Rules, Procedures and the Rights of Parliament—Sixth Report of CommitteePublished on 20 June 2017 Hansard and Statements by Senator Joan Fraser (retired)
Hon. Joan Fraser:
Honourable senators, last night I told you I was trying to figure out how to be riveting. I haven’t figured it out.
This is almost certainly the last chance I’ll have to speak to this report, which is of some importance, colleagues. This is the Rules Committee’s report on a question of privilege raised twice by former colleague Senator Hervieux-Payette with regard to leaks of the Auditor General’s report on the audit of senators’ expenses two years ago now. She raised the question of privilege twice. Two different Speakers ruled there was a case of privilege, and the Rules Committee was charged with examining it.
Colleagues who were here at the time will recall that there were many leaks, particularly in the last 10 days or so leading up to the release of the Auditor General’s report, and that these leaks were difficult for many senators to deal with, in part because some of the leaks were inaccurate, some of them very inaccurate, and many of them disclosed names of senators — and the senators themselves were in the invidious position of not being able to respond, not having seen the Auditor General’s report, and in any case being bound by undertakings of confidentiality that had been signed with the Auditor General. So it was a very difficult situation.
Your Rules Committee examined, to the best extent we could, what had happened. The media reports were, with one significant exception, all based on unidentified sources. So we were not in a position to know directly who the sources had been, and it is a perilous path to start down to try and bring a journalist in before Parliament and say, “Tell us who your sources were.” So that was a bit of a difficulty.
In addition, Senator Hervieux-Payette herself, in appearance before the committee, asked us not to spend our time looking back but to try to look forward, to ascertain what needed to be done in the Senate in terms of our systems, our training and our policies, to not eliminate but at least to minimize the likelihood of leaks of this nature occurring again.
That is, in large measure, what this report does. There are a number of recommendations, but in general they boil down to recommending properly revised, reviewed and standardized policies, training and documentation concerning the management of confidential information, the education of us all — staff and senators alike — on how we are supposed to handle confidential information, and on the long-term damage that can be done to the Senate by unauthorized leaks, however attractive the prospect of doing such leak may seem at the time. It’s not, generally, a long-term, profitable way to go.
We recommend that the Internal Economy Committee, to whom we pass the buck, work very hard to establish the proper training materials, policies and procedures, and that Internal examine ways in which the role of corporate security might or might not be modified to facilitate investigations — where investigations are appropriate — in terms of leaks of confidential information.
We recommend that Internal study the question of sanctions for staff who engage in leaks, who break the rules about confidentiality. And we in the Rules Committee undertake to examine whether it is possible to have a range of appropriate sanctions for senators who engage in conduct that can be damaging to the Senate. We were made aware, for example, of the range of sanctions now available to the Ethics Committee, and there are models like that that would bear further examination.
We also made specific a recommendation about the Rules, arising from the fact that we discovered that an absolutely astonishing number of people don’t quite know what the phrase “in camera” means and the obligations that it puts on senators.
Your committee is recommending that in the appendix to the Rules that contains definitions, we insert the following the proposed definition — which may sound obvious to many people, including any of us, but it is useful sometimes to have things actually written down in the Rules. What we’re proposing is the following definition:
In camera means in private. Committees can meet in camera in certain circumstances, and the public is excluded from those meetings. The deliberations and any proceedings related to in camera meetings are confidential. Any unauthorized disclosure of in camera deliberations and proceedings could be treated as a contempt — a breach of parliamentary privilege. Appendix IV of the Rules outlines procedures for dealing with the unauthorized disclosure of confidential committee reports and other documents or proceedings. (Huis clos)”.
Appendix IV to which this refers, of course, already exists, colleagues. It’s there in the back of your Rules book.
Your committee commends that proposal for your favourable consideration.
I have not, so far, spoken about the actual Auditor General himself. Colleagues may recall that some days before the report was made public, the Auditor General was on television discussing the number of senators who would be named unfavourably in his report and even the number who he recommended be referred to the authorities, being the police. This, of course, caused a great stir.
He was the exception to the general finding that I mentioned earlier, that we could not know who was the source of leaks. In this case, it was the Auditor General himself appearing on national television. We concluded that this was, at the very least, a case of bad judgment on his part and that it was a breach of parliamentary privilege.
In connection with the Auditor General, we have recommended:
1. That the Senate develop procedures and policies that specify the proper scope of any audits conducted by the Auditor General in future.
2. That the Senate develop clear guidelines for any confidentiality agreements between senators and the Auditor General and any third party contractor, which should specify the obligations on third party contractors as to the requirements of confidentiality.
3. That the Senate ensure that the Auditor General and all other contractors be fully informed of the extent and scope of parliamentary privilege before they undertake the work for which they are contracted.
All of those recommendations go to matters where many senators had felt a significant degree of dissatisfaction, shall I say, with the way matters had proceeded when the Auditor General was doing the audit, in particular in relation to parliamentary privilege and the actual scope of the audit that the Senate had invited him to conduct.
So there you have it, colleagues. As I say, the recommendations are almost all about development of policies and procedures which are beyond the scope of the Rules Committee, but there is that one recommendation about the definition of “in camera” which we do recommend putting into the Rules of the Senate for the greater understanding of anyone who happens to need it.
The Hon. the Speaker: Senator Baker, a question?
Hon. George Baker: You said that the definition of “in camera” means “in private.”
Between in camera and in private, there’s a distinct difference. In camera, there’s usually a record kept; in private, there is no record kept. That’s the present custom of the Senate and the house as to the distinction between in camera and in private.
Perhaps it might be advisable to change the wording to omit the words “in private” after the definition of “in camera.” Would the honourable senator have a comment on that?
Senator Fraser: I have no problem, obviously, with the definition as it stands. We produced it working with the table officers, who did not send up warning flags, but it’s our job, of course, to the make final decisions on these matters.
In this particular definition, if colleagues wish to do so, I think we could just strike the first sentence which says, “In camera means in private.” And go straight to: “Committees can meet in camera in certain circumstances, and the public is excluded from those meetings.” I don’t think anything would be lost if colleagues wish to tackle the matter that way.
But I don’t think anything is lost either by keeping the original version, Senator Baker.
Senator Baker: As a supplementary, just as an illustration, our Legal and Constitutional Affairs Committee just finished a comprehensive study, and we cross-examined 39 judges. Of the 39 judges, the vast majority demanded that their questioning be in private, whereas 3 consented to it being in camera, and 2 consented to it being in public.
Senator Fraser: As I say, if honourable senators were willing to accept an amendment that I would propose to my own motion, I think that particular issue would be solved by simply deleting those five words: “in camera means in private.”
I have no objection to this. I don’t think it’s necessary, but I certainly don’t object to it.
The Speaker will advise me on proper procedure, as appropriate.
The Hon. the Speaker: Move the amendment, Senator Fraser.
Senator Fraser: Honourable senators, in amendment, I move that the motion for the adoption of this report be amended, in Recommendation 3, in the summary under pages 21 to 22, to remove from the definition of “in camera” the words “in camera means in private” that is found on page iii and also in the body of the report. I would propose that the change be made in both places.
I don’t have the written text, but if somebody would give me a piece of paper I could sign on.
The Hon. the Speaker: Senator Fraser, perhaps it would be wiser if we adjourn until tomorrow morning and you brought it back as a proper amendment in both official languages.
Hon. Joan Fraser: I trust honourable senators will recall that Senator Baker earlier had raised a comment, a query, a criticism, a suggestion about the proposal in the Rules Committee report to have a definition in the rules of what “in camera” means. He thought we should — and I think it’s a perfectly acceptable suggestion that — we should delete the phrase originally proposed, “in camera means in private.”
Motion in Amendment
Hon. Joan Fraser: Therefore, honourable senators, I move in amendment:
That the sixth report of the Standing Committee on Rules, Procedures and the Rights of Parliament be not now adopted, but that it be amended by deleting the words “in camera means in private.” wherever they appear in the report.
They actually appear, I believe, twice: in the summary of recommendations and then in the body of the recommendations as the report proceeds.