Committee says federal police failed to warn senator about raid in time to allow privilege claim

This article is more than 1 year old

This article is more than 1 year old

The Australian federal police may have acted in contempt of parliament by failing to warn Labor senator Louise Pratt of a raid investigating leaks about Peter Dutton’s au pair decisions, a report has found.

The Senate privileges committee suggested in the report, which was tabled on Monday, that the failure to warn Pratt meant she did not have a proper opportunity to claim parliamentary privilege over seized documents, a possible “interference with the functioning of parliament”.

On 11 October, police executed a warrant to search the office of an Australian Border Force employee, investigating leaks about Dutton’s ministerial intervention in the case of two foreign au pairs.

Documents seized include emails from Pratt’s private account from 28 August to 6 September, relating to a Senate inquiry into Dutton’s handling of the au pair matters.

Labor immediately claimed parliamentary privilege over the documents, triggering a process that requires the documents be locked and not examined by police until the committee could consider the claim.

Pratt testified that the emails were correspondence with the ABF officer that related to her work on the Senate inquiry.

In its report, the Labor-chaired committee concluded that the privileges claim should be upheld, because the documents met the test of being retained or intended for use in the course of parliamentary proceedings. It recommended the documents be withheld from the AFP and provided to Pratt.

Despite evidence from the AFP that guidelines for treating potentially privileged material were followed, the committee expressed “concern as to how well the stated purposes … were met”.

The committee stated that the documents “not only identified a senator but a Senate committee and a specific inquiry” and yet the AFP commissioner, Andrew Colvin, “confidently asserted” in Senate estimates that the police did not believe the circumstances automatically gave rise to a claim of privilege.

In evidence on 22 October, Colvin also argued that parliamentary privilege would inform “every step of [the] investigation”.

“However, the senator named in the warrant was not advised that the warrant would be executed and was told after the fact and after another senator had made a claim of privilege,” the report said.

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“If the ABF officer had not called Senator Pratt it is difficult to see how a claim of privilege could have been made until after the contents of the seized material had been examined by the AFP.”

The committee said that, on the evidence before it, it was “difficult to assess” how the guidelines had worked to “ensure there was no improper interference with the functioning of parliament and its members” by providing a proper opportunity to raise claims of privilege.

The committee noted that in the case of the police raid to investigate leaks relating to the national broadband network, it did not find police in contempt of parliament because it accepted officers were working “in good faith and for a proper purpose”.

“Given the circumstances of the execution of the warrants on 11 October, the committee questions whether the same circumstances apply,” it said.

The committee announced it would call Colvin, the acting commissioner, Debbie Platz, and the acting commander, Joanne Cameron, to provide further evidence.

The report was tabled in the Senate by committee chair, Jacinta Collins, who said it would be considered on Thursday.