Execution of Search Warrants in Senators’ Offices
75TH REPORT
March 1999
MEMBERS OF THE COMMITTEE
Senator Robert Ray (Chair) (Victoria)
Senator Sue Knowles (Deputy Chairman) (Western Australia)
Senator Helen Coonan (New South Wales)
Senator Alan Eggleston (Western Australia)
Senator Chris Evans (Western Australia)
Senator Marise Payne (New South Wales)
Senator the Hon. Nick Sherry (Tasmania)
The Senate
Parliament House
CANBERRA ACT 2600
Telephone: (02) 6277 3360
Facsimile: (02) 6277 3199
E-mail: Priv.sen@aph.gov.au
TABLE OF CONTENTS
Introduction
Background
Comment
Conclusion
Recommendation
Appendices -
Please note: Appendices are not available electronically. For hard copies
please contact the Committee.
Appendix A
Letter, dated 1 December 1998, from Senator Sue West, Chair, Senate
Procedure Committee - Attachment: Note, dated 20 November 1998, entitled
Execution of Search Warrants in Senators’ Offices
Appendix B
Letter, dated 22 January 1999, from Mr Harry Evans, Clerk of the Senate
Appendix C
General guidelines between the Australian Federal Police and the Law
Council of Australia as to the execution of search warrants on lawyers’
premises, law societies and like institutions in circumstances where
a claim of legal professional privilege is made, with effect from
3 March 1997
EXECUTION OF SEARCH WARRANTS IN SENATORS' OFFICES
1.1 On 1 December 1998, Senator Sue West, Deputy
President of the Senate, as Chair of the Senate Procedure Committee,
asked that the Senate Committee of Privileges consider the matter of
the execution of search warrants in senators' offices and the suggestion
that the Presiding Officers seek an agreement with the Attorney-General
to govern the execution of search warrants. [1]
The request no doubt derived from the Procedure Committee's awareness
that the Privileges Committee has had considerable experience in dealing
with matters arising from senators' communications with constituents,
and, in particular, the possible privilege implications of the provision
by constituents of documents and other information to senators “for
purposes of or incidental to, the transaction of business of a House
or a committee”. [2]
1.2 A background note provided to the Procedure
Committee, and transmitted to the Privileges Committee, set out the
impetus for both committees to consider the matter. [3] Briefly, the note raised concerns about the ability
of police to execute search warrants in senators' offices and to seize
documents without regard to information that may be protected by parliamentary
privilege.
1.3 It drew attention to a proposal originally
put forward by the House of Representatives Committee of Privileges,
at the suggestion of the President of the Senate, that the Presiding
Officers and the Australian Federal Police enter into an agreement to
provide procedures for the execution of search warrants in senators'
and members' offices. That committee's report [4]
drew attention to an agreement executed between the Law Council of Australia
and the police, whereby documents in lawyers' offices which are subject
to a search warrant and which are claimed to be protected by legal professional
privilege are sealed and delivered to a neutral third party until their
status can be determined by a court. It suggested that analogous procedures
could be developed within the parliamentary context.
1.4 The note advised that there had been correspondence
between the Presiding Officers and the Attorney-General on the matter,
but that no action had been taken, and concluded that “it may be
helpful for the Senate Procedure Committee to report in support of this
proposal so as to reinvigorate consideration of the matter”.
1.5 On receiving the request, the Committee of
Privileges wrote to the Clerk of the Senate, as Secretary to the Procedure
Committee, asking whether he wished to make a comment, or expand, on
matters addressed in the briefing note. [5]
Between the Committee's writing to the Clerk and receipt of the Clerk's
response, yet another matter arose involving the execution of a search
warrant in the offices of a senator, both state and at Parliament House,
which, in the Committee's view, has given further impetus to the need
to have the matter clarified. [6]
1.6 In expanding on the general comments made
in the earlier briefing note, the Clerk drew attention to recent developments
within the parliament, and in the understanding by law officers and
the courts as to how the law of parliamentary privilege might protect
material held by senators. The Committee has drawn on his observations
in making this report.
1.7 Parliamentary privilege has been called in
aid primarily to ensure that there is no questioning or impeachment
of parliamentary proceedings in a court or tribunal, and has always
provided a basis for a lawful refusal to provide evidence at all, without
going to the use to which the evidence may be put:
For example, if a senator were to be asked
to give evidence in court about the content of the senator's speech
in the Senate, the senator could refuse to answer any questions about
the speech on the basis that answering in itself would facilitate
a questioning of proceedings in Parliament, regardless of the use
to which the answers might be put. [7]
1.8 It has not been clear, however, whether this
protection has applied to documentary evidence in the possession of
a senator such that a senator could lawfully resist compulsory processes
for the production of documents on the basis that the production of
those documents would, or would tend to, infringe parliamentary privilege.
Consequently, senators have over the years been advised that they might
not have immunity from the production of documents in legal proceedings
and that accordingly they should not retain any material which might
be the subject of such processes.
1.9 Recent developments in both the United States
courts and the Australian legal system suggest that these precautions
might now be able to be substantially modified. The United States courts
have concluded that production of documents may be resisted where interference
with legislative activities is involved regardless of the use to which
the documentary evidence is to be put (the Brown and Williamson
case). Similarly, having had that judgment drawn to its attention, the
Queensland Court of Appeal has appeared to accept that parliamentary
privilege could provide a basis for resisting an order for discovery
of documents, depending on the nature of the documents (the O'Chee
case) [8], although the application to the
individual circumstances of the O'Chee case is yet to be determined
by the Queensland courts. These developments have dovetailed with this
Committee's own tentative steps towards concluding that privileged information
may include information provided to senators for the purpose of transacting
business in the Senate. [9]
1.10 While the above developments will certainly
assist senators in their dealings with the courts, there still remains
a difficulty with dealing with law enforcement authorities at an earlier
stage in the process, that is, when search warrants are executed. As
the Clerk has observed, the execution of a search warrant means that
documents immediately fall into the hands of those seeking them, the
law enforcement authorities. In the absence of some process whereby
the question of parliamentary privilege can be raised, the recipient
of a warrant has no opportunity to raise the question whether material
should be produced to those seeking it. It is for this reason that the
proposal for special procedures in respect of search warrants has been
suggested.
1.11 In considering the suggestion proposed by
the House of Representatives Committee, the Committee of Privileges
has had access to an updated version of the general guidelines between
the Australian Federal Police and the Law Council of Australia, which
commenced with effect from 3 March 1997. [10] The Committee commends them to the Presiding
Officers and the Attorney-General as a basis for development of appropriate
protocols between the Presiding Officers and the law enforcement authorities.
1.12 It is noteworthy that in the most recent
case referred to in the Clerk's note, the search protocols, as set out
in paragraphs 16 to 29 of the guidelines, appear to have been followed.
The Committee sees no reason why a similar arrangement, including ultimately
delivery of material which may be covered by parliamentary privilege
to a court, should not be reached in the near future.
1.13 Although, as indicated at paragraph 1.9
above, the extent to which parliamentary privilege applies to documents
in the possession of senators is yet to be determined, the Committee
does not regard this as presenting an insuperable barrier to the early
implementation of the proposal. As with legal professional privilege,
judgments will be required at all levels in individual cases. Obviously,
certain documents — for example, committee submissions and minutes
— are clearly covered by parliamentary privilege. It would therefore
be expected that, in accordance with paragraph 35 of the guidelines,
such documents would not be seized. The remaining documents the subject
of possible claims of privilege would be remitted to the courts for
decision. Appropriate arrangements for copying the documents or other
material could be made as required, again in accordance with the Law
Council guidelines. The conduct of the most recent search of a senator's
office appears to provide reassurance that such practical matters may
readily be handled.
1.14 The Committee of Privileges therefore recommends
that the general guidelines between the Australian Federal Police and
the Law Council of Australia should form the basis for discussion between
the Presiding Officers and the Attorney-General with a view to early
settlement of this matter.
1.15 So far as the scope of parliamentary privilege
is concerned, the Committee reiterates an undertaking given in its 67th
report [11] that, when legal proceedings
in respect of the Senator O'Chee matter have concluded, it will
seek from the Senate a general reference to establish whether it should
make recommendations as to any further legislative initiatives which
may be required.
Robert Ray
Chairman
Footnotes
[1] Appendix A.
[2] Subsection 16(2)
of the Parliamentary Privileges Act 1987.
[3] Appendix A, attachment.
[4] Parliamentary Paper
No. 376/1995.
[5] Letter dated 8 December
1998.
[6] See Clerk's response,
22 January 1999, Appendix B, p. 3.
[7] Appendix B, p. 1.
[8] Appendix B, p. 2.
[9] See especially paragraphs
2.40-2.41 of the 67th report, Parliamentary Paper No. 141/1997,
and paras. 2.16-2.17 of the 72nd report, Parliamentary Paper No. 117/98.
[10] Appendix C.
[11] op. cit., para.
2.49.