Advice No. 29
Execution of search warrants in Senators' offices
The Privileges Committee should be advised of recent developments relating to search warrants.
On 22 April 2001 an item appeared in the Sunday Herald Sun headed ìMPs tipped off on raidsî. On the same day the Sunday Telegraph had an item headed ìRaid rules for MPs: Police must give warning of searchesî. Copies of these items are attached. They refer to a checklist used by the Australian Federal Police (AFP) for searches of offices of members of the Parliament under search warrant and to ìtrainingî undertaken by the AFP with the Clerk of the Senate. The items were based on an answer provided by the AFP to an estimates question on notice asked at the estimates hearing of the Legal and Constitutional Legislation Committee on 19 February 2001. Attached is a copy of the answer. The reference in the answer to AFP officers being ìinstructed in parliamentary privilege by Mr Harry Evans of the Senateî refers to arrangements for AFP officers to participate in one of the seminars, modified for their particular interest, on the subject of parliamentary privilege provided by the Department of the Senate.
At the seminar, it appeared that AFP officers present were involved in the task of revising AFP guidelines for the execution of search warrants in the offices of members of the Parliament. After some discussion of the issues involved, it was agreed that there would be some value in Senate officers, relevant AFP officers and relevant Attorney-General's Department officers meeting to discuss the preparation of the revised guidelines.
The need for guidelines was referred to in the 75th Report of the Senate Privileges Committee in March 1999 on the execution of search warrants in senatorsí offices, and the committee recommended that guidelines be prepared for discussion between the Presiding Officers and the Attorney-General. The report of the House of Representatives Privileges Committee of November 2000 on the status of the records and correspondence of members also recommended such guidelines.
I met accordingly with AFP and Attorney-Generalís Department officers on 7 May 2001. The Deputy Clerk of the House of Representatives also attended.
The discussions proceeded on the basis that the judgment of Mr Justice French in Crane v Gething represents the law on the subject for the time being, that a claim of privilege by a member has to be determined by the House concerned, and that the guidelines should be drawn up on that basis.
The Attorney-Generalís Department officers indicated that the development of the revised guidelines would now proceed with expedition, but the guidelines would need to be cleared by the Attorney-General. I suggested that, when the guidelines had been cleared by the AttorneyGeneral, they should be sent to the Privileges Committees of the two Houses for examination.
The AFP would prefer that officers executing search warrants be allowed to look at documents for which privilege was claimed to determine whether the documents were of interest to the 113 searchers. This could allow documents to be excluded from consideration and avoid the necessity of some person appointed by the House concerned examining the documents, as was done with the documents seized from Senator Crane. The AFP and Attorney-Generalís Department officers are concerned, as am I, about the possibility of members claiming privilege for large quantities of documents and police investigations and prosecution decisions being inordinately delayed while the documents are examined by some neutral third party. I indicated that it would probably not be acceptable to members for documents the subject of a claim of privilege to be examined by the searchers, but that as part of the guidelines perhaps members should be required to provide a general description of the nature of documents for which privilege is claimed as well as the basis of the claim. I added that the Privileges Committees would not, of course, be bound by this suggestion.
It was agreed that the discussions had assisted the officers in the process of revising the guidelines.