Police searching Theophanus office with agreement of the President of the Upper House

January 18, 2009 |

Even with the sub judice rule applying the Theophanus case throws up some interesting stories in the press.  The Age reports in Secret search of Theophanous’ office that the police secretly searched Theophanus’ office.  The opening paragraphs set the scene and highlight the issue:

POLICE detectives secretly searched the office of then cabinet minister Theo Theophanous while he was overseas on holiday last October, after upper house president Bob Smith granted them access — without the knowledge of Premier John Brumby.

Mr Smith yesterday defended his actions amid accusations that he not only betrayed Parliament and his friend, but did not follow due process.

It is very peculiar that a search was timed for when Theophanus was absent.

A key issue is the sovereignty of Parliament.  Parliamentarians are not above the law but there is a principle at stake in letting police enter a parliamentarians offices without a warrant.  The Damian Green affair in the UK caused massive ructions with the Speaker coming off second best.  The incidents are far from analogous, at least as far as the reason for the searches.  In the UK it looked like a leak enquiry gone mad. The reality is that oppositions get leaked material.  Most of the time the opposition are left alone. For good reason.  Leaked material, especially about Government mismanagement and corruption is a necessary way for the Opposition to do its job.

In the Theophanous case there is no leak, at least of documents.  But there is a common principle.  Parliamentarians need to know that their offices are not going to be searched by police or any other officers of the state without due process. It is an ancient but very important prerogative.  The right of Parliament to stand firm against the state’s officers was a major reason for Parliament’s rising against Charles I and the subsequent Civil War.  In the UK the Green affair caused outrage on both sides of the aisle. And so it should have.  Given the nature of the accusations at the time (and now charge) there is no issue of protecting sources or claiming some form of privilege (moral rather than legal) over files etc.  But a more formal process would have been better.

Getting the nod from the President is hardly the way to go. Why didn’t the police notify the Speaker and present him with a warrant and then search the office while Theophanous was in Victoria.  They didn’t need to give him prior warning.

Leave a Reply

Verified by MonsterInsights