In a submission to the Parliamentary Joint Committee on Intelligence and Security, which is currently inquiring into the bill — formally known as the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 — Senator Ryan said parts of the bill clashed with ongoing work to secure privilege rules against executive investigative powers.
Both Morrison and Dutton have put pressure on the PJCIS to complete their inquiry into the bill — the last hearing is scheduled for 4 December — so that Parliament can pass the bill before it rises for the year on 6 December.
"Although the bill does not deal with privilege directly, it sits in tension with work being undertaken across the Parliament to properly secure privilege against the exercise of executive investigative powers," Senator Ryan said in his submission.
"In the Commonwealth jurisdiction, the protection of parliamentary material from seizure under search warrant is governed by an MOU [memorandum of understanding] between the Parliament and the Executive signed in 2005," Senator Ryan wrote.
The scope of that protection was designed to ensure that AFP officers executed search warrants in a way that did not amount to a contempt of Parliament.
After the AFP raid to find out the origin of an alleged leak from NBN Co during the 2016 election campaign, the Senate Privileges Committee had found that documents seized were protected by privilege and should be withheld from the investigation, Senator Ryan said.
The Committee had said that when information, which might attract privilege, was seized or accessed, procedures should be developed to allow claims of privilege to be raised before the seized material was examined.
Senator Ryan said that the Senate had accepted the panel's recommendation that processes should be developed which achieved the objectives cited above.
He said the process was now ongoing and the panel had told him and the Speaker that the use of powers to covertly seize metadata — for which a warrant is not needed — could erode the protections of parliamentary privilege.
"A particular concern to the Senate committee in relation to the covert use of such powers was the question how claims of parliamentary privilege can be raised and resolved when no-one with standing to make a claim is aware that such information is being accessed," Senator Ryan wrote. "These concerns may be exacerbated by the provisions of the Assistance and Access Bill 2018."
He said suitable changes to the bill could be added through amendments if there was no time to examine them and stick to the timetable that the government had laid down for passage of the bill.
Senator Ryan said he had written to Attorney-General Christian Porter and Dutton about the matter. "I note that there is a precedent for the committee to work with the ministers responsible to secure the proper protection of privileged material, as was done in relation to the Foreign Influence Transparency Scheme Bill," he said.