Speaker’s Ruling – Question of Privilege – Leak of Agreement
Honourable senators, on April 9, 2019, Senator Plett raised a question of privilege concerning the leak of a confidential agreement that was the result of private negotiations among a number of senators in leadership positions. Several senators intervened in the debate on the matter at that time. Two days later, at Senator Plett’s request, there was further consideration of the question of privilege. These two occasions provided ample opportunity for senators to express their understanding about what had happened and to share their concerns about the course of events.
Two related issues can be discerned in this question of privilege: the release of the agreement to senators outside those present during the negotiations, and the release of the agreement to the media. The release to the media meant that the agreement quickly became available to the general public.
In listening to interventions on the question of privilege, it soon became apparent that certain matters related to the agreement – in particular how it would be communicated, if at all, and to whom – had not been understood in the same way by all senators present at the discussions. Senator Woo confirmed that he had shared the agreement with his colleagues in the Independent Senators Group, but stated that he did so in good faith. Senator Plett, on the other hand, had left the discussions with the understanding that the agreement was “strictly confidential and [was] not to be shared outside of the most immediate advisers of each leader”.
Honourable senators know that private discussions about matters of concern to the Senate are invaluable to the proper functioning of this place. These exchanges may involve the Government, representatives of the various caucuses, or individual senators. Ours is a very human institution, and these informal consultations help create shared understandings as to the expected course of Senate business. They also provide clarity that may otherwise be lacking.
Inevitably, however, such human relations sometimes give rise to misunderstandings. That seems to have been the case in the current situation. I would therefore encourage senators to express as fully as possible the conditions of the agreements they reach. Quite often this is best done in writing. When – as will sometimes happen – there is a misunderstanding, we must then focus on maintaining positive relationships, while trying to understand what happened and to resolve any problems in a collegial and productive way.
To turn to the specifics of the case at hand, the four criteria of rule 13-2(1) guide the Speaker when dealing with a question of privilege. All the criteria must be met for the matter to proceed to the next step. There is little doubt that this question of privilege was raised at the earliest opportunity, thereby meeting the first criterion.
The same conclusion does not, however, hold when we turn to the second criterion. This requires that the question of privilege “be a matter that directly concerns the privileges of the Senate, any of its committees or any Senator”. Privilege does not cover all activities in which senators engage. As explained by the Speaker of the other place on April 11, “the authority of the Speaker is limited to the internal affairs of the House, its own proceedings”. It does not cover issues such as caucus matters, and neither would it cover agreements among parliamentarians operating outside the ambit of parliamentary proceedings. I would also note the statement, at page 74 of the 14th edition of Odgers’ Australian Senate Practice, that privilege does not cover “the content of a document which has come into existence independently of proceedings in Parliament”. Such limits are in line with the point, made in the 2015 report of the Rules Committee on privilege, that stated:
In today’s age of Twitter and social media it is also worth reiterating accepted Canadian law that communications made outside of parliamentary proceedings, for example tweets or blog posts, are not protected by parliamentary privilege.
Given the requirement that all the criteria of rule 13-2(1) must be met, a prima facie question of privilege cannot be established in this case. I do, however, trust that colleagues will seek to address the evident misunderstanding that gave rise to this unfortunate situation. It may also be timely for all senators to reflect on the need for prudence when using the powerful tools that social media place at our disposal, and which may have accelerated the course of events leading to the question of privilege. While these tools help us highlight the important work of the Senate, we should not ignore their potential pitfalls.