The Parliamentary Privilege questions enlivened by the series of raids on Senator Stephen Conroy’s office, the home of an adviser and the server maintained by the Department of Parliamentary Services, arising from the Australian Federal Police’s investigation into the leak of NBN documents brings to a head a series of questions raised across a number of legislatures in Australia, the UK and the US in the past twenty years.
On the matter being raised in the Senate yesterday, a background paper from the Clerk of the Senate, Dr Rosemary Laing was tabled. It indicates that she is not satisfied with the processes used by the Senate until now to deal with disputes over privilege between Senators and law enforcement.
Until now, the consequence of the case law in Australia has been to leave contests over Parliamentary Privilege in the course of an investigation by law enforcement as a dispute between the legislature and the executive, to be resolved by them without recourse to the courts.
This was the upshot of a Federal Court decision in Crane v Gething in 2000 by Justice Robert French (now Chief Justice of the High Court) in dealing with a dispute over documents seized in an AFP investigation of a Liberal Senator, Winston Crane.
In the Crane case, and a subsequent matter involving a One Nation Senator, Len Harris, during 2001-3, an independent assessor, Stephen Skehill SC, was engaged to go through the material seized by police and offer a view as to whether it was protected by Parliamentary privilege and/or beyond the scope of the warrant used to seize the material.
In the Crane case, he found only a small portion of the material seized (about 6%) should be handed over to the AFP, and made it available accordingly, while in the Harris case he found that none of the material seized fell within the warrant obtained by Queensland Police. In each case, the parties appeared to be satisfied with the resolution of this stage of the matter.
Following these cases, the Parliament and the AFP entered into a protocol in 2005 where procedures were laid out for what would happen when material was seized by the AFP and a claim of privilege is made, which largely involves sealing the documents; lodging them with a neutral third party (such as the Clerk); requiring the member to seek a ruling from a Court or the relevant house; and the claim being determined.
Dr Laing’s advice indicates that she is of the view that by outsourcing determination of such a claim to a third party in the past, the Senate has been abrogating its own responsibility in determining privilege, and that the process as performed in those instances (where Skehill consulted directly with party representatives, the Senators concerned and the AFP) was open to criticism that “arm’s length detachment was not able to be demonstrated, regardless of whether it had occurred.”
She also expresses concern that the reference to the independent assessor had not specifically provided that the task be performed in a “judicial manner”.
Laing’s advice indicates she shares the view of her predecessor as Clerk, Harry Evans, that Crane v Gething was wrongly decided in not having the courts determining the facts as regards claims of privilege, and that if the courts won’t determine it then it should still be performed as close to a judicial process as possible.
Laing proposes that the Senate take greater control of the process in determining any claims. At the very least the Privileges Committee should define the task to be undertaken, ensuring the criteria that underlies the determination reflects a “judicial manner”, and that it should make a recommendation to the Senate as to “the status and disposition of the documents.”
This would be akin to the procedure adopted by the NSW Legislative Council in the wake of the ICAC’s search and seizure of material held in the office of The Hon. Peter Breen MLC in 2003.
Laing suggests that if the Privileges Committee chooses to use a third party assessor, then the assessor should make its recommendation to the Committee, which in turn makes a recommendation to the Senate regarding status and disposition.
Parliamentary privilege as regards the protection of documents held by a Member or Senator derives from the 1689 Bill of Rights, which has since been adopted, adapted or essentially codified by legislatures in Australia, the UK and the US.
Article IX of the Bill of Rights directs that “freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This forms the basis of the applicable privilege in the UK and NSW Parliaments.
This privilege forms the basis of the widespread view that a speech in Parliament is immune from legal consequences, such as defamation.
The privilege is not an immunity from the criminal law; Members of Parliament have no explicit immunity from subpoenas, orders for discovery, search warrants or arrest. However, the privilege against proceedings in Parliament being questioned in courts is intended to be a protection from interference with their work as an MP.
Article IX was adopted in substance in the first Article of the US Constitution in what is known as the “speech or debate clause” [“[Senators and Representatives] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged … for any Speech or Debate in either House, they shall not be questioned in any other Place.”]
In 1987, in response to an almost wilfully perverse interpretation of Article IX by the NSW Supreme Court involving Senate committee evidence regarding Justice Lionel Murphy, the Australian Parliament passed the Parliamentary Privileges Act, definitively asserting the privilege in connection with court proceedings.
While there had been the occasional attempt at using “proceedings in parliament” in respect of third parties, the operation of the criminal law against Members of Parliament directly had been rare until the turn of the century, and then like a string of peak hour buses to the same destination, a slew of cases came along.
The protracted case involving Senator Crane took nearly four years to resolve, and to date, represents the settled case law in Australia on how claims to Parliamentary privilege in the course of a law enforcement investigation are to be settled. The Harris case took two years to resolve.
A case in the House of Commons in 2008 provides a fascinating analogy to the Conroy investigation.
Reacting to a series of leaks on crime and immigration, the Home Office set in train a Metropolitan Police investigation (“Operation Miser”), resulting in the arrest and questioning of Christopher Galley, a civil servant in the Home Office, and the subsequent arrest of Damian Green, an Opposition MP. and searches of his home and Parliamentary and constituency offices.
Interestingly, given the concerns about the use of the official secrets provisions of the Crimes Act in the Conroy matter, early consultation with the Crown Prosecution Service (CPS) in “Operation Miser” had discounted the proposition that the leaks amounted to breaches of the Official Secrets Act.
The subsequent use of the “misconduct in public office” offence as an alternative charge, with a lower threshold, later troubled the House of Commons committee on public administration:
It is important that this common law offence is not used to subvert the clearly expressed will of Parliament in limiting the scope of offences under the Official Secrets Act.
A review of Operation Miser, carried out by a senior police officer, Chief Constable Ian Johnston, in the wake of controversy about Green’s arrest and the search of his Parliamentary office, noted continuing attempts by the Home Office and police through the investigation to elevate the matter to one of “national security”.
Johnston said that Green was “intent on exposing government failings and was not leaking material injurious to national security.” He also called the particular leaks attributed to Galley as “amounting to ‘embarrassment matters’ for government”.
On eventually declining to prosecute either Green and Galley, the Director of Public Prosecutions noted:
The information contained in the documents was not secret information or information affecting national security: it did not relate to military, policing or intelligence matters. It did not expose anyone to a risk of injury or death. Nor, in many respects, was it highly confidential. Much of it was known to others outside the civil service, for example, in the security industry or the Labour Party or Parliament.
Compared to the Australian cases, the assertion and exercise of Parliamentary privilege in Green’s case was weak. The Speaker at the time would not allow the question of privilege to be addressed by the Commons until the criminal matters were resolved. Attempts by Green to raise the matter were either rebuffed by the Speaker or by a majority (Government) vote in the Commons.
When Green raised the question of privilege directly with police, an informal “sift” of Green’s documents was undertaken on a single day by two Commons’ officers who found only 20 documents protected by privilege.
By contrast, the process undertaken by Skehill in the Crane and Harris cases took many months, finding in Crane’s case that about 94% of the material seized should be denied to the AFP as it fell within privilege or outside the warrant, and that none of the material in Harris’s case fell within the warrant. The Legislative Council Privileges Commitee in Breen’s matter undertook a formal inquiry to determine his claim.
If the purpose of parliamentary privilege is to prevent interference with the work of Members of Parliament, then it needs to be recast to suit an era in which the role of a Parliament is more than just making laws and speeches.
Involving allegations of fraud, the Crane and Harris cases hardly lent themselves to a public acceptance of the necessity of parliamentary privilege. They were hardly the hills to die on to insist on a broader, more appropriate notion of privilege in the modern era.
The AFP raids in the Conroy matter also put an onus on the Senate to consider what Parliamentary privilege might mean for whistleblowers.
The 1689 Bill of Rights never anticipated a standing police force as an agent of the executive mounting searches and seizures. It never anticipated a Member of Parliament having a broader constituency role, including the routine reception of correspondence and representations as part of their duty.
It never anticipated the detailed scrutiny and accountability role of Parliament over the activities of government departments. And it certainly never anticipated that leaks and whistleblowing might form a critical aspect of the performance of that role.
While Parliamentary privilege presently confers a protection against seized material being used in a court, it does not prevent the identification of whistleblowers or leakers in an investigation, and the subsequent disclosure of their identity to their employer (deliberately or inadvertently) or publicly outside of a judicial or quasi-judicial proceeding.
Former Clerk of the Senate, Harry Evans, is worth quoting at length on this:
The apprehended evil is clearly seen when it is remembered that members of the legislature, in their capacity as tribunes of the people, both rely upon and protect the public they serve. They receive complaints from constituents about government departments and agencies, complaints which are often made on the basis that parliamentarians will investigate them without disclosing their sources. In the past some such complaints have been the means of exposing serious official wrongdoing. Both the members and their constituent informants would be constrained by the thought that executive agencies, whether indirectly through law enforcement bodies or directly through their own search and seizure powers which many of them possess, would be able to identify citizens who are complaining about them by reading members’ documents under cover of a search warrant. This would certainly chill parliamentary activities.
Similarly, the view of the NSW Legislative Council Privileges Committee in 2003 is worth noting:
[The Committee] is also mindful of the overriding purpose of Article 9, as expressed in advice provided to the Clerk of the Parliaments by Mr Walker, viz ‘to enhance deliberative democracy and responsible government by some measure of immunity granted to the parliamentary conduct of members, particularly against threats or reprisals from the Executive.’ Further, the Committee is mindful of the potentially ‘chilling effect’ on the flow of information to members in future which may result from the seizure of privileged documents in the course of Executive investigations – a flow of information on which members substantially depend to participate in the deliberative democracy and responsible government to which Mr Walker refers.
It’s little known that the articles of the 1689 Bill of Rights were framed as a “to-do list” of matters to be legislated as opposed to a statement of rights set in stone. Whether in their original form, or codification, they reflect a view of the role of a legislator that is now over 300 years old. Parliamentary privilege needs updating, and now.
The Australian Federal Police Investigation (“Crane”) (Senate, Australia, 1998-2002)
In 1998, the AFP commenced an investigation into allegations that Liberal Senator for WA, Winston Crane, had misused charter travel entitlements. A week before Christmas, search warrants for Crane’s offices and his rural home and Perth residence were obtained and executed.
As part of an interview at that time, the AFP apparently advised Crane that he may be entitled to make a claim for Parliamentary Privilege in respect of the documents seized.
Crane later told the Parliament that as a result of the DPP advising him that he had to make a claim within 18 working days over the Christmas and New Year period, he had no option but to seek a resolution through the Federal Court. The documents and hard drives over which a claim of privilege were made were removed to the Federal Court, and proceedings were commenced in early 1999.
On 18 February 2000, French J of the Federal Court ruled on a number of matters, including the privilege question. French took the view that the obtaining and exercise of the warrants, including the seizure of documents, was an administrative act – not a judicial one. Accordingly, the documents
The issue of a search warrant is an executive act in aid of an executive investigation. The investigation may lead to the initiation of criminal proceedings. It may clear the person concerned or yield insufficient evidence to justify the initiation of a prosecution. The issue of a search warrant itself does not commence any judicial proceeding … Whether privilege is to be asserted by the Senate must therefore be resolved between the investigating authorities and the parliament.
On 2 June 2000, the Full bench of the Federal Court dismissed Crane’s appeal, so the matter was in effect returned to the Senate to determine the claim for privilege. On 29 September, the documents were returned to the Senate.
On 5 December, the Senate agreed to a process by which an independent arbiter would review the documents seized by the AFP, and determine which, if any, were subject to a claim of Parliamentary privilege.
On 23 August 2001, the arbiter, Mr Stephen Skehill SC, wrote to the Senate advising that he had reviewed the documents – being 960 pages and two compact discs mirroring the contents of Senator Crane’s computers. Printing the contents of the discs resulted in Skehill reviewing 3,900 documents consisting of some 25,000 pages.
Skehill determined that 13,000 of those pages were protected by Parliamentary privilege, and that another 10,600 pages were beyond the scope of the AFP’s warrants, leaving some 1,400 pages that were not protected by Parliamentary Privilege and were within the scope of the warrant. These were delivered to the AFP.
Internal party divisions, which may have been behind the original allegations against him, saw Senator Crane demoted to fourth on the WA Liberals’ Senate ticket ahead of the 2001 election. Senator Crane was not re-elected, and his Senate term finished on 30 June 2002.
On 13 November 2002, the then Minister for Justice and Customs, Chris Ellison released a statement that the AFP had concluded its investigation and forwarded a brief to the Commonwealth DPP. Ellison stated that the CDPP had reviewed the brief of evidence and “concluded that there was insufficient evidence to support the allegations against Senator Crane.”
The Queensland Police Service Investigation (“Harris”) (Senate, Australia, 2001-2003)
On 27 November 2001 – that is two months after Skehill reported on his assessment of the Crane claim for privilege – Queensland Police executed a search warrant on One Nation Senator Len Harris’ Queensland office, and seized a number of computer discs. The warrant was executed as part of a Queensland Police Service (QPS) investigation into election reimbursement claims submitted by One Nation in relation to the 2001 Queensland state election.
On 30 November, the Senate Clerk wrote to the Queensland Police Commissioner to propose the material be sealed until a court or the Senate determined a claim for privilege over the material.
In February 2002, Senator Harris asked the Privileges Committee to determine if the QPS had been in contempt of the Senate in the way it had conducted the search. In June, the Committee determined that there had been no contempt, and that Senator Harris’ best course of action was to make a claim for privilege over what was seized. In late July, Senator Harris made a claim for Parliamentary privilege over all the material seized.
On 30 September, QPS wrote to the Senate asking that the claim be determined. On 4 December, Senator Harris gave notice that he would move that the Senate appoint an independent assessor, using similar terms as the notice appointing the assessor in the Crane investigation. However, he held off the motion pending further consideration by the Privileges Committee.
On 20 December, the Privileges Committee wrote to QPS and Senator Harris, asking if they would agree to an independent assessment of the documents with a view to identifying those documents not covered by Parliamentary Privilege and within the scope of the warrant. Each side agreed.
Stephen Skehill, the assessor in the Crane matter, was again engaged, and commenced his assessment in January 2003, completing it in August of that year.
Skehill offered his view that, even without looking into the documents contained on them, the seizure of the discs was beyond the scope of the QPS warrant. His reasoning was that the QPS could not reasonably formulate a suspicion that the discs contained the documents they thought might be on there without actually conducting a search of the disc.
However, he noted that as he had been engaged to review the documents, and in case he was incorrect on the fundamental question, he had reviewed 74,098 pages printed from the discs. He found that none of the documents fell within the scope of the QPS warrant, and that the question of Parliamentary privilege need not be considered.
At the conclusion of this matter, the Senate Privileges Committee, headed by Robert Ray, released a report outlining its concerns. Subsequently, the Parliament and the Australian Federal Police agreed on a protocol to be put into effect in cases where privilege might be asserted in search and seizures.
The NSW ICAC Investigation (“Breen”) (Legislative Council, New South Wales, 2003-4)
On 3 October 2003 – two months after Stephen Skehill made his report to the Senate Privileges Committee on the Harris claim for privilege – officers of the NSW Independent Commission Against Corruption executed a search warrant at the NSW Parliament House office of Peter Breen, a member of the Legislative Council. The ICAC was conducting an investigation into allegations of misuse of parliamentary entitlements by Mr Breen.
The ICAC Act has an express provision recognising Parliamentary privilege in respect of ICAC’s operations; a “belt and braces” amendment introduced by the Labor opposition when the Liberal Government introduced the ICAC Act in 1988.
The Council President wrote to the ICAC Commissioner expressing concern that the ICAC may have seized material that was covered by privilege, or otherwise unlawfully obtained. In response, a process was agreed whereby the computer material seized would be returned to be kept in the custody of the Clerk of the Legislative Council, while the ICAC would keep, but not view, a mirror copy of the computer and the seized papers.
The Legislative Council Privileges Committee then considered a number of matters related to ICAC’s search and seizure, finding that the ICAC had breached the Parliament’s immunities. Most of the questions were easily settled (such as whether any of the material seized amounted to “proceedings in Parliament” and whether ICAC was a “place out of Parliament”.
However, there was some contention as to whether the seizure of the material amounted to “impeaching or questioning”, or whether this would occur if and when ICAC made use of the material such as in an interview or hearing. That is, was the discovery process enough to invite privilege rather than any subsequent use?
On considering a range of advice, including that of the Legislative Council Clerk, John Evans, and noted barrister, Bret Walker SC, the Privileges Committee ruled that the seizure could and did amount to “impeaching or questioning”, saying that it was:
“.. also mindful of the overriding purpose of Article 9, as expressed in advice provided to the Clerk of the Parliaments by Mr Walker, viz ‘to enhance deliberative democracy and responsible government by some measure of immunity granted to the parliamentary conduct of members, particularly against threats or reprisals from the Executive.’ Further, the Committee is mindful of the potentially ‘chilling effect’ on the flow of information to members in future which may result from the seizure of privileged documents in the course of Executive investigations – a flow of information on which members substantially depend to participate in the deliberative democracy and responsible government to which Mr Walker refers.”
The Legislative Council, adopting a process similar to that recommended by its Privileges Committee, then moved to have Breen’s claim to privilege over certain documents determined. Breen inspected all the seized material in the view of the Clerk and an ICAC officer, and identified the material over which he claimed privilege. The remainder was handed over to the ICAC.
The ICAC disputed Breen’s claim, and in correspondence with the President of the Legislative Council, competing cases were made. The Council referred the dispute to the Privileges Committee for inquiry and report as to whether the disputed material amounted to “proceedings in Parliament”.
The Privileges Committee formulated a series of tests for determining this question, being:
(1) Were the documents brought into existence for the purposes of or incidental to the transacting of business in a House or a committee?
YES → falls within ‘proceedings in Parliament’.
NO → move to question 2.
(2) Have the documents been subsequently used for the purposes of or incidental to the transacting of business in a House or a committee?
YES → falls within ‘proceedings in Parliament’.
NO → move to question 3.
(3) Have the documents been retained for the purposes of or incidental to the transacting of business in a House or a committee?
YES → falls within ‘proceedings in Parliament’.
NO → does not fall within ‘proceedings in Parliament’.
Consequently, the Privileges Committee found that the none of the documents in question met the first test, some met the second test, but all met the third test, and thus were privileged. The Council adopted its recommendation.
The ICAC subsequently held public hearings using the residue of material available to it. While critical of Breen’s conduct regarding use of Parliamentary entitlements and resources in its subsequent report, no findings of corrupt conduct were made. The ICAC has since entered into a number of memoranda of understanding with the NSW Parliament regarding the procedure to be followed in the event of a search on Member’s premises, and resolution of questions of privilege.
The Department of Justice/FBI Investigation (“Jefferson”) (Known in the case law as “Rayburn House”) (House of Representatives, United States, 2006-08)
On 18 May 2006, the Department of Justice obtained a search warrant for the congressional office of Congressman William J. Jefferson. The investigation related to allegations of pay offs for assistance in obtaining foreign contracts.
As part of the search warrant, the officer seeking the authorisation set out a detailed process for addressing any protections afforded by the “Speech or Debate Clause” of the US Constitution. The Clause gives the Congress the equivalent of Parliamentary privilege for Congressional proceedings.
In essence, the process was that a Filter team of two DoJ attorneys and an FBI agent not attached to the investigation would determine whether material identified in the office fell within the warrant. This was to ensure that politically sensitive or material unrelated to the warrant was not made known to the investigation team.
Once material was determined to be within the warrant, the filter team would then assess it as to whether it was covered by the “Speech or Debate Clause”. If it was relevant and not covered by the Clause, the original would be given to the investigation team, and a copy to Jefferson’s lawyers.
If the Filter team believed that the material was both relevant and covered by the Clause, identifying particulars were to be recorded on a log and made available to Jefferson’s lawyers, but not to the investigation team. The Filter team would then seek a District Court ruling as to whether privilege covered the material unless Jefferson’s lawyers gave consent to use of the material.
On the night of 20 May – a Saturday – more than a dozen FBI agents entered and searched Jefferson’s office. Spending more than eighteen hours on the search, every document in the office was reviewed, and every computer and electronic device was copied. Two boxes of documents were seized, and copies of a computer hard drive and electronic media were taken.
This case is distinguished from its counterparts in Australia and the United Kingdom by the formal separation of powers between the Executive and the Congress. Notably, in this respect, Jefferson’s challenge to the constitutionality of the search and seizure was backed by the Bipartisan Legal Advisory Group, consisting of the then Republican Speaker, Majority Leader and Whip, and the Democratic Minority Leader and Whip, who challenged the search as “unconstitutional and unnecessary”.
Subsequent to the raid, the House Judiciary Committee held hearings on the matter under the rubric of “Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?” (tl;dr: Yes)
Jefferson immediately challenged the constitutionality of the search, losing the argument in the District Court. However, the Court of Appeals in 2007 upheld Jefferson’s claim that the compelled disclosure of privileged material breached the protections afforded by the Speech or Debate Clause:
this compelled disclosure clearly tends to disrupt the legislative process: exchanges between a Member of Congress and the Member’s staff or among Members of Congress on legislative matters may legitimately involve frank or embarrassing statements; the possibility of compelled disclosure may therefore chill the exchange of views with respect to legislative activity. This chill runs counter to the Clause’s purpose of protecting against disruption of the legislative process.
The effect of the judgment was to say that Jefferson should have been given the opportunity to claim privilege over whatever documents fell within that description prior to a search (the search procedures “denied the Congressman any opportunity to identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents.”); a right that would have to be extended in any future search and seizure of a legislator’s material.
The decision of the Court of Appeals in “Rayburn House” left the Congress in a similar position for future searches to the Australian Senate in the wake of Crane v Gething: while the existence of privilege was not in dispute, it was to be left to the legislature and the executive to come to agreement about how claims were to be determined during an investigation.
However, in Jefferson’s case, it was too late to unscramble the egg, and he was not entitled to the return of all his material, but rather was left to make a claim in the District Court for the documents he claimed were privileged. In 2009, Jefferson was convicted on 11 of the 16 counts with which he was eventually charged. On appeal, one count was reversed. He is serving a 13 year sentence.
The Metropolitan Police Investigation (“Green”) (House of Commons, United Kingdom, 2008-09)
This is perhaps the messiest, and most politically charged of the Parliamentary privilege cases in recent year. It also holds the closest parallels to the Conroy raids.
In October 2008, the Cabinet Office sought the assistance of Metropolitan Police in investigating a series of leaks of Home Office information between 2004 and 2008. While 31 “unauthorised disclosures”, occurring between 2004 and 2008, had been identified as of concern, focus was concentrated on a more limited number of leaks occurring between 2007 and 2008 where the conduit was the Conservative Party opposition.
The investigation was conducted by the Counter Terrorism Unit of the Met, into which Special Branch (long tasked with handling politically sensitive investigations) had been incorporated in 2006. Early advice was sought as to whether the leaks would constitute a breach of the Official Secrets Act. The view was that the leaks did not meet this threshold but might constitute the offence of misconduct in public office.
A civil servant in the Home Office, Christopher Galley, had been identified by the Home Office as the likely leaker. On 19 November 2008, Galley was arrested, and his home was searched. Among the items seized were five letters on House of Commons letterhead from a Conservative MP, Damian Green.
Among other sentiments, Green’s letters variously thanked Galley for “the extremely useful correspondence you have shown me”; “how very helpful you have been regarding the state of the [Immigration and Nationality Directorate]; “thank you for your latest bundle. As ever this is extremely useful”; and “I hope that you can keep [these communications] up in your new post.”
Email exchanges between Galley and Green retrieved from Galley’s computer indicated the planning and coordination of meetings.
On questioning Galley confirmed that he had leaked some material to Green. He was released on bail, and advised Green that he had been arrested and questioned, and had given Green up as the recipient of his leaks.
On 27 November 2008, officers of the Metropolitan Police arrested Green in Kent, and conducted a search of his home, his constituency office and his Parliamentary office in Portcullis House, on the Parliamentary Estate.
While search warrants had been obtained for the home and the constituency office, none had been obtained for the Parliament office, but was instead searched upon obtaining the permission of the Sergeant at Arms (being responsible for the Parliament and its buildings).
Police later explained the lack of a warrant on the basis that the applicable law required that a court grant a warrant only when there was a reasonable prospect permission would be denied. They argued that the fact permission was sought and granted demonstrated that this hurdle would not have been satisfied.
There is no clear record of the extent of the seizures across the various search sites, although it is clear that Green’s phones, Blackberry and House of Commons laptop were seized, and later evidence to a House of Commons Committee suggests that bank statements, telephone bills and other were among the papers taken by the police.
Contemporary press reports had the police at Green’s home going through Green’s barrister wife’s legal files and correspondence going back to their youth. Photographs indicate at least one large secure container being seized from Green’s constituency office. The extent of the search and seizure is worth considering in light of the subsequent assessment of what might have attracted privilege.
The incident had not escaped the attention of the Senate’s then Clerk, Harry Evans who later noted that:
In the voluminous press reports and commentary on the incident, there have been references to “breach of parliamentary privilege”, but seemingly no realisation that at least some of the material seized from the offices could be immune from seizure by virtue of parliamentary privilege, if the law from across the Atlantic, and the acceptance of the essence of that law by the executive government in Australia, is followed. The Clerk of the Senate wrote to the Clerk of the House of Commons to draw attention to this issue, but at the time of writing it had still not been mentioned in the continuing publicity about the matter.
In the days and weeks after Green’s arrest, the controversy surrounded what seemed a politically motivated investigation and the warrant-less search of the Parliament office. The Speaker had been advised in advance by the Sergeant-at-Arms of an imminent arrest and search, but maintained he had not been advised that it would be without a warrant. It seems that the Clerk of the Commons had not been involved in the pre-search consultations.
Despite many attempts in the weeks after his arrest, Mr Green was not able to have this matter referred to the House of Commons privileges committee. The Speaker had indicated he wanted the matter referred to a special committee made up of senior members of his choosing, but he insisted it could not meet until the criminal investigation into Green and Galley was complete. This was backed up by a majority vote of the Commons, consisting of the Government members.
The Speaker subsequently refused to act on the numerous attempts by Green to have his motion to refer the matter to the Privileges Committee take precedence over other business.
However, the Clerk of the Commons had advised the Metropolitan Police that Green might have a claim of privilege over documents seized. Similar to the procedures undertaken in the Senate, the police sealed the documents. Unlike the Senate’s practice of using an independent assessor, however, the Commons had the documents assessed by two Commons officers, the Speaker’s Assistant Counsel and the Clerk of the Journals.
These two officers, in the presence of Green’s solicitors, conducted a “sift” of the documents in the custody of the Metropolitan Police on a single day (22 January 2009) and identified 20 documents “closely related to Parliamentary proceedings”. Two further sifts of electronic records took place over two days in late March and early April, and identified another two documents. (By contrast, the Senate’s assessor took eight months in each of the cases before him.)
The test used by the officers was whether the material had been used in connection with a speech or a question in Parliament. In later evidence to a Commons Committee, one of the officers indicated how she had assessed one item:
coming back from the sift, I then checked to see whether there had been a question or a debate on that subject around the time and there had been nothing, so I assumed it was just background briefing not associated with parliamentary proceedings, which is why we did not take that up.
On 2 April 2009, following the last of these “sifts”, the Metropolitan Police wrapped up its brief of evidence for the Director of Public Prosecutions, and forwarded this to the CPS on 9 April. On 16 April, the DPP said that he would not be pressing charges on either Galley or Green for the offences of misconduct in public office, believing that there was no realistic prospect of a conviction. In doing so, the DPP noted:
In this case, I have concluded that there is little evidence of any additional damage caused by the leaks in question. The documents leaked undoubtedly touched on matters of legitimate public interest and Mr Green’s purpose in using the documents was apparently to hold the government to account. The extensive coverage of the issues by the national press, along with comments from Government and Opposition sources is evidence of this…
The information contained in the documents was not secret information or information affecting national security: it did not relate to military, policing or intelligence matters. It did not expose anyone to a risk of injury or death. Nor, in many respects, was it highly confidential. Much of it was known to others outside the civil service, for example, in the security industry or the Labour Party or Parliament. These examples are not an exhaustive list of the types of information that may be damaging for the purposes of the offence of misconduct in public office.
With the resolution of the criminal proceedings, a month later Speaker Martin was caught in the middle of controversy over the handling of media exposure of extravagant MPs expenses. Weakened by a perception that he had not defended the Parliament’s privileges in the Green matter, and facing criticism from Government and Opposition MPs, Martin became the first Speaker in over 300 years to resign the post.
Martin’s special committee on the Green matter and the question of privileges was abandoned, and instead the question referred to the Privileges Committee. While the focus of the inquiry was on the procedure followed in conducting a warrantless search on the Parliamentary Estate, some attention was paid to the question of privilege. The Committee reported in 2010.