The NBN Leaks: Parliamentary privilege?

Parliament House was raided by the AFP last week to investigate leaks about the NBN. The Labor party are claiming Parliamentary privilege on the documents that were seized, which is stipulated in section 49 of the Constitution. Parliamentary privilege has a long history before the Australian Government even existed.

What is Parliamentary privilege?

This term refers to special legal rights which apply to both Houses of Parliament, its committees and members. It includes the privileges and immunities of the Houses of Parliament, plus the powers to protect the integrity of their process and punish breaches and contempts.

The principle of Parliamentary privilege has a long history and has been passed down to Australia from the United Kingdom. The foundation was enshrined in the UK’s Bill of Rights 1688:

Freedom of Speech
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.

The powers and privilege of each House of the UK Parliament include powers to order attendance at Parliament, the power to arrest and imprison people guilty of a breach of privilege, the power to suspend or expel Members and the right of free speech in Parliament (as above).

Breaches of privilege contain things such as wilful disobedience to orders, wilful obstruction of business in the House, insults, reflections, indignities and libel on the character of Members of the House, assault on Members and the interference with officers of the House in the discharge of their duties.

Immunities include things said by Members in Parliamentary debate, immunity from arrest or imprisonment for civil causes while in Parliament and not having to attend jury duty. There are also some immunities for witnesses to be protected from arrest once summoned to the Parliament and evidence given not being able to be used.

Many of the Australian Colonies implemented the same or similar privileges in their Parliaments. Before federation a number of people were sent to jail by Speakers of the Colonial Parliaments for contempt of Parliament. The contempts included bribing and unduly influencing members of the assembly and media publishers printing libellous content. Some of those that were jailed appealed, all the way up to the Privy Council, but most of the time the imprisonments were found to be valid.

At Federation the powers, privileges and immunities of Parliament were stipulated in section 49 of the Constitution:

Section 49 Privileges etc. of Houses
The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

Up until 1987, the powers, privileges and immunities of MP’s and Senators reflected that of the House of Commons in the UK. In that year the Parliamentary Privileges Act 1987 was passed, which outlines the laws for privileges.

The Parliament House website explains the main features:

  • 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 Committee of Privileges and Members’ Interests 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 1987 creates a special category of criminal offence in order to strengthen the protection available to witnesses who give evidence to parliamentary committees

So MP’s and Senators can say things in Parliament that might get them in trouble with libel laws outside the building. But even if they do have greater freedom of speech than us in some aspects there are other aspects where their language is limited. For instance you might have heard complaints about ‘unparliamentary language’ whereby MP’s and Senators have to retract comments they said about another member (ie. You can’t call someone who sits in Parliament a liar).

So what happened with the AFP raids?

Since 2014 there have been consistent leaks to the media about time and cost blowouts to the NBN. The claim is that NBN staff have been giving information and documents to Senator Conroy and his staff, who have then leaked them to the press.

During the election campaign the offices and homes of Stephen Conroy and some of his staff were searched by the AFP. And then just last week the AFP ‘raided’ Parliament House to access emails of Labor staffers. The Labor party is claiming Parliamentary privilege over the documents and they have been bagged up and placed with clerks of the House and the Senate, until this matter is decided. Senator Conroy has stated that the police raids were:

An extraordinary attack on the parliament and its constitutional duty to hold the government of the day to account.

Are these leaks holding the Government to account? And how is Parliamentary privilege involved?

Would documents given by an NBN staffer to Senator Conroy be covered under Parliamentary privilege?

In the last Parliament Stephen Conroy was a member of the National Broadband Network select committee. This might mean that NBN staff giving him documents about problems with the NBN might be privileged.

Why does this matter to the AFP raid?

The AFP are gathering evidence to mount a case after the NBN Co reported the leaks to the federal police. But people are starting to ask what crime has been committed. If a whistle-blower from the NBN has leaked information to a Senator is that a crime? Is a Senator or his staff giving information to the media a crime?

The warrant to search Parliament House has outlined the alleged criminal offences. One of these includes Section 70 of the Crimes Act 1914 which makes it an offence for a current or former Commonwealth officer to publish or communicate any fact or document which is his or her duty not to disclose. The Commonwealth officer that the warrant and legislation refer to, is the unknown NBN leaker.

The second alleged criminal offence is included in Section 79 of the Crimes Act 1914. This is slightly peculiar as it refers to a section of the act titled ‘official secrets’. The Australian Law review commission states:

Parliamentary privilege will normally override secrecy provisions, permitting the disclosure of protected information to Parliament or a parliamentary committee.

Mr Conroy may consider that his work on the NBN select committee means that any leaks that came to him or his staff from the NBN were protected by Parliamentary privilege. You might have another opinion.

Could these raids be a contempt of Parliament?

The AFP have a National Guideline for Execution of Search Warrants where Parliamentary privilege of which the purpose is to ensure that:

AFP officers execute search warrants in a way which does not amount to a contempt of Parliament and which gives a proper opportunity for claims for parliamentary privilege or public interest immunity to be raised and resolved.

It goes on:

Some of the principles of parliamentary privilege are set out in the Parliamentary Privileges Act 1987. They are designed to protect proceedings in Parliament from being questioned in the courts but they may also have the effect that documents and other things which attract parliamentary privilege cannot be seized under a search warrant.

Parliamentary privilege applies to any document or other thing which falls within the concept of "proceedings in parliament". That phrase is defined in the Parliamentary Privileges Act to mean 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. It includes evidence given before a committee, documents presented to a House or a committee, documents prepared for the purposes of the business of a House or committee and documents prepared incidentally to that business. It also includes documents prepared by a House or committee. The courts have held that a document sent to a Senator, which the Senator then determined to use in a House, also fell within the concept of proceedings in Parliament.

The matter has now been referred to the Senate Standing Committee of Privileges who will make a decision as to whether the documents seized in the raids are privileged. On top of that Senator Conroy has stated that he would like the privileges committee to investigate whether there has been “improper interference” or “attempted improper interference” with his work as a Senator. He stated:

I am also concerned that NBN Co may have acted on information obtained during the raids, over which I had claimed privilege, to penalise NBN Co staff alleged to have been connected to the provision of information to enable me to carry out my functions as a senator. Any adverse action against an employee of NBN Co because of a suspicion that they provided a senator with information in relation to proceedings in the parliament may also constitute a contempt.

There was at least one NBN staff member who attended the raids during the election campaign and it’s unclear whether anyone from NBN attended the Parliament House search. If that NBN staff member was able to read through some of the documents as they were collected and bagged up to be sent to the Clerk of the Senate, they may have been able to find what they wanted all along. The name of the NBN leaker.

It will be interesting to watch how this develops. Maybe we also need to have another look at whistle-blower protections.

The free speech aspect of Parliamentary privilege might also be something to watch out for in the 45th Parliament. In the past new Senator Derryn Hinch has been keen to name and shame alleged offenders of sex crimes. He might be freer to do this under Parliamentary privilege, but it could have an effect on the outcome of court cases.


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