Power to call for persons and documents
Legislative and general purpose standing committees and most select committees possess the full range of inquiry powers, enabling them, if necessary, to summon witnesses and order the production of documents. A person failing to comply with a lawful order of a committee to this effect may be found to be in contempt of the Senate and, in accordance with section 7 of the Parliamentary Privileges Act 1987, subject to a penalty of up to six months’ imprisonment or a fine not exceeding $5 000 for a natural person or $25 000 for a corporation. While committees have power to send for persons and documents, they do not have power to deal with the consequences of a failure to comply with such an order. The committee’s role ends with reporting the matter to the Senate to deal with the possible contempt. For a detailed discussion of how the Senate deals with such matters, see Chapter 2, Parliamentary Privilege.
The power of the Senate and its committees to compel the attendance of witnesses, the giving of evidence and the production of documents is virtually unlimited, subject to some possible qualifications. As discussed in Chapter 2 and Chapter 17, there is probably an implicit limitation on the power of the Senate to summon members of the other House or of a state or territory legislature, and this limitation may extend also to all state officers. It may also be held that the investigatory power of committees is limited to matters within Commonwealth legislative power as delineated by the Constitution. These possible limitations have not been adjudicated. These aside, the extent of the power has been frequently restated although the power itself has been seldom used (see, for example, the 49th report of the Committee of Privileges, PP 171/1994).
Major consideration of the extent of the powers of the Senate and its committees to compel evidence occurred in relation to the efforts of two select committees in 1993 and 1994. The Select Committee on the Functions, Powers and Operation of the Australian Loan Council reported to the Senate in its second report in September 1993 that it had met with “considerable resistance on the part of some prospective witnesses” (Second Report, PP 153/1993, p. 1). There followed a list of members of state parliaments who had declined invitations to appear before the committee. The Treasurer, a member of the House of Representatives, had also declined an invitation. The committee had earlier received advice from 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. In its second report, the committee recommended that the Senate request the various houses to require the attendance of their members before the committee to give evidence. A resolution was agreed to but the requests were declined (see Chapter 17, Witnesses, under Members or officers of other Houses).
The Select Committee on Foreign Ownership Decisions in Relation to the Print Media was established on 9 December 1993 to examine government decisions in 1991 and 1993 in relation to the percentage of foreign ownership of newspapers, and the role of the Foreign Investment Review Board (FIRB). In pursuing its inquiry the committee encountered government claims of public interest immunity, formerly known as executive or crown privilege. (For the major discussion of this topic, see Chapter 19, Relations with the Executive Government, under Claims by the executive of public interest immunity.) The Treasurer refused to release key documents prepared by FIRB and also issued directions to certain current and former FIRB officers not to give information to the committee about the 1991 and 1993 decisions. The committee issued a former Prime Minister and a former Treasurer with summonses to appear; another former Treasurer responded to an invitation to appear and the former Prime Minister appeared a second time at his own request. The documents were not produced to the committee.
The use by committees of inquiry powers through the issuing of a summons for a person to appear or a document to be produced is the exception rather than the rule. Committees usually invite witnesses to attend and give evidence, and witnesses usually attend voluntarily. Resolution 1 of the Senate’s Privilege Resolutions of 1988 require committees to proceed by way of invitation unless circumstances warrant otherwise.
It would not be fair for a witness who appears voluntarily by invitation to be required to answer a question; only witnesses under summons should be so required. In 1971 when a witness appearing voluntarily before the Select Committee on Securities and Exchange declined to answer a question, the witness was subsequently summoned to appear and then required to answer the question.
The Senate may order particular witnesses to appear before committees (7/2/1995, J.2895-7; 6/6/1995, J.3364-5; 22/10/1997, J.2673; 21/10/1999, J.1966; 10/4/2000, J.2582-3, 2585; 28/11/2000, J.3594-5; 19/6/2001, J.4322; 12/3/2002, J.154-6; 25/11/2003, J.2709-10). (See Supplement)
The procedures contained in Privilege Resolution 1 for the protection of witnesses are analysed in Chapter 17, Witnesses.
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