Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I present the 160th report of the Committee of Privileges on the use of CCTV material in Parliament House. I also table a volume of documents.

Ordered that the report be printed.

Given the hour, I seek leave to incorporate my tabling statement in Hansard.

Leave granted.

The statement read as follows—

In February this year, CCTV images from the parliamentary security system were used by the Department of Parliamentary Services—DPS—in investigating a staffing matter. These included images showing a DPS employee placing an envelope under the door of Senator Faulkner's office at Parliament House.

Senator Faulkner asked questions about the operation of the CCTV system during estimates hearings in May, raising two concerns:

First—that the use of the CCTV system to investigate a staffing matter breaches the CCTV Code of Practice.

And Second—that DPS was improperly monitoring interactions between its employees and his office.

The CCTV system is governed by a Code of Practice, which lists the purposes for which it may be used. The Secretary of DPS, Ms Carol Mills, told the estimates hearing that "there may have been an inadvertent … breach of the statement of purpose".

After being told that breach "may involve" footage of someone providing information to him, Senator Faulkner raised the matter with the President as a matter of privilege. He said "It is a serious breach that a senator in this parliament is being spied on in that way as they go about the proper conduct of their duties.

Two matters were referred to the Privileges Committee.

The chief concern was that use of the CCTV system to identify persons providing information to senators may interfere with the performance of senators' duties. If people apprehend that their interactions with senators are monitored, they may be deterred from providing such information, limiting the information available to senators and constraining their capacity to put matters before parliamentary committees.

That concern is heightened in this case, because DPS administers the CCTV system. Unauthorised use of the CCTV system could impede the Finance and Public Administration Committee's oversight of DPS if people are deterred from providing information relevant to that oversight. This risk can only be avoided if the use of the system is strictly controlled. The allegation that it has been used for unauthorised purposes is therefore a serious one.

The other concern raised was the question whether disciplinary action was taken against a person in connection with her providing information to a senator: inflicting any penalty upon a person in connection with their providing information to a senator may be dealt with as a contempt, if the information is sufficiently connected to parliamentary business.

Both of these matters may be dealt with by the Senate as contempts.

The main evidence before the committee is a submission from DPS and additional documents provided on 11 November.

Before turning to the substance of those documents, I must deal with a serious matter concerning the evidence given by the DPS Secretary to the estimates hearing on 26 May.

According to the submission, the Secretary was informed on 27 February that CCTV images showed a DPS employee placing a "brown envelope" under Senator's Faulkner's office door. The entire submission is founded on the Secretary's response to that discovery. This was represented as a "conscious decision" about how to proceed and an instruction as to the use of those images.

Yet, the Secretary told the estimates hearing—three months later—that the incident had only been brought to her attention as questions were asked during the hearing. When asked directly whether the matter involved a person or people providing information to Senator Faulkner, Ms Mills replied "That is what I am looking into. That is the issue that was brought to my attention today …"

The submission and additional documents cast considerable doubt upon the evidence given by the Secretary. This is dealt with in the report under the heading Contradictory Evidence, which I intend to draw to the attention of the Finance and Public Administration Legislation Committee. The Privileges Committee considers that misleading the legislation committee in these circumstances is a serious breach of accountability and probity.

Let me turn to the main arguments put forward.

A theme repeated throughout the submission is that DPS officers could not have known that the interaction caught on camera related to parliamentary business, and so could not be said to be obstructing it. Whatever the merits of that case, the additional documents provided on 11 November entirely dispose of this line of argument.

When the discovery of the footage was communicated to DPS officers, they immediately associated the envelope with Senator Faulkner's participation in Senate estimates, and with DPS' appearances there. This email exchange directly contradicts conclusions DPS is asking the committee to accept and undermines the factual basis of legal advice it had also provided.

DPS also argues that the disciplinary proceedings can't have been initiated as a result of the provision of information to Senator Faulkner—the timing doesn't allow it. The committee accepts this argument.

However the email exchange I referred to demonstrates the risk in allowing the use of CCTV images in these circumstances. The officers involved drew adverse inferences from the discovery of the footage and communicated these to the Secretary. It is impossible to establish whether that information influenced those officers' decisions—or the Secretary's decisions—in the subsequent stages of the investigation or a series of later employment decisions affecting the employee.

If any action was taken against the employee in connection with the provision of this information to Senator Faulkner, it would be open to the Senate to deal with that action as a contempt.

The submission argues that Senator Faulkner has not been "hampered or obstructed" in collecting information, citing as evidence the fact that the employee apparently returned to him with concerns about the investigation.

The fact that the employee found another way to communicate with Senator Faulkner does not deal with the broader question whether other people may be deterred from providing information to senators. This incident has similarities to allegations aired in the media 3 years ago that security cameras were used to try to identify whistleblowers providing information to Senator Faulkner. Records indicate that the CCTV system has now been used for other purposes involving staffing matters, which may add further to people's apprehension about being monitored.

Such apprehensions may discourage people from providing information to senators, limiting the information available to them and affecting their committee work—an improper interference.

DPS submits that there can be no finding of improper interference where its actions in using CCTV footage was authorised under, and in accordance with the Code of Practice.

The argument is inconsistent with well-established principles about the powers, privileges and immunities of the parliament, and the manner in which they constrain administrative action. An act which is otherwise "lawful" or "proper" or "authorised" may nevertheless amount to a contempt.

The CCTV system in Parliament House, like other security and information systems, is managed by DPS, under the authority of the Presiding Officers, on behalf of the Parliament. Its authority is clearly constrained by the powers, privileges and immunities of the Houses and their members. In any question of parliamentary administration, proper regard needs to be given to these matters.

The committee has particular concerns about the accountability in the use of the system, particularly accountability to the Presiding Officers and to the Parliament itself. These concerns are detailed in chapters 3 and 4 of the report.

The committee also has concerns arising from the disregard for the powers, privileges and immunities of the parliament which has been on display during the investigation of this matter. Senior officers in the parliamentary service should have a well-developed understanding both of the operations of the parliament and the limitations of their administrative authority. in particular they must give primacy to parliamentary powers in balancing the competing priorities to which they may need to have regard.

The committee has concluded that the use of CCTV images in this matter occurred without proper authorisation and in circumstances in which people may be understandably apprehensive about being monitored in similar circumstances in the future.

The committee considers that there are serious difficulties with the interpretation of the existing Code of Practice, and gaps in accountability in the use of the CCTV system.

The committee is required to consider what action is necessary to protect the Senate, its committees and senators against acts which might obstruct them in the performance of their functions.

The committee does not consider it necessary, however, to contemplate a finding of contempt. In this case, corrective action lies within the power of the Presiding Officers.

The committee recommends that the Presiding Officers instigate the development of a new Code of Practice which restores the focus on matters of security and safety; and emphasises accountability to the Presiding Officers and the Parliament, with appropriate regard for the primacy of the powers, and immunities of the Houses and their members.

That committee in particular recommends that the review process involve consultations with member and senators and other building occupants, and give consideration to the matters dealt with in this report.

The committee also recommends that senior officers in DPS involved in the administration of the CCTV system and other systems managed on behalf of the Parliament undertake some structured training to acquaint themselves with the principles of privilege.

Finally, the committee recommends that the attention of the Finance and Public Administration Legislation Committee be drawn to the matters set out under the heading Contradictory evidence, relating to the misleading evidence given at its estimates hearing on 26 May 2014.

by leave—in addition to the comments I have incorporated, I would like to express the thanks of the committee for the work undertaken by the Deputy Clerk in preparing the report, and my own personal thanks go to the other members of the committee. This has been a difficult and very important matter for the Senate and in relation to accountability in this parliament. There are some very serious issues dealt with in the report about maintaining parliamentary privilege and maintaining the privilege that we all often take for granted within this house.

Mr President, I also need to take this opportunity to thank you and Madam Speaker for the responses that you have made to recommendations from the committee along the way. Some very important issues have occurred during the process of this investigation. Firstly, you have reinstated the essence of the original code that we established to manage the use of CCTV footage within the parliament and, secondly, you have agreed to ensure that the cameras in this place are not focussed directly on the operations of members and senators within the Senate. These are two very important issues and we thank you for addressing them during the course of our inquiry. The third issue that I should highlight is the recommendation that we have made, which you have already instituted in part, which is that we completely review the code and how it operates, and the accountability within that code. Unfortunately there are some serious indications that the accountability of the code has not been operating as it should and we will address these issues in some further detail in the new year.

The final matter is a reference back to the Finance and Public Administration Committee with respect to some misleading evidence put before it. I bring that to the attention of Senator Bernardi, as chair of the Finance and Public Administration Committee, for them to review and consider. (Time expired)

John Faulkner (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I thank the Privileges Committee—

Stephen Parry (President) Share this | Link to this | Hansard source

Senator Faulkner, you will need to seek leave as there is no motion before the chair.

John Faulkner (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I will seek leave to speak on the tabling of the Privileges Committee report.

Stephen Parry (President) Share this | Link to this | Hansard source

Is leave granted?

John Faulkner (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I can seek leave for one minute. If I am unable to have leave of the Senate I will seek leave to incorporate my remarks into Hansard. Of course I have not had an opportunity to show those remarks to senators in the chamber. Senators would be aware that this issue related directly to me, and I at a minimum would seek the leave of the Senate to incorporate remarks into the Hansard.

Leave granted.

The speech read as follows—

I thank the Privileges Committee for its exhaustive inquiry and unanimous report on this matter.

I note the committee's strong recommendations and look forward to their early implementation.

Of course I would not expect the Privileges Committee to recommend a finding of contempt on this matter.

In fact, I appreciate that the Privileges Committee has always had a focus on taking corrective action, and this Report is very consistent with that longstanding tradition.

Mr President, in February 2014, CCTV images of a DPS employee placing an envelope under the door of my parliamentary office were used by DPS officials in an investigation of a staff management issue.

My own involvement in this matter began at the Budget Estimates hearing into DPS on the 26 May 2014.

It only became clear to me then that DPS officials had used the CCTV system in contravention of its Code of Practice.

The only purposes for the use of such cameras and the images they capture are outlined in the Code. These purposes do not include tracking or monitoring the movements of DPS staff members, or other citizens, properly and lawfully engaging with Senators.

And in my view, the use of CCTV footage and images as outlined in this Report — for purposes outside the Code of Practice — does represent an egregious improper interference with the free performance of my duties as a senator.

The Privileges Committee's findings in this Report of the Department of Parliamentary Services performance, and in particular the performance of its Secretary, is devastating.

In fact, the Committee finds that the DPS Secretary has given clearly contradictory evidence and has misled the Senate Finance and Public Administration Legislation Committee.

Let me quote from Chapter 2 of the Report

Under the heading "Contradictory evidence" on page 9 this Report states:

2.2 It is necessary first, however, to deal with contradictions between the evidence the department provided at the May estimates hearing, its submission and additional documents provided on 11 November 2014.

2.3 The DPS Secretary told the estimates hearing in May 2014 that the matter now referred to the Privileges Committee had only come to her attention on the day of that hearing, on the basis of inquiries she made after questions were asked of the Senate department.

So, Mr President, let's be very clear about this, the Secretary of DPS gave evidence in Senate Estimates that she had only just become aware of the issue that same day. "That is what I am looking into. That is the issue that was brought to my attention today..."

But documents provided to the Privileges Committee told a different story.

The Privileges Committee Report notes:

2.6 The DPS submission contradicted the Secretary's evidence at estimates. It stated that the discovery of footage showing the employee placing an envelope under a senator's office door was communicated to the Secretary on 27 February, three months prior to the hearing.

The Privileges Committee Report goes on to state:

2.9 Despite her evidence to the estimates hearing that the matters now referred to the Privileges Committee first came to her attention during those hearings, these documents demonstrate that the Secretary was made aware of all aspects of the incident as it transpired. In particular, the documents show:

•   that when Ms Mills approved a preliminary code of conduct investigation on 25 February she also approved the release of still photographs from security cameras

•   that the request which Ms Mills approved on 25 February informed her that the CCTV system had already been used to gather information on the matter

•   that the discovery of footage showing the employee placing an envelope under Senator Faulkner's office door was communicated to Ms Mills on 27 February.

The Report goes on. I quote the next paragraph:

2.10 The Secretary's response is contained in an email to one of her staff.•

You may be aware that contact by individuals with parliamentarians is not something that we monitor in order to provide privacy to them in the conduct of their business. Happy to discuss.

And then more:

2.11 The submission and additional documents cast considerable doubt upon the evidence given by the Secretary. The committee has not been able to reconcile the evidence given at the estimates hearing with the submission and documents which DPS has subsequently provided, and considers that the Finance and Public Administration Legislation Committee was misled about the Secretary's knowledge of the events that led to this inquiry.

I am pleased the Privileges Committee has chosen to publish the relevant documents so that they are now available to the Finance and Public Administration Legislation Committee to consider.

But it doesn't end there.

Paragraph 2.13 of the Privileges Committee report highlights just how serious the problems are:

2.13 There should be no doubt, however, that the committee considers the misleading of the legislation committee in these circumstances to be a serious breach of accountability and probity.

I repeat that — "a serious breach of accountability and probity"

Paragraph 2.52 of the Report notes the Committee's concern about the DPS's attitude to using Parliament House's CCTV system, and states:

The fact that DPS seems to consider that there might be circumstances in which the unauthorised surveillance of a parliamentarians' office might not be contrary to privilege is of concern to the committee.

And in relation to whether the use of CCTV footage of a staff member leaving an envelope under my door in Parliament House was according to the rules — an issue I have raised in a very forthright way in Estimates — the committee concludes in Chapter 3, at paragraph 3.44 of its Report:

...that the use of the CCTV system was not properly authorised under the Code of Practice.

The Report from the Privileges Committee identifies misleading and contradictory evidence provided by the Secretary of DPS to a Senate Committee.

It also shines a light on the flagrant misuse of CCTV cameras in Parliament House.

Let me reinforce my longstanding view that we should accept nothing other than the highest of standards of public administration from any Parliamentary Department.

A parliamentary department should be an exemplar. But DPS is not.

The findings of this damning report, that the Secretary:

•   has misled Senate Committees, and

•   has given contradictory evidence, and

•   has overseen the unauthorised use of CCTV,

reinforces my view — publicly stated — that DPS is the worst run government department in the Commonwealth of Australia.

I commend this report.

I sincerely hope it is read and acted upon.