Thursday, 3 September 2020
Statement by the President
Remote Participation, Security Arrangements
Colleagues, I'd like to make two statements now that question time has concluded. First, touch wood, now that we have successfully delivered our first fortnight of remote participation, I would like to acknowledge the efforts of people across DPS who designed, delivered and supported the system that has enabled this to be a success, building on the work undertaken that has seen more than 100 committee hearings with active video conference facilities since April. This has involved delivering not just the technical aspects but also direct contact with participating senators to ensure they were equipped and prepared ahead of this sitting period and troubleshooting technical issues as they arose. The list of people involved is lengthy, so I will identify just some of the key people, led by DPS branch heads Con Sfyris and Christine White: from ICT James Lawson, Gary Aisbitt, Lyz Lawrence, Michael York, Chris Williams and Tim Ryan; from parliamentary broadcasting Michael Ferguson and Matthew Bourke. On behalf of the Senate, I thank you.
Second, I need to make a statement relating to security management of the building, and it corresponds to a similar statement made by the Speaker at the end of the June sittings. The electronic access control system is currently in the process of being activated on the Senate side of Parliament House. In common terms, this refers to the new swipe cards that replace keys to access your suites. The rollout of this project predates my time as President, as part of the suite of security upgrades undertaken across the building over several years. I have always appreciated, and continue to appreciate, the sensitivity senators have regarding access control and associated data records and management, so I'm making this statement to the Senate.
Accordingly, I ensured that extensive consultation has been undertaken prior to activation. The Speaker and I have now formally approved and enacted the Electronic Access Control System Code Of Practice, which governs the management of this system, including its associated data. Prior to my approval of this policy it was considered and approved by the Senate Standing Committee on Appropriations, Staffing and Security. As a condition of that approval, I agreed to make this statement to the Senate.
First, the specific focus of all usage of the EACS and EACS data is for the purposes of security, safety and law enforcement. One of the key purposes of the code of practice is to function as a safeguard for parliamentarians against the possibility that the EAC system or its data may be used in a manner which improperly interferes with the functions and authority of the Senate, or with the free performance by senators of their parliamentary duties. In this regard, the administration of the EACS and the powers given to officers under the code of practice have effect only subject to the powers, privileges and immunities of the houses and their members. These protections are appropriately spelled out in the text of the code.
Second, while changes to the EACS code of practice must be approved by the presiding officers—that is, the Speaker and myself—I will not make any change without consultation with the Senate Standing Committee on Appropriations, Staffing and Security unless required as a matter of urgency, when, in such instance, it will be reported to that committee as soon as possible.
Finally, the code of practice includes a requirement that the code itself and compliance with it be reviewed at least every two years by an independent and suitably qualified person, appointed by the Assistant Secretary, Security Branch, in consultation with the Security Management Board of Parliament House. This process has taken several years. As I said, I inherited it upon taking office in November 2017 and I would like to thank the many senators and officials who have assisted in finalising this code, including former Senator Collins and Senator O'Neill, but particularly to Senator McAllister, who has worked and consulted extensively, reflecting senators' concerns over the last 10 months, a personal thank you as well.
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!