Chapter 2 - Parliamentary Privilege: immunities and powers of the Senate

Power to conduct inquiries

Each House of the Parliament has the power to require the attendance of persons and production of documents and to take evidence under oath. This power supports one of the major functions of the Houses: that of inquiring into matters of concern as a necessary preliminary to debating those matters and legislating in respect of them. The power has long been regarded as essential for a legislature. The power is, in the last resort, dependent upon the power to punish contempts, in so far as that penal power is the means by which the Houses may enforce the attendance of witnesses, the answering of questions and the production of documents.

The power to conduct inquiries by compelling the attendance of witnesses, the giving of evidence and the production of documents is conferred by section 49 of the Constitution.

Inquiry powers also have another possible source. In the United States it was found that these powers are inherent in the legislature (see McGrain v Daugherty 1927 273 US 135).

Something of this inherent powers doctrine was adopted in a state. The New South Wales Court of Appeal in Egan v Willis and Cahill 1996 40 NSWLR 650 found that although the New South Wales Parliament lacks an equivalent of section 49 of the Constitution, the Legislative Council possesses an inherent power to require the production of documents and to impose sanctions on a minister in the event of non-compliance. The Council had made an order for documents and suspended the Treasurer from the Council when he failed to produce the required documents. The High Court rejected an appeal against this judgment, while not indicating whether the Council possesses full inquiry powers: Egan v Willis and Cahill 1998 158 ALR 527. The Court of Appeal subsequently found that claims of legal professional privilege and of public interest immunity could not protect the executive government against the Council’s power: Egan v Chadwick and others 1999 46 NSWLR 563. The Council does not possess a general power to punish contempts. The limitation of the power of the Council in respect of documents recording the deliberations of cabinet, found by the Court of Appeal, would not apply to the Commonwealth Houses in the presence of the constitutional bases of their powers.

The power to conduct inquiries is usually not exercised by the Houses themselves, but is delegated to committees by giving those committees the power to require the attendance of witnesses and the production of documents. A major concomitant of that delegation is that proceedings in parliamentary committees are proceedings in Parliament, and the immunity from impeachment or question in the courts attaches to words uttered in committee proceedings by members and witnesses and to the production of documents to committees, as declared by the 1987 Act.

It is not determined whether the Houses can delegate their power to conduct inquiries to a person other than their own members, although there are some old precedents in Britain for such a delegation (see also under Preparation and publication of documents, above; see also Chapter 20, Relations with the Judiciary, under The second Senate committee).

The power may be confined to inquiries into subjects in respect of which the Commonwealth Parliament has the power to legislate. There is judicial authority for the proposition that the Commonwealth and its agencies may not compel the giving of evidence and the production of documents except in respect of subjects within the Commonwealth’s legislative competence (Attorney-General for the Commonwealth v Colonial Sugar Refinery Co Ltd 1912 15 CLR 182, 1913 17 CLR 644; Lockwood v the Commonwealth 1954 90 CLR 177 at 182-3), and, if the matter were litigated, the High Court might well hold that this limitation applies to the inquiry powers of Senate committees. The United States Supreme Court so held in relation to the Congress (see Quinn v US 1955 349 US 155). This would not mean that an inquiry would have to be linked with any particular legislation (cf Eastland v US Servicemen’s Fund 1975 421 US 491).

Although the question has not been adjudicated, there is probably an implicit limitation on the power of the Houses to summon witnesses in relation to members of the other House or of a house of a state or territory legislature. Standing order 178 provides that if the attendance of a member or officer of the House of Representatives is required by the Senate or a Senate committee a message shall be sent to the House requesting that the House give leave for the member or the officer to attend. This standing order reflects a rule of courtesy and comity between the Houses, and as such it ought properly to be observed in relation to houses of state and territory parliaments. It may be that these limitations on the power to summon witnesses in relation to other houses have the force of law, and may extend to officers of state and territory governments. The basis of such a legal doctrine in relation to the states would be High Court judgments to the effect that the Commonwealth may not impede the essential functioning of the states. (For an examination by the High Court of what has come to be known as the “Melbourne Corporation doctrine”, that the Commonwealth may not interfere with the governmental functions of states, see Austin v Commonwealth 2003 195 ALR 321.)

The Select Committee on the Australian Loan Council, in its interim report in March 1993 (PP 78/1993), accepted advice by the Clerk of the Senate that it could not summon as witnesses members of the House of Representatives and of the houses of state parliaments. The committee recommended that the Senate ask the various houses to require their members to attend and give evidence before the committee (the advice also indicated that the houses have the power so to compel their members, but that question also has not been adjudicated). The Senate passed a resolution and requests were sent to the various houses accordingly. The various houses declined to compel their members to attend. (5/10/1993, J.566; 7/10/1993, J.608; 20/10/1993, J.657; 21/10/1993, J.683; see also Chapter 17, Witnesses) Similar advice was provided to, and accepted by, the Select Committee on Unresolved Whistleblower Cases (Report, PP 344/1995, pp 138-40). For an instruction by the Senate to a committee to invite the Prime Minister and another minister to give evidence, see 9/3/1995, J.3063-4.

The Select Committee on the Victorian Casino Inquiry presented a report on 5 December 1996 indicating that it had decided not to continue its inquiry because of advice provided by the Clerk of the Senate and by Professor Dennis Pearce in relation to limitations on the Senate’s powers to compel evidence from state members of parliament and other state office-holders. The committee’s report provided a comprehensive analysis of this matter and copies of the advices (PP 359/1996).

(See Supplement)

In the United States the view is taken that each House of the Congress and their committees may summon members and officers of state governments, provided that this is for the purposes of inquiries into matters within the legislative power of the Congress. The question has not been adjudicated, but there are precedents for the summoning of state officers and their responding. It must be noted, however, that differing constitutional provisions may reduce the persuasive value of the American law for Australian purposes; for example, article iv, section 4 of the US Constitution, whereby the United States guarantees to every state a republican form of government, gives the Congress a general power of supervision of state governments which the Australian Parliament does not possess.

The Supreme Court of the Province of Prince Edward Island, in Canada, held that officers of a federal government agency had no immunity from a summons issued by a committee of the Legislative Assembly of the province in the course of an inquiry into a matter within the legislative power of the province. This decision was not appealed and the officers subsequently appeared before the committee. (Attorney General (Canada) v MacPhee 2003 661 APR 164)

The power to summon witnesses and the power to require the production of documents are one and the same; any limitations on one therefore apply equally to the other.

The immunity of other houses’ proceedings from impeachment and question before other tribunals (the Bill of Rights, article 9 immunity which most Australian Houses possess) is regarded as preventing any inquiries into their proceedings by the Senate or its committees (see the 54th report of the Committee of Privileges, PP 133/1995).

The inability to compel members of other houses has been regarded as preventing findings of contempt against them, except for Commonwealth ministers in that capacity (see Chapter 19, Relations with the executive government, under Ministerial accountability and censure motions). This principle might be held to be applicable to state and territory office-holders.

Possible and mooted limitations on the Senate’s power to compel evidence were summarised in ‘The Senate’s power to obtain evidence and parliamentary “conventions”’, paper by the Clerk of the Senate published by the Finance and Public Administration References Committee, September 2003.

Subject to the observance by the courts of parliamentary immunities, there is nothing to prevent judicial proceedings involving the same facts and circumstances as have been examined in a parliamentary inquiry (cf Hamilton v Al Fayed 1999 3 All ER 317; a different view of the particular case, though not of the law, was taken by the House of Lords on appeal, 2000 2 WLR 609; also Mees v Roads Corporation 2003 FCA 306).

For the application of the sub judice convention to inquiries by the Senate, see Chapter 10, Debate, under Sub judice convention, and Chapter 16, Committees, under Privilege of proceedings.

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