Senate Finance and Public Administration Legislation Committee, , 1:30:02 to 1:39:31
Discussion on the application of parliamentary privilege regarding executive search warrants and the protection of senators' materials under resolution 38A.
Topics: Parliamentary privilege, Attorney-General
Speakers: Mr Henry Pike, Hon Jane Hume, Senator Karen Grogan, Unknown Speaker
Department of the Senate and we will start with Senator Hume.
>> Thank you, Chair. And I just want to thank you very much for tableabling the advertisement that's going out, the expressions of interest in the cler's position. Thank you very much. We did that during the break. [snorts] I want to uh ask just one last round of questions to the cler before I hand over to my colleague. I would be remiss not to do this considering this is your last Senate estimates. Um Mr. P. So at the last hearings I spoke to you about um the narrowing of the application of privilege. Well and you spoke to us about the narrowing of the application of privilege uh and particularly the submissions to the Senate committee on privileges part of the 189th report from the AG's department and the department of parliamentary services. So I'm wondering with whether we can use this opportunity to talk to the the two aspects of privilege that you mentioned before how they can be confused or incorrectly applied in a narrow way.
Uh certainly uh Senator um so the issue that we uh that we were discussing on the last occasion went to um the the aspect of privilege around the protection that it gives to um proceedings in parliament and the protection that it gives to the uh duties of senators as as duty as senators. Um there is sometimes a tendency for people to assume that the protection of parliamentary material before the court is the beginning and end of the protections afforded by parliamentary privilege. Um and we were specifically talking about the extension of that protection into areas uh beyond the courts. um and the experience that the parliament has had in relation to um the execution of search warrants. >> Yes. um which may involve privilege. Um may involve potentially privileged materials and the right of senators and and their staff and other participants in in the um in parliamentary proceedings to make a claim of privilege in relation to material that someone might be seeking to seize or access under a statutory power. and the Senate's position which is well established now that claims of privilege over such material must be determined by the Senate
>> by the senator
>> by the Senate itself >> on um but but the trigger for that is usually a senator saying hold on you're exercising a statutory power in relation to material that I hold um or material that has been given to me or material that I am using for procedure proceedings. I make a claim of privilege over that and that triggers a process for the quarantining of the material usually with the cler of the relevant house and um the question to be referred to the Senate privileges committee for um investigation as to whether the material warrants protection under privilege. And it's that aspect of privilege that um was being um elded a little bit in the uh submissions that you referred to from the Department of Parliamentary Services and the Attorney General's Department, but they are um that protection is something that the the Senate um has declared. Um in in the back of the standing orders there's um a resolution number 38B I think it is. People are checking for for me. These are all details that will fall out of my head in 3 months time I suspect. Um but that is a a resolution that the Senate passed in 2018 to um declare and reinforce Oh 38A. There you go. It's to to declare uh and reinforce that one of the purposes of privilege is to protect parliamentary material against incursion by executive agencies. So people exercising statutory search and seizure powers, people exercising covert statutory powers to access material that might be on a server or something like that. In all of those circumstances, um, privilege has probably not been abregated by the statutory the statute under which the powers are given. Um, all of almost all of the statutes either don't mention it at all in which case you can only um you can only narrow privilege by an express statutory provision to that effect. So if you don't mention it or what is more common is for the act that establishes the the search and seizure and access powers they will commonly say this does not abregate privilege. So in all of those circumstances, privilege obtains and the declaration um in continuing resolution number 38A which was made in December of 2018 is to say one of the purposes of privilege is to um guard against incursion of that material. It doesn't mean the material is um protected to an infinite degree. What it means is that the question of the protection of the material becomes a question for the the Senate. Um in the past in the the Conroy matter in 2016 in another matter involving the legal and constitutional affairs um legislation uh references committee um around 2018. Um the process that was followed was for the question to be put before by the Senate before the privileges committee and the privileges committee to recommend as it did in both of those cases that the material be withheld from the investigators and returned to the senator involved um because it was beyond the scope of the seizure powers to seize that material once it was analyzed by the Senate.
>> Okay. Thank you. That's uh very helpful I think to reiterate that I I I've just got two more lines of questioning and then I'll turn over to my colleague here. But as part of the continuation of the work recommended by the privileges Senate privileges committee, you have been engaged in developing new principles to help people better understand the process of applying privilege. That's correct.
>> That's right.
>> Yes. So what's the status of that work
perspective, the the purpose of the principles is to um guide uh the department of parliamentary services and the other parliamentary departments uh and I guess other agencies that might connect with the work of the parliament to understand the operation of privilege to protect different types of material. Um, I met with the secretary of DPS um, uh, and corresponded with her and and we, uh, engaged also with the cler of the House of Representatives to put together a draft, um, of those principles. I understand the draft went to the Senate Privileges Committee and also to the House Privileges Committee. Understand there's been some further work within that committee which has not been reported. Well, you will you will know the status of that aspect of it, but um my understanding was that um the committee and the department of parliamentary services were we're getting close to agreement. Um but uh uh I presume there'll be need to be a further meeting of the Senate committee in the next sittings to uh finalize that
>> is it expected that that process will be complete before your retirement?
>> I I believe so. I would be very surprised. Um and the president has met with the chair of the privileges committee on that matter as well and I think all indications are that um it's it's close to um finalization.
>> And how is the department managing or handling matters of privilege that might be covered by those principles while they're in development?
to some degree this is question for the department of parliamentary services but the >> I will be asking. Yeah, I suspected you would. Hello, Jala. Um, the uh the department itself um prepared a a um temporary protocol um at the end of last year which um so ahead of the the uh privileges committee reporting. I understand that that is what's being applied. Um, I imagine that if I were aware of the current status of the almost agreed principles, I'd be tempted to be applying those as well um in any relevant matters that that might come along.