Possible interference with the execution of warrants
3.1
This chapter concerns possible improper
interference and adverse actions arising from the execution of the warrants. As
noted in the previous chapter, the underlying facts also connect to the
committee’s consideration of the question whether the impact of the execution
of the search warrants may have amounted to an improper interference with the
functions of the parliament, and whether the seized material ought be protected
on that basis.
3.2
The matter was referred on 1 September 2016 in
the following terms:
In relation to the execution of search warrants by the
Australian Federal Police (AFP) on the Melbourne office of Senator Conroy and
the home of an Opposition staff member on 19-20 May 2016, and on the Department
of Parliamentary Services at Parliament House, Canberra, on 24 August 2016 or
subsequent actions allegedly undertaken by the AFP and NBN Co Limited, as
specified in Senator Conroy’s letter to the President of the Senate of 30
August 2016 raising a matter of privilege:
a)
whether there was any improper interference, or
attempted improper interference with, the free performance by Senator Conroy of
his duties as a senator;
b)
whether disciplinary or other adverse action was
taken against any person in connection with the alleged provision of
information to Senator Conroy; and
c)
if so, whether any contempts were committed in
respect of those matters.
‘improper interference’
3.3
The Senate’s contempt jurisdiction is intended
to protect the ability of the Senate, its committees and its members to carry
out their functions and exercise their authority without improper interference.
This overarching principle informs any inquiry into a possible contempt. In
Commonwealth law, contempt is assessed by reference to a statutory test in
section 4 of the Parliamentary Privileges
Act 1987:
4 Essential element of offences
Conduct (including the use of words) does not constitute an
offence against a House [that is, a contempt] unless it amounts, or is intended
or likely to amount, to an improper interference with the free exercise by a
House or committee of its authority or functions, or with the free performance
by a member of the member’s duties as a member.
3.4
Any conduct may constitute an offence if it
satisfies this test. However, the threshold for a finding of contempt is a high
one, requiring evidence of an improper act intended or likely to substantially
interfere with the functions or duties of the Senate or senators. In
determining whether this threshold is reached the committee must take into
account the criteria in Privilege Resolution 3. To summarise those
requirements, the committee must consider:
a)
whether the use of the contempt jurisdiction is
necessary to protect the Senate, its committees and senators against improper
acts that may obstruct them in the performance of their functions;
b)
whether there is an alternative remedy; and
c)
whether a person who committed an act which
might be held to be a contempt did so knowingly, or had any reasonable excuse
for doing so.
3.5
It is, in particular, this last criteria, going
to the intentions of those against whom allegations are made, which guides the
committee in determining whether an act should be considered to be ‘improper’
and whether a contempt should be found. The committee also has regard to
Privilege Resolution 6, which contains a non-exhaustive list of possible
contempts.
Possible contempts
3.6
Paragraph (a) of the reference deals with the
contempt of interference with the duties of a senator. In this regard, the
Senate has resolved that:
A person shall not improperly interfere with the free
exercise by the Senate or a committee of its authority, or with the free
performance by a senator of the senator’s duties as a senator.
3.7
Paragraph (b) deals with possible adverse
actions against a person providing information to a senator. As the committee
has previously noted:
Where there is a sufficiently direct link between the
provision of information [to a senator] and ‘proceedings in parliament’, the
Senate may treat the imposition of a penalty on a person who provides information
to a senator as a contempt.
3.8
Accordingly the Senate may, in relevant
circumstances, use its contempt powers to protect the provision of information
to a senator even where that occurs outside of the formal transaction of Senate
or committee business. This power rests on the same principles as the Senate’s
power to protect witnesses and other participants in parliamentary proceedings,
as to which the Senate has resolved:
A person shall not inflict any penalty or injury upon, or
deprive of any benefit, another person on account of any evidence given or to
be given before the Senate or a committee.
3.9
Conduct that offends against these prohibitions
may be dealt with by the Senate as a contempt. It is the committee’s task in
this inquiry to establish the facts and to determine whether any contempt may
have occurred.
Contempt submissions
3.10
The committee noted in its preliminary report
that ‘the underlying facts of the contempt inquiry – apparent misuse of seized
material which should, according to the terms of the national guideline, have
been sealed and unavailable – also raise concerns … about the effectiveness of
the processes in the guideline and, in particular, concerns that the guideline
does not sufficiently protect members’ information.’
3.11
In this regard, former Senator Conroy submits
that he made a claim of privilege over all of the subject material, and that
all documents and information seized should therefore have been sealed and delivered
to an agreed third party – the Clerk of the Senate. However, he submits that
information which should have been quarantined in this way was used in a manner
contrary to the national guideline. There are two elements to these
allegations. The first involves photographs being taken during the execution of
the search warrant at his CPO office, and being sent to NBN officers off-site.
The second involves an allegation that information ‘subject to a privilege
claim’ may have been used in disciplinary action against NBN employees who were
alleged to have provided information to him.
3.12
On the first matter, the former senator submits
that an NBN employee assisting with the execution of the warrant copied
documents over which privilege had been claimed and ‘improperly disseminated them
to other NBN Co employees’. The base facts here were confirmed in the AFP
submission to the privilege inquiry. The officers executing the warrant were
accompanied by an NBN employee appointed as a ‘constable assisting’ who, on
occasion, ‘took a mobile phone snapshot of the front page of the NBN document
in question before transmitting it to another NBN investigator for advice’
about the provenance of some NBN-branded documents.
3.13
The Conroy submission goes on to allege that the
AFP warrant holder ‘improperly authorised’ this activity ‘despite the fact that
those documents ought to have been quarantined in the office of the Clerk of
the Senate’, and makes similar comments about the officer in command of the
execution of the warrants.
3.14
In relation to the second matter, it is alleged
that NBN Co also acted on information obtained during the execution of the
warrants at Senator Conroy’s office and the home of a staff member which,
again, ought to have been quarantined in the Clerk’s office; including by taking
adverse action against two NBN Co staff.
3.15
The submission suggests that these actions
demonstrate contempt for the Senate and also violated the MOU and National
Guideline for the execution of search warrants, and it concludes that the
Privileges Committee should make findings of contempt against persons involved,
and that persons and organisations may also be guilty of a criminal offence
under the Privileges Act. The committee makes no comment on this last point,
which would be a matter for the courts.
Dealing with contempt allegations
3.16
In conducting inquiries, the Privileges
Committee follows procedures set down by the Senate. These are chiefly
contained in Privilege Resolution No. 1 (procedures for the protection of
witnesses to be followed by Senate committees generally) and No. 2 (additional
protections for witnesses before the Privileges Committee in contempt matters).
In particular, Resolution 2 requires the committee to ensure that a person
against whom allegations are made:
- is informed of the nature of the allegations
- is informed of the particulars of any evidence
given in respect of the person and
- is extended a reasonable opportunity to respond
to such allegations and evidence.
3.17
The committee therefore wrote to the AFP and to
NBN Co, informing them of the nature of the allegations and the underlying
evidence, and providing them an opportunity to respond.
AFP submission
3.18
The allegations made by former Senator Conroy
centre on: (a) photographs being taken during the execution of the search
warrant at the CPO and (b) information ‘subject to a privilege claim’ being
used against NBN employees alleged to have provided information to him. The AFP
submission disclaims involvement in any disciplinary or other adverse action as
described in paragraph (b), assumes that paragraph therefore to be directed at
NBN Co, and does not otherwise address that matter.
3.19
The submission accepts that privilege requires
that, in executing search warrants, the AFP ‘must ensure that parliamentarians
are not subject to improper interference with their performance of their
parliamentary duties’ but argues that contempt findings should ‘be reserved for
the most serious cases demonstrably interfering with the processes of
Parliament and the responsibilities of members’; should not ‘lightly be made’;
and moreover should not be made ‘where public officers are fulfilling their
lawful public duties in good faith and for a proper purpose, as occurred in
this case’.
3.20
On the question of improper interference, in
relation to the photographing of records and their transmission ‘to a third
party NBN Co officer’, the submission contends that ‘it is not established that
the Senator’s free performance of his duties was in fact interfered with. If it
was, any interference was transient and minor’. The submission goes on to argue
that:
- if there was interference, it was not improper
interference ‘but arose as a consequence of the execution of a valid warrant,
conducted within the existing legal and policy framework and in a manner
consistent with accepted and usual practice’
- ‘any such interference occurred in good faith
and for a proper lawful purpose, with the express intention of avoid and
minimising interference with parliamentary duties’.
3.21
Generally, it is submitted that a finding of
contempt should not be made, having regard to the criteria the committee must
consider.
Committee’s comments
3.22
The AFP suggests that ‘[e]xecution of search
warrants and seizure of documents may “interfere” with the free performance of
a senator’s duties where it limits the ability of a senator to discharge their
parliamentary business’. The submission quotes a 1995 House Privileges Committee
report, suggesting that ‘clashing or coming into opposition to the normal or
ordinary operation or workings of the office’ could constitute interference.
This is a narrow interpretation of interference, but the committee agrees that,
in this narrow sense, the execution of the search warrants did not impede the
senator or his office in any meaningful way.
3.23
In this case, however, there is a broader
question, which is also addressed in the submission: whether the search and
seizure was properly undertaken in accordance with the National Guideline. The
AFP submits that ‘there was no breach of the undertaking to deal with documents
in the manner agreed in the MoU and National Guideline’ and describes the
processes followed in the execution of the warrant to narrow the range of the
documents seized. Photographing and transmitting copies of the records was
intended to reduce the size and scope of the seizure. (‘The impugned conduct
was intended, and only intended, to minimise any disruption’.)
3.24
However, the committee considers that the
problem is one of the potential leakage of information that should be
protected. The execution of the search warrants here involved examination of
documents to determine whether they were in scope (and so seized and sealed, to
be withheld from any investigation until their status is resolved) or out of
scope and therefore put aside. Information gleaned during this filtering
process is problematic. The transmission of such information to a third party
increases the risk that it may be used for purposes beyond those authorised by
the warrant.
3.25
That is what NBN Co is alleged to have done in
this case. Of this, the AFP says that the images transmitted to NBN Co were
used only to ‘identify the records which were relevant to the investigation…
They were not otherwise used to the AFP’s knowledge’. However, the second
allegation, considered below in the context of the NBN Co submission,
demonstrates the risk.
NBN Co submission
The
photography allegations
3.26
On the allegations concerning the transmission
of photographs during the execution of the search warrant at the CPO, the NBN
Co submission repeats the explanation given by the AFP that only the front
covers were photographed, and they were disseminated for a very limited purpose,
arguing that the conduct ‘cannot sensibly be said to have improperly interfered
with’ Senator Conroy’s duties. The submission points out that, in any case, the
NBN employee/constable assisting acted at all times under the direction of the
AFP, and argues that the requisite intention for a contempt was not there.
Alleged
use of information against employees
3.27
The second allegation made by Senator Conroy is
that information that was subject to a privilege claim may have been used
against NBN employees who were alleged to have provided information to him. The
only evidence before the committee in relation to this matter arises from the
execution of the second warrant, in Brunswick.
3.28
NBN Co submitted that a contempt could only be
found if the documents were actually privileged, rather than merely subject to
a claim of privilege. This is not correct. The Senate may find that any
improper interference amounts to a contempt, if the requisite criteria are met.
Given that the purpose of the guideline is to enable claims of privilege to be
made and determined, conduct which interferes with this purpose may certainly
be treated as a contempt.
3.29
NBN Co concedes that disciplinary action was, in
fact, taken against two employees, but submits that it occurred independently
of the AFP investigation, that it was taken solely as identified through its
own internal investigation and that ‘the breaches relied upon did not include
any communications with parliamentarians, their offices or their staff’.
3.30
However, elsewhere in its submission, NBN Co
states that, during the execution of the warrant at the Brunswick residence, ‘certain
emails were seen that appear to show that two nbn employees had been communicating with [the staffer] about
matters pertaining to nbn’. The
submission does not address who it was that saw the emails, nor how this
information was communicated to NBN Co.
3.31
The committee asked NBN Co to confirm whether
the two employees had been identified for investigation prior to, or after, the
information referred to above came to the attention of NBN Co, and whether that
identification was attributed solely, or even partly, to the emails discovered
during the execution of the warrants. In its response, NBN Co confirmed that
one employee had already been under active investigation, while the other ‘had
previously been identified as having had access to one of the stolen documents
[but] nbn had not yet commenced an
active investigation’ at the time the information came to their attention.
3.32
These matters concern the committee. They
demonstrate the risk that information which – to use Senator Conroy’s phrase –
ought be quarantined may be used for purposes which are not authorised by the
warrant and are inconsistent with the purpose of the guideline.
AFP
response
3.33
The committee sought the AFP’s views on this
matter, which had not been raised in the AFP’s initial submission. The AFP
response stated:
As part of the role of the constable assisting in the
execution of the Brunswick warrant, the NBN Co officer visually inspected
emails on a computer. The purpose of that inspection was to provide advice to
the warrant holder about the relevant [sic] of those emails to the
investigation, with a view to seizing them (subject to any claim of
parliamentary privilege). No photographs of the documents were taken by the
constable assisting. As far as the AFP is aware, there was no information
transmitted from the site of the Brunswick warrant to NBN Co.
The AFP is not able to comment on any use NBN Co may have
made of information seen at the Brunswick warrant. The AFP can confirm that the
AFP did not authorise the use of information from the warrant premises for any
purpose other than the execution of the warrant.
3.34
The fact that unauthorised use may have been
made of such information demonstrates that the processes provided for under the
guidelines may not adequately protect members’ information. The guideline is
intended to enable claims of privilege to be made and determined, with seized
material sealed away with a third party until that question is resolved. Any
practice which, in the meantime, allows the use of material discovered at the
scene of a search warrant undermines that purpose. Two practices in particular
seem, in this case, to have risked undermining that purpose: the appointment as
‘constables assisting’ of persons employed by the entity which referred the
matter to the AFP; and allowing information from the warrant sites to be communicated
offsite despite claims of privilege being made.
3.35
The committee was also interested to consider a
process question related to this: the question of the timing of the privilege
claim. Both the AFP and NBN Co submissions make something of the fact that
certain actions (for example, the filtering of documents to narrow the scope of
what was to be seized) occurred before a final claim of privilege was made. This
appears to be in aid of an argument that documents examined for this purpose
(and information gleaned during this process) are not protected (or, is not
protected unless and until those documents are seized and sealed). This may be
defensible from a procedural point of view, but again would seem to undermine
the purpose of the protocol.
Should any contempt be found?
3.36
In determining whether a contempt should be
found, the committee is required to have regard to the criteria in Privilege
Resolution 3. To again summarise those requirements, the committee must
consider:
a)
whether the use of the contempt jurisdiction is
necessary to protect the Senate, its committees and senators against improper
acts that may obstruct them in the performance of their functions;
b)
whether there is an alternative remedy; and
c)
whether a person who committed an act which
might be held to be a contempt did so knowingly, or had any reasonable excuse
for doing so.
3.37
The committee considers that the execution of
the Melbourne warrants may have had the effect of interfering with the duties
of a senator, and with the functions of the parliament more broadly, by
undermining the operation of the national guideline and diminishing the
protection that should be available to parliamentary material during the
execution of search warrants. The committee also notes that information which
warranted protection may have been used to the detriment of a person with a
connection to parliamentary proceedings. These are concerns which clearly meet
the first of these criteria.
3.38
On that basis, the committee considers that an
improper interference has occurred on this occasion. The committee is always
reluctant, however, to recommend that a contempt be found in the absence of the
requisite intent, and does not do so here. In particular, the committee must
consider whether a person who committed an act which might be held to be a
contempt did so knowingly, or had a reasonable
excuse for doing so.
3.39
In considering the question of intent, the
committee notes the argument, put in
various forms by both the AFP and NBN Co, that any interference ‘arose as a consequence
of the execution of a valid warrant, conducted within the existing legal and
policy framework and in a manner consistent with accepted and usual practice’
and agrees that contempt should not generally be found ‘where public officers
are fulfilling their lawful public duties in good faith and for a proper
purpose…’. The committee also notes that the constables assisting in the
warrants were acting under the direction of AFP officers and may not,
themselves, have appreciated the strictures which ought to have applied to the
use of information discovered during the execution of the warrants.
3.40
The guideline is silent on matters such as the
appointment of constables assisting, which the committee understands to be a
routine matter where the AFP requires local or expert knowledge in the
execution of warrants, and the involvement of third parties connected to the
allegations being investigated. It seems to the committee that this practice
may be worthy of being brought within the national guideline. The risk that
information which ought to be quarantined may be used for other purposes is
heightened where third parties are involved off site. These are matters the
committee will return to in its broader inquiry into the adequacy of privilege
in the use of intrusive powers.
Conclusions and recommendation
3.41
In relation to the first allegation, the
committee is satisfied that the dissemination of photographs of material was
ultimately conducted with appropriate regard to restricting their use. An
alternative remedy (in the terms of criterion 3(b)) was effectively put in
place with an agreement that the photographs be deleted. Similar safeguards
appear not to have been in place in relation to the second allegation. The
second allegation therefore presents more difficulty.
3.42
The committee notes that information discovered
during the execution of the Brunswick warrant may have assisted in identifying
persons of interest in the investigation. However there is conjecture as to the
extent to which that material may have been used, and as to whether those
persons would in any case have been identified without that information. NBN Co
has assured the committee that, to the extent that any action was taken against
employees, the information acted upon was identified through its own internal
investigations and ‘the breaches relied upon did not include any communications
with parliamentarians, their offices or their staff’.
3.43
The committee remains concerned at the potential
that unauthorised use of this information may have adversely affected an NBN Co
employee. The committee has previously held that the threshold for a finding of
contempt is a high one, requiring cogent evidence of an improper act or motive.
The committee recognises the difficulty of conclusively establishing the
requisite intent in this case, noting the matters mentioned in paragraph 3.39,
above. This difficulty is compounded because the guideline allows the practices
mentioned in paragraph 3.40, which the committee considers may be incompatible
with its purposes. An alternative remedy in this matter, however, may lie in
the resolution of the privilege claim dealt with in the previous chapter.
3.44
The committee therefore refrains from
recommending that a contempt be found, but reinforces its recommendation that
the claim of privilege over the seized material should be upheld. The
committee, in chapter 2, recommended that the claim of privilege made over the
documents be upheld, because they met the test formulated by the committee to
demonstrate the requisite connection to parliamentary business. In finding that
an improper interference has occurred, as set out in this chapter, the
committee has also concluded that the seized material warrants protection on
those grounds.
3.45
One of the effects of the recommendation that
the claim of privilege be upheld is that the subject material would be withheld
from the investigation and, therefore, incapable of being used in any
prosecution or other legal proceedings against any person, thereby limiting any
detriment to any persons involved. The committee considers this to be an
acceptable outcome, given the difficulty of further establishing the facts of
the matter.
3.46
The committee also emphasises the need for remedial
action in relation to the guideline itself. In particular, if it is to meet its
stated purpose, the guideline must be revised to ensure that all persons
involved in the execution of warrants understand and respect the requirement to
quarantine information while claims of privilege are determined. This is a
matter the committee will consider in its inquiry on the adequacy of
parliamentary powers in the face of intrusive powers.
3.47
The committee therefore recommends that the Senate:
(a)
adopt the committee’s conclusion that the seized
material warrants protection on the grounds set out in this chapter,
(b)
adopt the committee’s conclusion that an
improper interference occurred but refrain from making a finding of contempt in
respect of the matters referred,
(c)
note the requirement for remedial action in
relation to the national guideline for the execution of search warrants where
parliamentary privilege may be involved, which the committee will address in
its inquiry into intrusive powers.
(Senator the Hon. Jacinta Collins)
Chair
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