Thursday, 1 August 2019
Senators, I take this opportunity to make a couple of statements to the house about matters relating to the Senate. Firstly, the pass system in Parliament House, like other security and information systems, is managed by the Department of Parliamentary Services, under the authority of both Presiding Officers, on behalf of the parliament. Under conventional notions of the control of the parliamentary precincts, and under the Parliamentary Precincts Act 1988, the powers of the Presiding Officers to manage and control the precincts apply subject to the resolutions of either house.
This means that the administration of these security and information systems is 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.
In this regard, I endorse and restate advice given to the Senate Committee of Privileges by the former Clerk of the Senate that:
… proper consideration of the powers, privileges and immunities of the Houses and their members … is a primary consideration for any officer or employee of the parliamentary service. An understanding of the powers, privileges and immunities of the Houses and their members should underpin any policy that is formulated or any administrative action that is taken by a parliamentary department or its staff.
When the new CCTV code of practice was enacted in August last year, it was explicitly updated to recognise that the administration of that system was subject to the privileges of the houses and their members.
In particular, the code was updated to constrain access to stored images so that—where it appeared that a request for access to images might raise questions of privilege—the request required the approval of the Presiding Officers.
This constraint was intended to alleviate the risk that the system might be used in a manner which might interfere with the ability of senators and members to freely undertake their duties in this building.
The code was also amended to require that officers involved in the administration of the system undertake relevant training in privilege matters, which is now routinely provided by the two house departments.
The consultation I undertook prior to it being enacted also reflected the specific concerns raised by senators and reports of the Committee of Privileges regarding the protection of parliamentary privilege.
Ensuring this protection in managing these systems is my highest priority.
Senators have indicated a desire to see that similar protections apply to the use of the new swipe card Electronic Access Control System.
Although, I believe there is a minimal risk that the operation of the system will raise questions of privilege, it is nevertheless my view that the policy under which the system operates must contain the same constraints upon its use.
The new swipe card system has been activated in part of Parliament House, but currently only in a trial phase in the Senate, including my own office.
In my view, this operation requires an interim approval of policy to manage it, the information it collects and ensure issues of privilege are respected and protected.
In enacting this interim phase, no data from the system will be released without the approval of the Presiding Officers. This is a stricter standard than is in place under the revised CCTV policy.
If I approve any such release relating to the Senate or a senator, I commit to reporting it to the Appropriations, Staffing and Security Committee and also informing the Committee of Privileges.
As with all such matters, I will consider any such question of privilege in consultation with any senator affected, and with the advice of the Clerk.
To ensure the final iteration of the policy reflects the protections required, I will seek the approval for a small working group of senators to work jointly with members of the other place to finalise the operative provisions and rules of the policy and ensure that privilege the issues are comprehensively considered and that there is general acceptance of its features.
by leave—I move:
That the Senate take note of the President's statement.
As chair of the Senate Privileges Committee, I welcome your statement and thank you for providing the committee with a briefing on this matter at a meeting this morning. Since its inquiry into an incident involving the improper use of the parliament CCTV system in 2014, the committee has taken a close interest in the administration of security systems in Parliament House and the policies that underpin that administration. In its 160th report on that matter, the committee concluded that the problems with the administration of the code which became subject of the committee's inquiry arose principally through interpretations of the code which gave insufficient weight to the ordinary meaning of its language; interpretations which gave insufficient consideration to the code's security focus and the context in which it was introduced and operates; a disregard for the powers, privileges and immunities of the parliament which necessarily constrained administrative action under the code; and a failure to recognise that decisions about the application of privilege are matters for the parliament, not for parliamentary administration.
In that report on the CCTV matter, the committee called for the CCTV Code of Practice to be revised in a manner which restores the focus on matters of security and safety and emphasises accountability to presiding officers and the parliament, with appropriate regard for the primacy of the powers, privileges and immunities of the houses and their members. Further, after a number of helpful discussions with your predecessor and yourself, the committee formed the more general view that policies for the administration of security and information systems in Parliament House should specify that the administration of the system and the powers given to officers under such policies are subject to the powers, privileges and immunities of a house and their members and indicate that the houses may treat any improper interference with a house, a parliamentary committee or a member or a senator as a contempt.
The committee noted at paragraph 3.43 in its 160th report:
The accountability required in an instrument like the CCTV Code of Practice is not a bureaucratic or technical requirement. The purpose of those accountability requirements is to ensure that decisions are made by the right people, and that they are made in any informed way. The CCTV system is managed by DPS, under the authority of the Presiding Officers, but its operation is necessarily constrained by the powers and immunities of the Houses and their members. When a conflict arises—or appears to arise—between the exercise of an administrative function and any aspect of those powers and immunities, the committee considers that determination of that conflict must begin with accountability to the source of the power being exercised.
I appreciate, Mr President, that you have undertaken to apply these principles in the implementation of an interim policy for the EACS and in developing a final policy in conjunction with a working group of senators and members.
On behalf of the Privileges Committee, I also note and appreciate your willingness to provide reports on requests to access data retained by the EACS to both the Appropriations, Staffing and Security Committee and the Committee of Privileges at the same time as you approve such access. This will ensure that senators are informed of the uses and requests for the data maintained by the system. From the perspective of the opposition, I flag we have identified a number of concerns about the way in which the new swipe-card system was initiated and rolled out. The opposition will be making further comment about those matters when the Senate returns in September.