Verona Burgess: leak investigators land a target that can’t be controlled


As governments hand ever-stronger powers of intrusion and electronic eavesdropping to law-enforcement and intelligence agencies, the immunities and protections of parliamentary privilege, enshrined in the Constitution, are facing new threats.

The Senate Committee of Privilege, chaired by Labor’s Jacinta Collins, has tabled its final report on last year’s controversial police raids and seizure of leaked documents relating to blowouts in the National Broadband Network.

Nobody has been thrown into the dungeon for contempt of parliament but the consequences have a way to run.

To recap, on May 19 last year — not quite two weeks into the election campaign — the Australian Federal Police executed warrants on both the Melbourne office of then Opposition Senator Stephen Conroy and the Brunswick home of a former Conroy staffer working for then Opposition communications spokesman Jason Clare.

“It refrained from a finding of contempt, essentially because it was unable to prove that the seized material had been used to penalize the NBNCo staff.”

The police had brought along an NBNCo officer, sworn in as a ‘constable assisting’ who, shockingly, proceeded to take snapshots of certain documents and transmit them to his boss during the raid.

An immediate media and political furore erupted amid Conroy’s claim of parliamentary privilege. The seized documents were sealed and sent to the Senate in Canberra.

But before their fate was determined the AFP executed another warrant, this time on Parliament House servers in Canberra, on August 24 — after the July 2 election but with parliament still dissolved — seizing further information on the NBNCo leaks.

This time the AFP had warned of its impending raid the day before, in accordance with its 2005 national guideline for execution of search warrants where parliamentary privilege may be concerned — itself developed with a 2005 memorandum of understanding between the presiding officers and the then Attorney-General.

Clare claimed privilege and those documents were immediately secured.

Because neither the House of Representatives (Clare is the Member for Blaxland) nor the Senate (Conroy’s former chamber) can bind the other, each examined the matters separately.

The green chamber’s Privileges and Members’ Interests Committee, chaired by Liberal Member for McMillan Russell Broadbent, found on November 28 that the documents seized in Parliament House were protected and should be returned to Clare.

In a strongly worded report it said, inter alia, ‘The committee considers that the material falls within the definition of “proceedings in Parliament” and so is not subject to impeachment or question, and that the search warrant amounts to such an impeaching or questioning. The committee considers that the operation of parliamentary privilege is of such fundamental importance to a member and her or his ability to perform duties as a member.’

The House adopted the recommendation on December 1.

The Senate did things a little differently. The committee tabled a background report, Status of Material Seized Under Warrant (Report 163) in December and the Senate authorised it to examine the documents.

On the advice of the then Clerk, Rosemary Laing, it adopted a three-step approach previously taken by the NSW Legislative Council to consider whether the seized material fell within ‘proceedings of parliament’.

It duly decided that it did, and explained why in its second and final report, Search Warrants and the Senate (Report 164), tabled last week.

But it was very concerned that investigators had been able to examine the documents before they were seized and sealed and before they necessarily recognised that a claim of privilege was made.

“This approach may have enabled information gleaned from this process to be communicated to, and used by, persons in a manner not authorised by the warrant,” it said.

It was important because, unlike the Reps committee, the Senate was also inquiring into a possible contempt of parliament.

This related to the use and transmission of the photos taken in Melbourne by the NBNCo  ‘constable assisting’, who also viewed certain emails during the Brunswick raid that identified two NBNCo employees.

The committee had to consider whether there was any improper interference, or attempted improper interference with the free performance by Conroy of his duties as a senator; whether disciplinary or other adverse action was taken against anyone in connection with the alleged provision of information to Conroy; and, if so, whether any contempts were committed.

In short, it decided that improper interference did occur and the AFP national guideline needs remedial action. But it refrained from a finding of contempt, essentially because it was unable to prove that the seized material had been used to penalize the NBNCo staff.

That, however, is not the end.

The committee is now holding an inquiry into parliamentary privilege and the expanding use of intrusive powers by the state, to report in August, with written submissions due by April 13.

It will examine the current protocols for protecting parliamentary material against the use of such powers by law enforcement and intelligence agencies — including telecommunications interception, electronic surveillance and metadata domestic preservation orders.

It will consider whether the use of these powers interferes with the ability of members of parliament to perform their functions and if so, what needs to change.

Don’t all rush at once.

Top photo:  Australian Federal Police in the basement at Parliament House in Canberra, August 24, 2016 to conduct a raid on Department of Parliamentary Services’ email servers. AAP Image/Mick Tsikas.

Verona Burgess is a long-time Canberra reporter covering the Australian Public Service. Her column appears fortnightly in The Mandarin.

  • HW

    Well observed, and acutely significant: as Prof Cheryl Saunders has observed the ‘marginalisation’ of Parliament has to be stopped. Otherwise it’s chaos and ultimately Failed State status for us of the Lucky Country.