Finlayson Christopher: Privilege — Consideration of Interim Report of Privileges Committee Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary PrecinctText is incorporated into the Bound VolumeFinlayson Christopher: Privilege — Consideration of Interim Report of Privileges Committee Question of Privilege Regarding Use of Intrusive Powers Within the Parliamentary Precinct[Sitting date: 04 December 2013. Volume:695;Page:15250. Text is incorporated into the Bound Volume.]Hon CHRISTOPHER FINLAYSON (Attorney-General): I moveThat the House take note of the interim report of the Privileges Committee on a question of privilege regarding the use of intrusive powers within the parliamentary precincts. This year the Privileges Committee has looked at a number of important issues. The last report that we debated in this House related to the mutual respect that is required to be shown between Parliament and the courts. This report which has been the subject of some work on the part of the committee since July 2013 looks at the tensions that can arise in the parliamentary precincts between the powers and the privileges of Parliament and the executive branch of Government. In particular it deals with issues arising from the fact that the Parliamentary Service is responsible for holding and administering information relating to the executive.I want to begin by expressing my thanks to all those who gave evidence and assisted the committee particularly the Deputy Clerk of the House for her invaluable assistance. Let me begin by explaining what the report was about. A question arose about the use of intrusive powers in the parliamentary precincts so the Speaker asked the committee to inquire into the exercise of those intrusive powers against members of Parliament and in particular the release of information from parliamentary information and security systems.In his reference to the Privileges Committee the Speaker set out some basic principles. As he said “The exercise of intrusive powers … threatens members’ freedom to carry out their functions as elected representatives and the House’s power to control its own proceedings and precincts without outside interference.” So it is a very very important question that came to the committee.The committee was also asked to look at the release by the Parliamentary Service of information that it held concerning a journalist including phone email and swipe card access records. It is a statement of the obvious that the media is not one of the three branches of Government but they have long been regarded as the fourth estate because of the hugely important role that they play in informing the public about the actions of their elected representatives.Contrary to what some people may contend this inquiry was not about trying to relitigate the findings of the Henry investigation as to who leaked theKitteridge report nor was it about investigating a contempt of Parliament or assigning guilt or culpability to individuals. Its purpose was to establish the facts of how certain information was released by the Parliamentary Service and to use those findings to inform the next step of establishing guidelines to protect the ability of members as well as all those who use the parliamentary precincts—and I refer here particularly to the fourth estate. Thoseguidelines will be the subject of the next stage of our work and we hope that it will be finalised early next year.So it was not an inquiry into unlawfulness and the disclosure of the information. The question does not arise because the Privacy Act and the Official Information Act do not apply. This in fact contributed in my opinion to the lack of firm principles to be applied by the Parliamentary Service in disclosure of information. Hopefully in the next report we will be addressing precisely that point.Evidence was called from a number of people including representatives of the press gallery and others involved in seeking and disclosing the information held by the Parliamentary Service. At the end of the day I think it is fair to say that most of the background facts were probably relatively uncontested.The Henry inquiry was issued terms of reference by the heads of the Government Communications Security Bureau and the Department of the Prime Minister and Cabinet. It sought the information initially provided for in the terms of reference. The inquiry obtained the correct authorisation to access information of ministerial staff held by the Parliamentary Service on behalf of Ministerial Services. The General Manager of the Parliamentary Service was also satisfied that Ministers had—pre-emptively at least—given their consent for the information described in the terms of reference to be released. However he held back or demurred when the inquiry sought further email content not covered by the terms of reference and I think this is where things started to go wrong.An MP who was also a Minister had emails released by the Parliamentary Service to the inquiry without his permission. That member was asked for access to his swipe card records for he said a single day but extra records were then produced. Very seriously a journalist’s swipe card access records were handed over without her knowledge on the basis the Parliamentary Service said of a potential security breach when such a breach had not been alleged by the inquiry in its request. The journalist’s full phone records which had been generated purely incidentally by the Parliamentary Service were handed over. That was an error.In the report we conclude that the Henry inquiry frequently acted in what could be called an over-vigorous manner. In turn the Parliamentary Service failed to put in place procedures to deal with these issues. Both agencies failed to involve the Speaker who as the Minister responsible for the Parliamentary Service could have approached these somewhat novel and perhaps difficult questions with the correct constitutional weight.One issue that was identified was that the Parliamentary Service for historical reasons administers information systems and security matters for the entire parliamentary precincts. Obviously those in the precincts include not only members of Parliament and their staff but Ministers media employees of various agencies and contractors many of whom are not covered by parliamentary privilege.The former General Manager of the Parliamentary Service told us that his general principle was that information belonged to members and that in general they had the right to control access to their particular information. This principle may be a good starting-point but it does not catch the numerous complex situations when the Parliamentary Service is holding information that does not relate solely to members of Parliament including the facts that we were inquiring into here.Two matters flow from these findings. The committee did not seek to and obviously cannot dictate how the executive is organised. The principles of parliamentary privilege have little to say about the responsibilities a Minister owes to Cabinet and to the Prime Minister at whose pleasure he or she serves. Those are questions obviously for the executive and not for a parliamentary committee.The second important point is that the responsibility for running Parliament’s affairs ultimately resides with Parliament. In the evidence we heard about requests from the inquiry for information we heard that the inquiry received information that it was not entitled to.Although this is a disappointing set of events ultimately we need to work out where we are going to go to from here. As I said there is going to be the second report which picks up on the interim findings and hopefully we will be able to come up with a set of principles that will assist those dealing not only with members of Parliament but with media and the other people who work in these precincts. Importantly Parliamentary Service is the administrative gatekeeper to information held on behalf of MPs. Mr Thorn told us that this was his basic principle that material held on behalf of MPs would be disclosed only to those members.There is a lot of work required to be done before the committee can issue its second report. It hopes as I said to finalise the report early next year. I cannot speak for the committee but I think some clarification legislation is going to be required. Perhaps the time has come to consolidate all the relevant legislation in an Act of Parliament that will deal with the Parliamentary Service and parliamentary privilege. We have dealt recently with the remuneration of MPs. There is legislation dealing with the Clerk of the House the Officers of Parliament and so on. I think that people are entitled to find the law relating to this branch of Government in one statute rather than scattered throughout the statute book as it is at the moment. Perhaps the time has come also to take a fresh look at the Constitution Act which is structurally incoherent and a poor piece of legislation.Those are the sorts of issues that we will need to look at. We will not dwell on culpability. That was not the purpose of the inquiry; it was to find out what went wrong with a view to fixing things up in the future.