Consideration of Item 250
2.1
Of the eight submissions to the Committee’s review, three - Australian Commission for Law Enforcement Integrity (ACLEI), Commonwealth Ombudsman and Attorney-General’s Department – were concerned with setting out the NACC, its differences from ACLEI, and the powers Item 250 would confer on the NACC; as well as oversight of the NACC’s use of powers under the TIA Act.
2.2
The ACLEI submission stated that:
The most logical and straightforward way to ensure that the stored communication and telecommunication data powers afforded to ACLEI are also available to the NACC is through the proposed amendment of section 110A(1) of the TIA Act to include the NACC in the definition of a ‘criminal law enforcement agency’. ACLEI is supportive of that amendment.
And:
With the dramatic increase in jurisdictional agencies, coupled with the requirement to only focus on serious or systemic corruption, it is entirely appropriate for the current powers conferred on ACLEI through the provisions of the TIA Act to also be conferred on the NACC.
2.3
The Uniting Church in Australia, Synod of Victoria and Tasmania’s submission was supportive of Item 250 stating that the Synod
supports the new National Anti-Corruption Commission (NACC) having the ability to access metadata, stored data and to make use of International Production Orders (IPOs) as tools it needs to be effective in investigating corruption that falls within its mandate.
2.4
The remaining four submissions all had concerns with Item 250 and the powers it proposes to confer on the NACC. The issues raised are discussed in turn below.
Telecommunications powers and protection of journalists
2.5
The Law Council of Australia (Law Council) made detailed suggestions in relation to general issues of warrants powers under the TIA Act. In addition, the Law Council and Australia’s Right to Know Coalition (ARTK) raised concerns and made suggestions in relation to the protection of journalists.
The Law Council’s concerns in relation to the Telecommunications (Interception and Access) Act 1979
2.6
The Law Council raised concerns in relation to the use of powers under the TIA Act and, drawing on submissions made to previous Committee inquiries, recommended that the TIA Act should be amended to address the following issues:
Only superior court judges should be eligible for appointment as issuing authorities for all types of surveillance warrants. Alternatively, as a minimum, the power to issue warrants authorising the most intrusive surveillance powers should be limited to superior court judges who are appointed in their personal capacities
Chapter 4A of the TIA Act should be amended to confer on the Commonwealth Ombudsman a standing function of review, including the ability to conduct own-motion reviews, in relation to the exercise of electronic surveillance powers to ensure that recurring areas of non-compliance are addressed
Necessity and proportionality
In the context of any amalgamation of TIA Act electronic surveillance warrant types, recommendation 80 of the Richardson Review should be implemented in relation to any new warrant types. Namely, electronic surveillance should only be authorised where it is necessary for, and proportionate to, the purposes of an investigation
Under section 116 of the TIA Act, a stored communication warrant may be issued if there are reasonable grounds for suspecting that a particular carrier holds stored communications that the person has made and the information that would be likely obtained in connection with the investigation by the agency of a ‘serious contravention’. The Law Council has previously noted its preference that higher penalty thresholds are established to ensure that these extensive powers are used sparingly and only when they are proportionate to the seriousness of the offence.
Protections for journalists
2.7
As part of its commentary on the TIA Act the Law Council addressed Journalist Information Warrants as follows:
warrants should only be issued in relation to journalists and media organisations where they are authorised by a judge of a superior court of record. Further, the role of the public interest advocate for the purposes of Journalist Information Warrants sought under Chapter 4, Part 4-1, Division 4C of the TIA Act should be strengthened by including further transparency and accountability mechanisms.
2.8
ARTK provided the Committee with a detailed submission setting out its concerns in relation to the protection of journalists and their sources. Its submission referred to section 31 of the NACC Bill which provides, in relation to identifying confidential informants, that journalists and their employers are ‘not required to do anything under this Act that would disclose the identity or enable that identity to be ascertained’.
2.9
ARTK set out three issues in relation to section 31 that it wished to see addressed:
First, under section 31, the protection only applies to the journalist to whom the information is imparted and their employer. It does not extend to those in the editorial chain, or other participants in the publishing process. As currently drafted, the protection under section 31 can be circumvented by asking one of these other individuals (e.g. an editor or an assistant to the journalist) about the identity of the source, who will be compelled to answer as they are not able to rely on the protection. If they refuse, they will be caught by the contempt provisions.
Second, under section 31(2) the protection only relates to the informant's identity, it does not protect any other information. A journalist can still be asked to disclose any other information about their source, including the information the source provided them. This is more stark given the NACC Bill does not enable a person to rely on a "public interest" exception to the provision of information in answering questions (section 114).
Third, the protection does not protect the informant themselves. The informant can be asked if they spoke to the journalist and will have no protection to rely on in refusing to answer the question: they are not protected by section 31 (despite the section’s title), nor can they rely on refusing to answer on the basis of self-incrimination or the public interest under sections 113 and 114 of the NACC Bill.
2.10
Two other concerns relating to warrants were set out by ARTK as follows:
section 31(4) of the National Anti-Corruption Commission Bill 2022 (NACC Bill) does not extend to the issuing or execution of search warrants and other forms of warrant. If a journalist refuses to answer questions or produce documents which would identify their source relying on section 31, or the NACC suspects that the journalist will respond as such, they can simply seek and execute a warrant, obtaining copies of materials identifying the informant. Under the current form of the NACC Bill, the journalist cannot prevent the NACC from taking or utilising such information.
section 124 allows a warrant to be issued if there are reasonable grounds for suspecting the person has evidential material and that that evidence may be concealed, lost, mutilated or destroyed if a notice to produce was issued. If the recipient of the warrant is a journalist, the public interest in issuing the warrant must be considered if the evidential material relates to an alleged offence against a secrecy provision. As noted above, the warrant provision allows the NACC to easily circumvent the protection afforded under section 31. Section 31 is in effect negated when the NACC can obtain the relevant information through warrants.
2.11
ARTK listed five key principles for how warrants relating to journalists should be issued:
1
The application for a warrant should be made to a judge of a superior court, and they should apply the relevant tests.
2
Public interest should be a component of the statutory test for the issuing of a warrant pertaining to material held by a journalist.
3
The application for the warrant should be the subject of a contested hearing.
4
The role of judges should not be limited to that of a judicial review or other action relating to a decision regarding a warrant taken by the relevant person.
5
The journalist and/or media organisation should be notified, to allow time for the journalist and/or media organisation to find representation.
2.12
ARTK submitted that the key to all the principles espoused above is the need to be able to contest warrants issued to journalists or media organisations in an appropriate forum.
2.13
In its submission, the Attorney-General’s Department (AGD) stated that:
The Government considers that improved protections for press freedom are needed and intends to progress further legislative reform. The Government is examining the recommendations of two completed parliamentary inquiries into press freedom being this Committee’s 2020 Inquiry into the impact of law enforcement and intelligence powers on the freedom of the press, and the 2021 Senate Environment and Communications References Committee Inquiry into press freedom.
Cabinet and national security decision making
2.14
Dr William Stoltz drew particular attention to the potential negative effects arising from the NACC's use of the TIA Act's interception powers upon members of the Commonwealth Cabinet; namely the impact such interception could have on Cabinet and national security decision making. He argued that special safeguards need to be established for when an investigation seeks to use interception powers in relation to a Cabinet member or Cabinet and national security information.
2.15
One option put forward by Dr Stoltz would be for the Bills to lay out more specifically that where a Judge or AAT member is considering a NACC warrant, they must:
be advised as to the likelihood of the investigation interacting with a Cabinet member or their staff; and
if the investigation will be interacting with these people, the authorising officer must have regard for the investigation's potential to breach Cabinet confidentiality or otherwise disrupt the proper functioning of the Cabinet.
2.16
Dr Stoltz offered some caution in relation to this option as it would
rely heavily on the discretion of a Judge or AAT member to make judgements about Cabinet norms and practices, a task they mightn't be naturally suited to given this would not be a question of legality alone.
2.17
A second option suggested by Dr Stoltz was the creation of a new category of 'serious corruption offences' that lays out types of Commonwealth corruption that are so egregious as to naturally justify the risks investigations may pose to Cabinet and national security information, and other sensitive factors.
2.18
A third option could
include that where the Commissioner seeks to undertake collection activities that would lead to the direct or incidental collection of Cabinet or national security information, they must first consult with the Governor-General and/or the Chief Justice of the High Court on the potential impact to the proper functioning of Australia's Cabinet. The Governor-General and the Chief Justice of the High Court could be appropriate officials for this role because they are not otherwise covered by the NACC. Also, by virtue of their positions, they will be well-placed to weigh-up the potentially competing considerations concerning an investigation's impact on the proper functioning of Cabinet, national security, the public interest, and accountable government. The Cabinet Secretary could be a similarly proper source of advice, however they are not a statutory role and are themselves, a member of Cabinet which could create a perceived conflict of interest.
Parliamentary privilege
Privilege defined
2.19
The term parliamentary privilege refers to the special rights and immunities which apply to the Houses, their committees and their members, and which are considered essential for the proper operation of the Parliament. These rights and immunities allow the Houses to meet and carry out their proper constitutional roles, for committees to operate effectively, for Members and Senators to discharge their responsibilities to their constituents, and for others properly involved in the parliamentary processes to carry out their duties and responsibilities without obstruction or fear of prosecution.
2.20
The Houses of the Commonwealth Parliament, in common with other parliaments, are given a special legal status because it is recognised that the tasks they have to perform require additional powers and protections. Special rights and immunities are necessary because of the functions of the Houses, for example, the need to be able to debate matters of importance freely, to discuss grievances and to conduct investigations effectively without interference.
Main features of the law and practice
2.21
Section 49 of the Commonwealth Constitution provides that, until declared by the Parliament, the powers, privileges and immunities of the Senate and the House of Representatives and the members and committees of each House shall be those of the British House of Commons at the time of Federation (1901).
2.22
It was not until 1987 and following a thorough review of the whole subject by a joint select committee, that the Commonwealth Parliament passed comprehensive legislation in this area: the Parliamentary Privileges Act 1987 (Parliamentary Privileges Act).
2.23
The main features of the arrangements in the Commonwealth Parliament are as follows:
each House, its committees and members enjoy certain rights and immunities (exemptions from the ordinary law), such as the ability to speak freely in parliament without fear of prosecution (known as the privilege of freedom of speech)
each House has the power to deal with offences—contempts—which interfere with its functioning
each House has the power to reprimand, imprison or impose fines for offences
complaints are dealt with internally (within parliament)—they may be considered by the relevant House’s privileges committee which will report to the House which may then act on the matter in light of the committee’s report
there is a limited ability for decisions of the House to imprison people to be reviewed in court
the Parliamentary Privileges Act creates a special category of criminal offence in order to strengthen the protection available to witnesses who give evidence to parliamentary committees.
2.24
Importantly, in setting out parliamentary privilege in court proceedings, section 16 of the Parliamentary Privileges Act provides that proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
The privilege of freedom of speech
2.25
The privilege of freedom of speech is often described as the most important of all privileges. Its origins date from the British Bill of Rights of 1689. Article 9 of the Bill of Rights provides:
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
2.26
As this was one of the privileges of the House of Commons in 1901, it was inherited by the House and the Senate under the terms of the Commonwealth Constitution. Section 16 of the Parliamentary Privileges Act preserves the application of the traditional expression of this privilege but, as noted above, spells out in some detail just what may be covered by the term ‘proceedings in Parliament’.
2.27
The practical effect of this is that those taking part in proceedings in parliament enjoy absolute privilege. It is well known that members may not be sued if they make defamatory statements when taking part in debates in the House, but the privilege is wider than that and, for instance, protects members from being prosecuted if in a debate they make a statement that would otherwise be a criminal offence—for example, a member who felt it necessary to reveal a matter which was covered by a secrecy provision in a law such as personal tax information.
Claiming privilege
2.28
Complaints of breach of privilege or contempt may only be raised formally by Members and Senators in the House in which they sit. The normal course is for a member or senator to raise the issue ‘on a matter of privilege’ and to immediately outline the complaint briefly. The relevant Presiding Officer then considers the matter and, if satisfied that it has been raised at the first available opportunity and that there is some substance in it (the technical term being that a prima facie case exists) they may give precedence to a motion on the matter. Usually such a motion would be that the issue be referred to the relevant House’s privileges committee, although other motions could be proposed, or a member might advise the House that they did not wish to pursue the matter further. Whether or not a matter is sent to the privileges committee is thus for the relevant House itself to decide.
The issues before the Committee
2.29
In relation to parliamentary privilege evidence to the Committee focussed on two issues:
1
Noting that section 274 of the NACC Act preserves the powers, privileges and immunities of each House of Parliament, members of each House of Parliament, the committees of each House of the Parliament, and joint committees of both Houses of the Parliament, whether parliamentary privilege is sufficiently recognised and protected by the TIA Act.
2
The exercise of covert investigative powers in relation to material which may be protected by parliamentary privilege.
Interaction between the TIA Act and parliamentary privilege
2.30
Submissions from the Clerk of the House of Representatives and Clerk of the Senate (Joint Clerks) and the Law Council were instructive in relation to parliamentary privilege and its interplay with legislation. The Joint Clerks’ submission stated that there
is a presumption that the ‘powers, privileges and immunities’ of the Houses, their committees and members (per section 49 of the Constitution) are not affected by legislation except by express words … If an Act does not by express words affect those powers etc., the parliament’s privileges are not disturbed.
2.31
The Law Council concluded that it was ‘doubtful that parliamentary privilege is abrogated in the context of the TIA Act’ and pointed out that ‘as a general principle, Courts will be reluctant to draw the implication of an abrogation of parliamentary privilege from a statutory scheme.’
2.32
The Joint Clerks came to the same conclusion stating that:
There is no express provision in the TIA Act overriding the operation of parliamentary privilege. It follows that the use of investigative powers under that Act is subject to privilege. This is currently the case with the exercise of these powers by the ACLEI and would be the case if equivalent powers were conferred on the NACC.
2.33
The Joint Clerks’ submission nevertheless raised concerns that, although there was nothing in the TIA Act overriding the operation of parliamentary privilege, as the NACC Act could apply to parliamentarians there was an increased likelihood of it being used in relation to privileged parliamentary material and that
because the TIA Act is silent on the matter, there is a greater risk that people may incorrectly interpret its provisions as circumscribing parliamentary privilege. In those circumstances, it may be unsatisfactory to rely on a presumption that privilege is not affected.
2.34
Given this risk the Joint Clerks suggested that the Committee may wish to consider
whether it would be wise for the TIA Act to be amended to include an explicit provision regarding the relationship between the powers agencies exercise under the Act and parliamentary privilege. That provision could be modelled on clause 274 of the National Anti-Corruption Commission Bill 2022 or subsections 9A (1) and (3) of the Foreign Influence and Transparency Scheme Act 2018. An alternative approach might be to expressly provide in the NACC legislation that privilege is not disturbed by the Commission’s use of powers under the TIA Act. This approach may also be warranted in relation to the use of other covert investigative powers.
The exercise of covert investigative powers in relation to material which may be protected by parliamentary privilege
2.35
Having established that parliamentary privilege would apply to the use of TIA Act powers under the NACC Act, the next issue raised with the Committee was how covert investigative powers may be used in relation to material which may be protected by parliamentary privilege.
2.36
As a starting point, after setting out the experience of various states that have anti-corruption commissions, including a WA Supreme Court decision and a New South Wales Legislative Council Privileges Committee report on the execution of search warrants, it was recommended in evidence that there should be some form of protocol as to how matters of privilege as between the NACC and the parliament should be determined.
2.37
The Joint Clerks noted that, in relation to search warrants
an MOU between the Executive Government and the Commonwealth Parliament, and the associated AFP National Guideline, provide an appropriate level of procedural protection to parliamentarians and to material in their possession which is closely connected to parliamentary business. These protections comprise an opportunity for parliamentarians to raise claims of privilege and a mechanism respecting the right of the relevant House to determine those claims. Material subject to a claim is temporarily withheld from investigation; material determined to be privileged is returned to the parliamentarian.
2.38
The issue of MOUs and guidelines in relation to the use of powers under the TIA Act is complicated by the fact that collection of evidence would be carried out in a covert manner. It ‘is a criminal offence to divulge information about the exercise of covert powers or material collected through the exercise of those powers’ and, axiomatically, it would be difficult for matters of privilege to be raised in relation to investigatory matters that an individual parliamentarian or, indeed, the Parliament would be unaware of.
2.39
On the first point, while parliamentary privilege may protect disclosures of information in relation to the use of covert powers, the Joint Clerks advised that relevant laws may need to be amended to allow
agencies to provide information to the Houses, their committees, or members, so that claims of privilege may be made and determined.
2.40
The Joint Clerks addressed how such amendments could be made and suggested that
it may assist investigative agencies, including the NACC, to have relevant legislation (including the TIA Act) amended to explicitly permit agencies to provide information in relation to the exercise of covert powers for these purposes.
Alternatively, it may be that privilege is best secured through more general legislative amendments providing that it is not lawful for unpublished material within the ambit of ‘proceedings in Parliament’ to be seized, accessed or observed through the use of covert powers.
2.41
Secondly, as set out above, the powers conferred by Item 250 are covert and a claim of parliamentary privilege needs to be made by a parliamentarian. If a parliamentarian is subject to a covert surveillance, they will not have the opportunity to make the claim of privilege over any of their stored communications. Therefore, someone needs to be made aware of the surveillance or potential for surveillance so that either a claim of privilege can be made or a determination can be made that privilege does not apply.
2.42
This issue was aired by Richard Pye, Clerk of the Senate:
What it might involve is, instead of the parliamentarian who is subject to a covert search being the person who examines the privilege question, you might use President or Speaker. You might use someone else with an attachment to the parliament. If you're establishing other commissioners to look at the parliament then you might use an avenue along there. The idea might be that some standards be developed in relation to the point at which an agency might have to make a decision as to whether privilege might be engaged in a matter or might not, and might in those circumstances need to take additional advice at a higher level within an organisation, which is something that now exists in the search warrant space. These are really difficult questions.
2.43
Two options for an independent adviser in relation to parliamentary privilege were suggested to the Committee by Mr Pye: the Presiding Officers (that is, the Speaker of the House and the President of the Senate), or the Clerks of the House and Senate.
2.44
A third option was put forward by the Law Council: a two-stage approach for the safeguarding of parliamentary privilege consisting of a pre-authorisation safeguard using an independent public interest advocate, and a post-collection safeguard using parliamentary staff.
2.45
Noting that there were difficulties in relation to using the Presiding Officers as a third party, discussed below in Committee comment, the Committee focused on the remaining two options.
2.46
In relation to the Clerks of the House and Senate performing an independent advisory role Mr Pye pointed out that under the search warrant protocol, when material about which a claim of privilege has been made is sealed away, it's usually given to the Clerk for safekeeping. He concluded that the independent advisory role in relation to the Item 250 power was something that the Clerks could do but cautioned that the
difficulty, of course, is that there may well come a point at which you end up being the adviser to the investigative body and also a senator or a member comes to you for advice on the same issue and you've got to make sure that you have a clear separation there between those two roles.
2.47
Mr Pye went on to suggest that another alternative might be to go to ‘former clerks’.
2.48
The Law Council’s proposed pre and post authorisation safeguard model was described as follows:
pre-authorisation safeguard: expanding the existing role of public interest advocates for the purposes of Journalist Information Warrants sought under Chapter 4, Part 4-1 of the TIA Act to also include providing public interest submissions in the context of parliamentary privilege—the main purpose of this stage of review is to highlight the potential for parliamentary privilege information to be elicited under the scope of a particular warrant application and to ensure any collection of parliamentary privilege information occurs as a last resort; and
post-collection safeguard: officers appointed by the privileges Committee of the relevant House of Parliament administer a document review process that precisely identifies the documents within the scope of ‘proceedings in Parliament’ … the main purpose of this stage of review is to assert privilege claims over documents or information. These protections should be bolstered by detailed binding codes of practice that establish guidelines in relation to how investigatory agencies treat parliamentary privilege information discussed above.
2.49
The Law Council suggested that the Committee might consider the following recommendations:
inserting a provision in the TIA Act, drawing by way of analogy from section 180H of the TIA Act, that provides, in effect, that an authorised officer must not make an authorisation under section 178 or 180 if the authorised officer ‘knows or reasonably believes’ the target of the surveillance is a parliamentarian;
requiring external warrant authorisation for surveillance powers likely to interfere with parliamentary privilege, drawing by analogy from the mechanism for obtaining a Journalist Information Warrant under Part 4-1 of the TIA Act;
providing for an expanded role for the public interest advocate to act as an independent contradictor scrutinising warrant applications likely to interfere with parliamentary privilege similar to the Queensland model; and
ensuring the Part 4-1 issuing authority is required to consider a public interest test similar to the one in section 180T (2)(b).
2.50
In addition, the Law Council provided information in relation to resolving privilege disputes and the jurisdiction of the courts noting that
it is a well-accepted principle of law that Courts have jurisdiction to determine parliamentary privilege questions in two circumstances:
where a question of parliamentary privilege is raised in a case already before the court, as for example, where a party seeks to rely on something said to be done in parliament; and
where the court has been asked to review action by parliament to enforce its proceedings, most commonly where parliament has by warrant sought to subject a citizen to restraint by arrest.
Oversight of the NACC’s use of powers under the TIA Act
2.51
AGD and the Commonwealth Ombudsman both commented on the oversight of the NACC’s use of powers under the TIA Act.
Consistent with existing oversight arrangements under the TIA Act, the Commission’s use of powers under that Act would be subject to oversight by the Commonwealth Ombudsman. This will ensure that the Commission’s use of these powers will be subject to the same, consistent standards of oversight that the Ombudsman provides for all other Commonwealth, state and territory law enforcement and anti-corruption agencies.
The Inspector of the Commission would also be able to receive information that has been lawfully obtained by another agency under the TIA Act and rely on that information as part of an investigation into serious or systemic corruption relating to the Commission. This will ensure that the Inspector is able to work in partnership with relevant Commonwealth, state and territory agencies to investigate allegations of criminal corruption relating to the Commission.
2.53
The Commonwealth Ombudsman set out the role of his Office and how it would be empowered to oversight the NACC’s use of covert and intrusive powers under the TIA Act and concluded that he was
satisfied that the mechanisms for my Office to oversee the NACC’s use of covert and intrusive powers are sufficient. My Office continues to actively engage with the government’s work on Electronic Surveillance Reform to inform opportunities for improvement in this area of our work.
Committee comment
2.54
Item 250 is a deceptively simple amendment to the TIA Act which, in effect, proposes to give a wide range of powers to the NACC as follows:
Telecommunications interception powers
Stored communications powers
Telecommunications data (commonly referred to as ‘metadata’) powers
International production orders.
2.55
The Committee notes that the Australian Government has committed to reform Australia’s laws governing electronic surveillance in their entirety and is currently working on a major review to this end. That is expected to encompass the broader issues raised in relation to the TIA Act by the Law Council and ARTK.
2.56
The Committee expects that, even if it were to recommend any changes to the TIA Act as requested by the Law Council and ARTK, these would likely be subsumed into the work on the reform of Australia’s electronic surveillance framework.
2.57
The Committee therefore recommends that the Department of Home Affairs and the Attorney-General’s Department provide the Committee with an outline of the work to date in relation to reform of Australia’s electronic surveillance framework. As it is clear this work has already been done this should be provided to the Committee within one month of the tabling of this report with the option of the Committee receiving an oral briefing on it.
2.58
The Committee recommends that the Department of Home Affairs and the Attorney-General’s Department provide the Committee with an outline of the work to date in relation to reform of Australia’s electronic surveillance framework. This should include the option of the Committee receiving an oral briefing.
2.59
The Committee notes that the Joint Select Committee on National Anti-Corruption Commission Legislation’s Advisory report on the provisions of the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 recommended that clause 31 of the NACC Bill be amended to expressly extend the protection of journalists’ sources to all staff within the relevant news organisation with knowledge of the informant’s identity. Sub-section 31(2) of the NACC Bill was subsequently amended and the protection in the Act now extends beyond journalists and their employers to also cover persons assisting the journalist in a professional capacity or under the same employer.
2.60
The Committee is also heartened by the evidence it received from AGD that the Government considers that improved protections for press freedom are needed, and that it intends to progress further legislative reform including reforms recommended by the Committee in its Press Freedom Report.
2.61
The issues raised by the Joint Clerks in relation to parliamentary privilege and Dr Stoltz in relation to cabinet confidentiality are significant.
2.62
In relation to Cabinet matters and the three suggestions put forward by Dr Stoltz, the Committee is not drawn to the creation of new offences or of involving the Chief Justice of the High Court or the Governor-General in relation to investigatory matters.
2.63
The Committee is also reluctant to recommend changes to the TIA Act warrant process to include a further matter for an issuing authority’s consideration without having had evidence from affected parties such as law enforcement as to how this might impact on investigations.
2.64
The Committee began its consideration of this issue prior to the passage of the Bill with associated amendments and had concluded that it would not be difficult to identify a class of people, such as cabinet members, senior military officers and senior intelligence agency officers, where authorising a warrant would come with legal complexity and policy sensitivity that would require a ‘higher bar’ in relation to who authorises a warrant in relation to accessing their stored or telecommunications data. The Committee’s view was that such warrants should only be authorised by a superior court judge.
2.65
As noted in the previous chapter, amendments to the TIA Act were made in the Consequential Bill as finally passed into law, such that warrants under the TIA Act can only be issued to the NACC by superior Court Judges who have consented to being declared or appointed as an eligible Judge or issuing authority for the purposes of the TIA Act, and whom the Attorney-General has so declared or appointed.
2.66
In the Committee’s view this amendment negates the concerns raised by Dr Stoltz in relation to cabinet confidentiality and national security.
2.67
In relation to parliamentary privilege the Committee notes the following comment in the Joint Select Committee on National Anti-Corruption Commission Legislation’s Advisory report on the provisions of the National Anti-Corruption Commission Bill 2022 and the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022, with reference to the arrangements in place between the AFP and Parliament for search warrants:
The Committee is of the view that the NACC should look to establish a similar approach to the handling of parliamentary privilege via a memorandum of understanding with the Parliament.
2.68
The Committee agrees with this comment. However, there are still issues in relation to parliamentary privilege that the Committee discusses below.
2.69
The first issue the Committee considered is whether parliamentary privilege is abrogated by the TIA Act in conjunction with the NACC Act. On its face, the TIA Act does not abrogate parliamentary privilege by express words. The Committee shares the Joint Clerks’ concern, however, that an investigator with little understanding of parliamentary privilege reading the TIA Act may not be prompted to consider the issues around parliamentary privilege.
2.70
It was suggested to the Committee that the TIA Act be amended making it clear that the use of powers under the Act does not abrogate parliamentary privilege. The Committee notes that, in addition to sections 9A (1) and (3) of the Foreign Influence and Transparency Scheme Act 2018 other sections of Acts also seek to preserve parliamentary privilege. This includes but is not limited to, section 10 of the Evidence Act 1995, section 15E of the Crimes Act 1914 and section 317ZRA of the Telecommunications Act 1997. However, the Committee further notes that the Office of the Parliamentary Counsel’s Drafting Directions No. 4.2 Referral of drafts to agencies expressly states that if a provision ‘refers to parliamentary privilege or is intended to relate to parliamentary privilege’ it should be referred to the ‘General Counsel (Constitutional) Office of Constitutional Law’. Whilst it is clear that it is sometimes necessary to insert references to parliamentary privilege in legislation this is not undertaken lightly by legislative drafters.
2.71
Having taken all of this into account and to address concerns about parliamentary privilege and covert powers, the Committee would encourage the Government to ensure the protection of parliamentary privilege in the context of its Reform of Australia’s Electronic Surveillance Framework. Further, the Committee considers that the TIA Act should be expressly amended to ensure that the provisions of that Act do not abrogate parliamentary privilege.
2.72
The Committee recommends that the Government ensure the protection of parliamentary privilege in relation to the use of covert powers in its Reform of Australia’s Electronic Surveillance Framework.
Further the Committee considers that the Telecommunications (Interception and Access) Act 1979 should be expressly amended to ensure that the provisions of that Act do not abrogate parliamentary privilege.
2.73
Further, the Committee recommends that, to overcome concerns regarding a lack of knowledge and understanding of parliamentary privilege, the Government convey to the National Anti-Corruption Commission and each other agency tasked with using powers under the TIA Act, its expectation that investigators will receive training in relation to parliamentary privilege. In making such a recommendation the Committee notes that it has not taken evidence on this issue from each agency exercising powers under the TIA Act and understands that such training may already be in existence.
2.74
The Committee recommends that the Government convey to the National Anti-Corruption Commission and each other agency tasked with using powers under the Telecommunications (Interception and Access) Act 1979, its expectation that investigators will receive training in relation to parliamentary privilege.
2.75
The second issue the Committee considered, including by seeking further confidential opinions from experts in parliamentary privilege, was how parliamentary privilege could be safeguarded in an operational context.
2.76
The Committee notes that an inherent issue here is that parliamentary privilege can only be claimed by a parliamentarian, but a parliamentarian can't claim privilege if they don't know that they're subject to covert surveillance. In the Committee’s view, it is entirely appropriate that these powers are covert, because investigators wouldn't want to tip off the subject of the warrant that they were under investigation.
2.77
The evidence to the Committee was that there needs to be an independent third party to consider relevant warrants and, if required, make a claim of privilege on behalf of the parliamentarian—a trusted party who wouldn't notify the parliamentarian. The Committee considers that neither of the two options proposed—using the Presiding Officers or the Clerks of the House or the Senate—is optimal.
2.78
In relation to having Presiding Officers as the independent third party, the Committee immediately concluded that although the role of Presiding Officer in the Australian Parliament is unquestionably a position held in high respect, they are nevertheless generally members of the party that holds government and are elected to those positions with the support that is the basis for forming government. Their party affiliation may put them in a difficult position or lead to a suggestion of apprehended bias. The Committee therefore did not seek further evidence on this option.
2.79
Clerks of the House or the Senate, while well placed to provide advice in relation to parliamentary privilege, must be seen to be entirely without bias. Following the same line of argument above in relation to the Presiding Officers, the Committee formed the view that asking existing Clerks to assist in relation to such sensitive issues would place them in an invidious position and would not be in the best interests of the Parliament. Moreover, as the Clerk of the Senate noted, potential conflict might arise between acting as an independent assessor in relation to any claim, and a request to advise a Member or Senator.
2.80
The Committee considered the Law Council’s position that parliamentary privilege issues could be dealt with by expanding the existing role of public interest advocates for the purposes of Journalist Information Warrants sought under Chapter 4, Part 4-1 of the TIA Act to also include providing public interest submissions in the context of parliamentary privilege, and, following any collection of investigative material, using officers appointed by the privileges committee of the relevant House of Parliament to administer a document review process that precisely identifies the documents within the scope of ‘proceedings in Parliament’.
2.81
The main concern the Committee would have in relation to this suggestion is that a ‘public interest advocate’ would not, in the Committee’s view, be likely to have enough specialist knowledge to assist in relation to issues of parliamentary privilege.
2.82
Finally, the Committee considered a parliamentary privilege review body consisting of previous clerks of the Parliament of Australia. It is clear that previous clerks would have the requisite knowledge and impartiality to consider such issues. Equally, clerks of State and Territory parliaments/legislatures would also have this requisite knowledge. The Committee has not come to a view on who would be best to provide this advice but is of the view that there needs to be mechanism included in the primary legislation ensuring the protection of parliamentary privilege during National Anti-Corruption Commission investigations.
2.83
The Committee recommends that the National Anti-Corruption Commission Act 2022 be amended to provide for a mechanism to ensure the protection of Parliamentary Privilege during National Anti-Corruption Commission investigations.
2.84
The Committee notes the MOU in place between the Australian Government and the Commonwealth Parliament in relation to search warrants which, along with the associated AFP National Guideline, provides illustrative guidance on the design of a similar MOU in respect to the protection of parliamentary privilege.
2.85
The detailed pre and post collection considerations set out by the Law Council were instructive in alerting the Committee to the operational issues that may confront an investigator seeking to use powers under the TIA Act in relation to a parliamentarian. The Committee commends this information to the drafters of the memorandum of understanding in relation to covert powers and parliamentary privilege.
2.86
The Committee recommends that there be a memorandum of understanding between the National Anti-Corruption Commission, the Australian Government and the Parliament in relation to the use of covert powers and parliamentary privilege.
2.87
The Committee notes that, although not traversed in detail during evidence taking, it does have some concerns about, and makes recommendation on, two security issues. These both relate to security of information.
2.88
The Committee recommends that, given the sensitivity of information to be collected and stored by the National Anti-Corruption Commission, the NACC should be required to comply with the Essential Eight Maturity Model to Maturity Level Three as recommended by the Australian Cyber Security Centre and that it report annually to the Parliament on its compliance.
2.89
The Committee recommends that, given the risk of insider threat, employees at the National Anti-Corruption Commission be required to obtain a security clearance at least to Negative Vetting Level 1, with increased requirements up to Positive Vetting depending on their access to sensitive information.
Mr Peter Khalil MP
Chair
23 March 2023