3.1                  This chapter deals with the CCTV Code of Practice and addresses the argument put by DPS that there can be no finding of improper interference with senators’ duties where:

DPS’ actions in using CCTV footage … was authorised under, and in accordance with, procedures approved by the Presiding Officers, and in circumstances where those procedures were applied for proper and lawful purposes.[1]

3.2                  The committee does not accept this argument for the reasons set out in this chapter. As has been noted, an action which is otherwise “lawful” or “authorised” may nonetheless be dealt with as a contempt if it amounts to improper interference in the terms discussed in chapter 1. Administrative action undertaken on behalf of the Parliament may not override the powers, privileges and immunities of the Houses and their members.

3.3                  Before turning to the argument, it is worth looking at the evolution of the current Code and the context in which it arose.

Development of the Code of Practice

3.4                  The CCTV security cameras in Parliament House operate in accordance with a Code of Practice. A background paper provided by DPS details its evolution. There have been three versions since cameras were installed in the House of Representatives and Senate corridors:

• CCTV Cameras in the House of Representatives and Senate Corridors: Protocols for the Management of Recorded Images (2003)
• Operating Policies and Procedures [OPP] no 10.18: CCTV Code of Practice (4 February 2009)
• Operating Policies and Procedures [OPP] no 10.18: CCTV Code of Practice (23 June 2011).[2]

3.5                  The 2003 protocols were the subject of extensive consultation. They arose from a proposal put to the Presiding Officers in late 2001 and a detailed submission in February 2002 “by the Security Controller, endorsed by the Usher of the Black Rod and the Serjeant-at-Arms”.[3] A further proposal was put to the Presiding Officers in October 2002 about the management of recorded images, and consultations were then undertaken with party whips and with the Joint House Committee. The submission notes:

Minutes from a meeting of 9 December 2002 show discussion of the proposed protocols, including concerns raised by parliamentarians in relation to the effect of the CCTV cameras on their capacity to carry out their duties. It appears from later submissions put to the Presiding Officers that the Joint House Committee ultimately agreed to the proposed protocols. [4]

3.6                  These consultations show that the protocols were intended in part to protect senators and members against improper interference with their duties. The Press Gallery was also consulted and its views taken into account to a degree in developing the final version of the protocols, agreed to by the Presiding Officers on 17 September 2003.

3.7                  By contrast, little consultation occurred on the subsequent versions of the code. The 2009 version “was developed by reference to relevant standards and guidelines (including the Australian Standard 4806.1-2006 (Closed Circuit Television)”. The committee notes, however, the statement in the submission that:

The draft OPP [Code] was endorsed by the SMB, which considered the draft OPP to be consistent with previous approved protocols and consultations.[5]

Committee comment

3.8                  The committee considers that this assessment, and the nature of the consultations referred to above, should be seen as guidance in the interpretation of the Code.

3.9                  The 2009 Code of Practice was revised in 2011, principally to reorder content, remove administrative procedures and reflect updates to the security system. In other regards they are substantially the same. [6]

Authorisation of the Code

3.10             The AGS advice describes the relevance of the Code of Practice, contending that:

…the Code can properly be regarded as expressing the circumstances in which the Presiding Officers have authorised dealings with CCTV footage captured in the precincts. Because of that, in our view, a court will be reluctant to characterise a dealing with CCTV footage which is duly authorised under the Code as an interference with parliamentary privilege or a contempt.[7]

3.11             The advice also suggests (in a footnote to paragraph 62) that a court might find “more generally that use of CCTV footage cannot support a finding of contempt if it is undertaken in accordance with the Code”. [emphasis added] The committee does not agree with this conclusion.

The parliamentary precincts

3.12             To understand the limits of the Presiding Officers’ power to authorise such dealings, it is necessary to understand the authority under which the CCTV system operates. That authority arises from the Presiding Officers’ powers to control and manage the parliamentary precincts. Control and management of the precincts is vested by the Houses of Parliament in their Presiding Officers by a long thread of tradition, Constitutional authority, resolution and legislation. This is a crucial point: the power belongs to the Houses and is exercised on their behalf by the Presiding Officers.

3.13             The Parliamentary Precincts Act 1988 confirms this position. Section 6(2) expressly provides that the Presiding Officers’ actions in this area exist “subject to any order of either House” and section 12 specifies that nothing in the Act is to be taken as derogating from the powers, privileges and immunities of each House and of their members and committees. Any activity undertaken under the authority of the Precincts Act – including, in this case, the installation and use of a CCTV security system, and endorsement and implementation of a Code of Practice for its use – is necessarily subject to the powers, privileges and immunities of the Parliament.

3.14             The Clerk points out that the AGS advice argues the opposite:

It elevates the alleged authorisation by the Code of Practice for CCTV of the particular use of footage by DPS above the question of the compatibility of the Code with the powers, privileges and immunities of the Houses and their members. It opines that authorisation of the Code by the Presiding Officers pursuant to the authority conferred by the Precincts Act is sufficient to dismiss any suggestion that an action argued to be duly authorised by the Code could reasonably be characterised … as “an interference with parliamentary privilege or a contempt”…[8]

3.15             The committee can see no basis for this proposition, which is contrary to well-established principles about the operation of laws with respect to the parliament. As the Clerk explains, there is no “mystique” about the parliamentary precincts: “parliamentary powers and immunities do not depend on the precincts for their operation [but] operate within the jurisdiction of the Commonwealth”, and the ordinary law of the land applies in the precincts.[9] The Precincts Act does not give the Presiding Officers the authority to set aside the powers of their Houses. Section 12 of the Act preserves the primacy of the powers, privileges and immunities of the Parliament.

3.16             A much earlier Privileges Committee expressed the view that security arrangements in Parliament House may be accepted provided they were not in conflict with the rights of senators.[10] The Senate is able to maintain this requirement in two ways: first, by the passage of Senate orders, and secondly by ensuring that the administration of security measures is undertaken with proper regard for its powers, privileges and immunities by exercising its contempt jurisdiction should it be required.

Conclusion

3.17             The committee dismisses any suggestion that it is beyond the power of the Senate to treat conduct involving the use of the parliamentary CCTV system as a contempt merely because the use of the system was – or was claimed to be – authorised under the CCTV Code of Conduct.

3.18             The committee agrees with the Clerk’s conclusion that:

The fact that an activity may be duly authorised under a power conferred by the Precincts Act is no guarantee that the same activity may not also be in conflict, potential or actual, with the powers, privileges and immunities of each House and of their members and committees.[11]

3.19             The Presiding Officers exercise their power to control and manage the parliamentary precincts on behalf of the Parliament; subject to orders of either House; and subject to the powers, privileges and immunities of the Houses and their members. Any activity undertaken under the authority of this power – including the use of a parliamentary security system and the implementation of a Code of Practice – is necessarily subject to the same limitations.

Authorisation under the Code

3.20             In its submission, DPS argues that:

…its actions in using the CCTV footage as evidence in disciplinary proceedings was authorised under, and in accordance with, procedures approved by the Presiding Offices, and in circumstances where those procedures were applied for proper and lawful purposes. [12]

3.21             Senator Faulkner disputes this view:

The only purposes of such cameras and the images they capture, are outlined in paragraph 5 of the Code. These purposes do not include tracking the movements of DPS staff members, or other citizens, properly and lawfully engaging with Senators. [13]

3.22             The Clerk’s advice describes different aspects of the Code of Practice, particularly paragraph 5, which lists the purposes for which CCTV may be used, and paragraph 6, which enumerates the key principles applying to the operation of the system:

The permitted uses of CCTV information include for public order and security purposes, investigation of criminal offences, provision of evidence for criminal and civil proceedings, management of security services, emergency responses, and compensation and insurance purposes…

…the uses that are specified do not refer to monitoring of parliamentary service employees for disciplinary purposes outside the permitted uses, let alone monitoring of senators’ offices and persons who provide information to senators.[14]

3.23             The relevant part of the code is as follows:

Statement of purpose

5 The CCTV system is intended to provide surveillance to areas in and around Parliamentary precincts (as established by the Parliamentary Precincts Act 1988). Subject to this Code of Practice, the CCTV system is only to be used for the following purposes:

(a) Assist in the control and management of the Parliamentary precincts (including major or special events and traffic management).

(b) Assist in the day-to-day management of security services including investigation of security incidents, pre-planning of security exercises, emergency evacuation exercises and monthly validation exercises.

(c) Prevent, deter and detect crime, criminal damage, vandalism and public disorder.

(d) Assist in identifying, apprehending and where appropriate, prosecuting offenders in relation to crime, criminal damage, vandalism and public disorder.

(e) Provide evidence upon which to take criminal and civil proceedings.

(f) Improve general security monitoring in the areas around the precincts, both in terms of personal security and security of premises.

(g) Improve operational response of Security Patrols in and around Parliament House.

(h) Assist emergency services in responding to incidents.

(i) Identify and investigate incidents or accidents that could result in a compensation or insurance claim against the Commonwealth.

(j) For any other purpose approved in writing by the Presiding Officers.

3.24             The AGS advice generally proceeds on the basis that DPS’ actions were authorised in accordance with the purpose described in paragraph 5(a) of the code, “to assist in the control and management of the parliamentary precincts”. [15]

3.25             It argues that paragraph 5(a) applies to the circumstances of the case, because DPS staff are “an integral part of the operational environment of the parliamentary precincts”. A court “is very likely to find that enforcing proper standards of behaviour on the part of DPS staff in relation to accessing Parliament House after work hours is something which assists in the control and management of the parliamentary precincts.” [16]

3.26             This is not an interpretation that is readily apparent from the words in the Code, particularly given that the other example under that paragraph relates to control of “major or special events and traffic management”.

3.27             Neither is it the clause explained, at estimates, as the purpose authorising the use of the system in this matter. That was paragraph 5(e) – providing evidence upon which to take civil proceedings. The AGS advice contends, however, that each of paragraphs 5(b) to (e) might authorise the use of the footage.[17]

3.28             The question which arises is: what criteria ought be applied in interpreting the Code?

Interpreting the purposes in the Code

3.29             The committee considers that the provisions in the Code’s statement of purpose ought be given their ordinary meaning. The original 2003 protocol, on which senators and members were consulted was clear. It provided that:

The installation of closed circuit television (CCTV) cameras in the Senate and House of Representatives wings of Parliament House and the capturing of images from them is solely for the purpose of assisting in the tracking of unauthorised entry to Parliament House and for the investigation of break-in, theft or damage within Parliament House.

3.30             It provided especially clear guidance on matters of accountability :

•        the only reason for accessing the recordings will be to determine whether those images assist in any investigation of unauthorised access to the building or to a Senator/Member’s suite, or of theft or damage to the building;

•        the Executive Leader (Security) cannot release recorded images or show those images to anybody else, without the approval of the Presiding Officers;

•        if the investigation of an incident leads to a requirement to access recorded images, the Presiding Officers will arrange, within seven days, for a report on the application of these protocols to be provided to the members of the Joint House Committee.

3.31             While the committee accepts that the newer versions of the Code have expanded the purposes to which the system may be applied, the focus remains on security, safety, public order and the investigation of related incidents. The committee considers that the rationale given in the AGS advice does not give sufficient regard to the security focus of the Code and does not take into account the context in which it was introduced and operates. The Security Management Board (SMB) assessed the 2009 version of the Code to be “consistent with previous approved protocols and consultations”, an assessment which carries no weight if the Code is taken to permit this extended operation. The committee considers that the SMB’s assessment should inform the interpretation of the Code.

3.32             The Clerk considers it:

…inconceivable that the use of CCTV information to identify persons providing information to senators or members could ever have been sanctioned as a permissible use...given the inherent threat such monitoring would pose to members’ and senators’ freedom to go about their business without obstruction. [18]

3.33             The committee concurs. The committee considers that the original protocols were designed to meet concerns such as these, as the consultations in the Joint House Committee demonstrate.

Conclusion

3.34             The committee is not persuaded that the use of the CCTV system in this matter was properly authorised under the Code of Practice. The committee considers that the words in the Code’s statement of purpose should be given their ordinary meaning. One of the principles stated in the Code is that “Senators, Members and other building occupants will be provided with clear and easily accessible information in relation to the CCTV system”. There is a corresponding accountability provision requiring publication of the Code. If the Code cannot be read and understood on its face these provisions are meaningless.

3.35             DPS provided evidence that the CCTV system had not been used to investigate staffing matters prior to this incident in February this year, although the department has used the system in relation to other staffing matters since that time. The committee had asked DPS to provide any advice it relied on in determining the system could be used for investigating internal staffing matters, but it provided no such advice. The committee considers that the use of the system for this new purpose amounts to a substantive policy change and that, if DPS considers that the Code should be extended to this purpose, it should propose to the Presiding Officers a policy change for their consideration. This would be consistent with the requirement in clause 9 of the Code, and place the decision about the matter with the Presiding Officers, on whose behalf the department administers that system.

Undertaken in accordance with the Code

3.36             A further question which arises is the question whether the provisions of the Code were followed. The committee considers that in some respects they were not. There are several breaches apparent in the use of the footage.

3.37             DPS told the estimates hearing that the use of the system was permissible under clause 5(e) of the Code – Provide evidence upon which to take criminal and civil proceedings. AGS advised that “In this case the proceeding which was, in a sense, on foot was the code of conduct investigation.”[19] The system was first accessed prior to the approval of even the preliminary code of conduct investigation, so it is hard to see how proceedings were “on foot” in any sense.

3.38             This initial access to the footage was approved without written authority, and without any written record being created – a breach of the recordkeeping and accountability requirement in clause 19. It is of concern to the committee that officers of DPS who do not have a security function can access footage, or information about what footage may show, without any record being created.

3.39             The “Authorisations Matrix” in the security-in-confidence version of the Code provides that senior security officers may give approval for other DPS employees to view images, provided that “the viewing of the images occurs as part of their duties and serves an identified purpose i.e. insurance or legal claims.” Accountability in the use of the system requires that written records are kept. The committee notes in this regard that DPS has not undertaken a review of compliance with the Code since its inception in 2009, notwithstanding the requirement that such review occur at least annually. [20]

3.40             In addition, the technical requirement in clause 33 that all printed images show the date of their printing appears not to have been complied with.

3.41             It also appears that the CCTV images were released to the employee without proper authority. Under clause 22 of the Code, the release of images to a member of the public or in a public forum may occur only with the approval of the President Officers, sought via the Usher of the Black Rod and the Serjeant-at-Arms. The reasons for approval are stated to include “in any other circumstances provided by law; or in relation to an insurance or legal claim”. This authority was not sought, in breach of the requirements of the Code. [21]

3.42             If the purpose relied on is to provide evidence for civil proceedings, arguably the Presiding Officers’ approval should be sought before footage is first accessed; and it is certainly required under the Code prior to the release of the images.

3.43             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.

3.44             Based on the above considerations the committee has concluded that the use of the CCTV system was not properly authorised under the Code of Practice. The committee’s observations may be useful in any review of the Code. It is convenient here to deal with some other matters relating to the Code.

Compliance reviews

3.45             Paragraph 8 of the Code of Practice provides that the DPS officer with chief responsibility for management of security, the Assistant Secretary, Building Services (or ASBS) “has executive responsibility for the overall management of the system, including managing adherence with the conditions laid down in this Code of Practice”.

3.46             The Privileges Committee asked for copies of each written report provided to the Security Management Board under section 46 of the 2011 Code of Practice, headed “Compliance Review”. The requirement is:

That compliance by DPS and AFP-UP staff will be subject to review. These reviews will be conducted as required and at least once per year. The ASBS will appoint an independent and suitably qualified person to undertake the review and provide a written report to the SMB.

3.47             DPS has confirmed that no compliance review had ever been undertaken. After the committee raised the matter, DPS engaged an independent auditor to undertake a review, which was expected to report in October 2014. The Acting Secretary provided the committee with a copy of the report on 28 November.

CCTV Policy Compliance Review

3.48             The report notes that the audit engagement did not consider “design of CCTV policies, guidelines and procedures” or “any matters in relation to the access and release of CCTV footage that are subject to a current review being conducted by the Privileges Committee”. [p.1] Notwithstanding those limitations, the review found instances of non-compliance of varying degrees in relation to 10 of the 40 paragraphs of the Code it examined. [p. 6] These included “significantly more” – that is, more than 100 more – saved images stored on the server than were listed in the Saved Images Register [p. 7] and multiple instances of incorrect or missing approval records for the release of images under the Code’s authorisation matrix, accounting for more than half of the 10 released images tested. [p. 8]

3.49             The committee considers these responses concerning.

Review of the Code

3.50             The committee also notes that the 2011 Code was scheduled for review in June 2014. Evidence was given at the estimates hearing in May that the review had not commenced. In its submission, in September 2014, DPS indicated that a new team established within its Security Branch would review the Code, although that team understandably currently has other priorities with significant changes to security arrangements occurring across Parliament House.

3.51             The committee notes that, in response to correspondence from the Chair, the President has indicated that he intends that the review of the Code will take into account the committee’s views, and involve broad consultation across the Parliament. The committee welcomes this commitment.

Camera settings

3.52             For completeness, it is noted that, in a visit to the operations room on 17 July 2014 committee members were shown the default position (or “home focus”) of the security camera outside Senator Faulkner’s office, which captured a complete view of the office door, and were also told that the camera and three others in proximity to and above the Senate entrance were recorded on a 24/7 basis, with recorded images retained for 8 weeks. Security officers demonstrated that the home focus of the camera and others like it could be reset so that it could continue to serve its security purpose while being less intrusive. After the visit, the Chair wrote to the President requesting that he and the Speaker consider instructing that the home focus for the camera outside Senator Faulkner’s office, and other cameras focussed and operating in a similar manner, be reset in the manner demonstrated to committee members. The President responded, indicating that the suggested adjustments had been made.

Interim approval arrangements

During the course of the inquiry, the committee also asked the President if the Presiding Officers would give consideration to reinstating “the substance of the original protocols” for access to and release of footage. The committee acknowledges that the Presiding Officers adopted the spirit of the committee’s request and agreed that all requests for the release of footage should be put to the Presiding Officers for approval. The committee thanks the Presiding Officers for doing so.

 

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