together with accompanying documents. I move:

That the Senate take note of the report.

This inquiry related to searches of data held on the parliamentary computer network. The searches were undertaken to support an independent investigation by Dr Fiona Roughley into an incentive-to-retire payment made to a former deputy secretary of DPS. Three data searches were undertaken in support of the Roughley investigation: two by DPS officers and a third by a contractor, TransPerfect Legal. TransPerfect had been engaged by the law firm which was acting for DPS.

The extracted data of eight DPS staff from the parliamentary network consisted of emails and Microsoft 365 logs from a 10-month period in 2023. This data was then filtered against search criteria designed to target information relevant to the investigation. Before the search results were provided to Dr Roughley, the metadata of that material was examined by the law firm for data connected to parliamentarians, their staff or the operations of parliament. The evidence of the law firm to the committee was that no material of that nature was identified.

At its heart, this inquiry related to the issue of how to protect the privileges of the parliament while ensuring that appropriate action can be taken to investigate allegations of illegal activity or maladministration.

As detailed in our report, it was not necessary or appropriate for the committee to form a concluded view on whether misconduct of any kind occurred in relation to the incentive-to-retire payment. The committee accepts that matters have been raised with the current secretary of DPS which she was bound to address and which she ultimately considered met the statutory threshold for referral to the National Anti-Corruption Commission. The committee accepts the evidence provided by DPS that it believes that no data related to parliamentarians or their staff was examined by the law firm or provided to Dr Roughley. However, this does not eliminate the possibility that the bulk data which was filtered using the TransPerfect search software included such material. The committee is concerned with the provision of such material to a third party. We are particularly concerned by the decision to do so not under the compulsion of a legal requirement to produce that information but in circumstances where DPS was determining how to proceed with an administrative investigation.

It is important to recognise that not all information of parliamentarians is connected to parliamentary proceedings. There is much material on parliamentary systems which is not therefore protected by parliamentary privilege. However, as parliamentarians, we have a legitimate expectation that information held on the Parliamentary Computing Network on our behalf will be held confidentially. The committee accepts that the Roughley inquiry related to matters which had no intersection with parliamentary proceedings. The matters under investigation related solely to an administrative decision by the former secretary of DPS. Furthermore, the roles of the DPS officers concerned did not involve providing advice or research to members and senators to support them performing their parliamentary functions. There was, therefore, limited risk that the electronic records filtered by TransPerfect would contain any records subject to parliamentary privilege.

Nevertheless, the committee welcomes the DPS secretary's acknowledgement that it would have been better for her to seek the advice of the clerks to ensure the investigation did not improperly interfere with parliamentary proceedings. The clerks are the acknowledged experts on parliamentary privilege. Seeking their guidance on any implications of investigative action is an important element in ensuring the parliament that appropriate regard has been given to privilege. The importance of seeking this advice is illustrated by the narrow interpretation of 'parliamentary privilege' which persists in the evidence provided by DPS and the Attorney-General's Department. Both departments gave evidence which asserted that the immunity of proceedings in parliament only applied to the use of those proceedings in a court or tribunal. This position has been explicitly rejected by the Senate. The Senate has consistently asserted that the immunity also protects privileged material against incursion by the executive and executive agencies. It is important that DPS and others proceed on the basis of the Senate's firm view with respect to the scope of parliamentary privilege. Any action taken on the basis of a narrower interpretation may draw the intense scrutiny of this committee and the Senate.

The committee acknowledges the steps DPS has taken to improve its procedure in relation to the quest to provide DPS employee data. However, there is a broader question about ensuring that the procedures DPS follows embeds principles which reflect that data held on the parliamentary system is held on behalf of the parliament and subject to the constraints imposed by parliamentary privilege. In other words, the default position in relation to electronic systems which capture sensitive information about the activities of parliamentarians is that they should be used only in the manner and for the purposes authorised. It would support more consistency in this regard for an overarching set of principles to be developed which can be applied to new systems or scenarios and which provide context for the purpose of more detailed codes and policies.

To address this, the committee has recommended that DPS, in consultation with the clerks, draft a statement of principles regarding the handling of data held on the electronic systems managed on behalf of the parliament. The committee proposes to consider and approve those principles and recommends than they should only be amended in future with the approval of the committee.

Perhaps as critical as the specific policies which regulate the handling of information in the parliamentary environment is fostering a culture among parliamentary service officers that places the institutional integrity of the parliament at the centre of decision-making. To support the consistent application of the principles for handling parliamentary data, we have recommended that induction processes for staff of DPS should ensure officers understand the distinct features of parliamentary service, including the implications of parliamentary privilege for their work.

The committee places on record its appreciation to those who gave evidence to the inquiry and particularly acknowledges the difficult personal circumstances in which some submitters and witnesses provided evidence. Finally, I'd like to thank my colleagues on the committee for their considered and collegiate approach to this matter. I commend the report to the Senate.

Question agreed to.