Members or officers of other Houses
As noted in Chapter 2, under Power to conduct inquiries, as a matter of comity between legislatures, and perhaps as a matter of law, the Senate may not summon members of the House of Representatives or of state and territory legislatures. Senate procedures reflect this rule.
If the Senate or one of its committees requires the attendance of a member or officer of the House of Representatives, standing order 178 requires a message to be sent to that House. The message is framed as a request that the House give leave for the member or officer to attend. A similar provision is in the standing orders of the House of Representatives and is referred to in standing order 179, which provides that, on receipt of a message from the House of Representatives, the Senate may authorise the attendance of a senator or Senate officer before a House committee.
The standing orders are interpreted as not preventing the voluntary appearance by invitation of members and officers of one House before the committees of the other. It is quite common for members of the House of Representatives or of state parliaments to appear before Senate committees by invitation, and many have done so. In 1981, a Speaker of the House of Representatives appeared before a Senate committee for the first time, the Select Committee on Parliament’s Appropriations and Staffing (see SD, 19/11/1981, p. 2409). On several occasions, House of Representatives ministers have appeared before Senate committees, rather than following the usual practice of being represented by a Senate minister. The Senate Industry, Science and Technology Committee, for example, during its inquiry into the Australian Nuclear Science and Technology Organisation Amendment Bill 1992 in May 1992, heard evidence from the Minister for Science and Technology who was a member of the House of Representatives, the New South Wales Minister for the Environment and a state member. The systematic consideration of bills by Senate committees has resulted in more frequent appearances by state parliamentarians representing their interests in relation to bills affecting Commonwealth-State relationships, such as the Forest Conservation and Development Bill 1991, the Medicare Agreements Bill 1992 and the Native Title Bill 1993. The Community Affairs Legislation Committee on 5 May 1998 heard evidence from most state and territory health ministers simultaneously in relation to the Health Legislation (Health Care Amendments) Bill 1998. The Select Committee on Medicare in 2003 heard several state health ministers. The New South Wales Minister for Justice represented all his state and territory counterparts at the hearing of the Legal and Constitutional Legislation Committee into the Anti-terrorism Bill (No. 2) 2004. State and territory ministers appeared before the Employment, Workplace Relations and Education Legislation Committee in its inquiry into workplace agreements and workplace relations legislation in October and November 2005.
This informal procedure of appearance by invitation is used only in cases where members are offering their views on matters of policy or administration under inquiry by Senate committees. The procedure has not been used in cases where the conduct of individuals may be examined, adverse findings may be made against individuals or disputed matters of fact may be under inquiry. For such cases it is considered that the formal process of message and authorisation to appear should be employed. This procedure was invoked in December 1993 when the House requested the appearance of a senator before its Committee of Privileges in relation to an investigation of an alleged unauthorised disclosure of the draft report of a joint committee of which the senator was a member. The Senate authorised the appearance of the senator before the House Committee of Privileges (16/12/1993, J.1077; see also 5/12/1986, J.1576; 7/3/2001, J.4043).
The standing orders are also not regarded as preventing the Privileges Committee of one House seeking the written comments of a member of the other House on a matter under inquiry. This has been done by the Senate Privileges Committee on occasions when it has conducted inquiries into unauthorised disclosures of documents of joint committees. The committee has, on these occasions, written to members of the House of Representatives and asked them whether they have any relevant knowledge about the matter under inquiry. To have members of one House attend for examination before a committee of the other, however, would require the formal process of a message. The rationale of this distinction between providing written information and giving oral evidence is that a written inquiry is in the nature of a preliminary step to see whether a full formal hearing is warranted, whereas submitting a member to examination before a committee is a more formal and rigorous inquiry process which also involves a much greater possibility of inquiry into the conduct of the member. (By contrast, see report of the United Kingdom House of Commons Standards and Privileges Committee, HC 447 2003-04, for a contempt found, against a minister (the Lord Chancellor), in the absence of a culpable intention, after he gave evidence voluntarily before the committee.)
Although the standing orders refer to the House to which a request is made giving permission for its member to appear, it is open to that House to compel the member to appear. As either House may compel its members to appear for the purposes of its own inquiries, it follows that a House can compel its members to appear in an inquiry by another House.
The granting of permission for members of one House to appear before the other House or its committees does not, however, suspend the rule that one House may not inquire into or adjudge the conduct of a member of the other House, other than the conduct of a minister in that capacity. The Senate so declared in granting permission for senators to appear before the House Privileges Committee in an inquiry into the unauthorised disclosure of joint committee documents in 2001 (7/3/2001, J.4043). (See also Chapter 19, Relations with the Executive Government, under Ministerial accountability and censure motions, for material on censure of private members of the other House.)
One of the rare occasions of the use of the procedure under standing order 178 highlights this principle, as well as a probable limitation on the Senate’s power to compel evidence. The Select Committee on the Powers, Functions and Operation of the Australian Loan Council was appointed on 3 November 1992 to investigate reports that the state of Victoria had exceeded its borrowing limits with the knowledge of the federal Treasurer. The committee’s invitations to appear were met with refusals from several witnesses, including members of state parliaments and the House of Representatives. The committee sought advice from the Clerk of the Senate on whether the Senate could compel members of the House of Representatives and members of state parliaments to appear.
The Clerk’s advice was that the Senate did not possess this power. Two bases for the advice were given. The first was that it is a parliamentary rule that a house of parliament does not seek to compel the attendance of members of the other house, as a matter of comity between the houses and of respect for the equality of their powers. This rule is embodied in standing order 178. The Clerk advised that this parliamentary rule should be regarded as extending to the houses of state and territory parliaments, as a matter of comity with those houses and respect for their powers of inquiry.
Secondly, it was advised that, should the matter ever be adjudicated by the courts, the courts could find that as a matter of law the Senate does not possess this power. The courts could arrive at such a finding by reading the parliamentary rule as a rule of law, as courts have done with other parliamentary rules in the past, or, more probably, could find in the Constitution an implied limitation on the powers of the federal Houses in respect of each other and the state houses, on the basis of the doctrine of integrity of state institutions which has been expounded in other judgments. The committee was also advised that the House of Representatives and the state houses could, at the request of the Senate, compel their members to attend before a Senate committee if they considered it was in the public interest to do so. (The advice is contained in the interim report of the committee, March 1993, PP 78/1993.)
The committee presented a report to the Senate on 30 September 1993 (Second Report, PP 153/1993), recommending that the Senate request the House of Representatives and certain state houses to require the attendance of certain of their members before the committee to give evidence. The Senate agreed to a resolution to make the various requests on 5 October (J.566). A message from the House of Representatives, declining to accede to the request in respect of the Treasurer, was received on 7 October. Responses from the Victorian Houses were received on 20 and 21 October. The Victorian Houses did not accede to the requests to require their members to appear, but passed resolutions giving the members leave to appear if they thought fit. As these resolutions were passed without debate, it is not clear whether the view was taken that the Houses do not have the power to require their members to appear before a committee of another house, or whether the Senate’s requests were declined for other reasons. The New South Wales Legislative Assembly accepted a statement by its Speaker that it did not have the power to compel its members to appear before a Senate committee.
The Select Committee on Unresolved Whistleblower Cases (report, PP 344/1995, pp 138-40) and the Select Committee on the Victorian Casino Inquiry (report, PP 359/1996) received and accepted similar advice.
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.
In the course of its inquiry into the regional partnerships program in 2005, the Finance and Public Administration References Committee received evidence about the conduct of members of the House of Representatives, but did not consider such evidence except to the extent that it was relevant to the matter under inquiry by the committee (statement by Senator Forshaw, chair of the committee, transcript of hearing 3/2/2005, pp 26-7).
The Privileges Committee in 2007 refrained from finding the contempt of improper refusal to provide evidence on the part of a person because a full hearing of the matter would have involved allowing the person to question a member of the House of Representatives (131st report of the committee, PP 171/2007, endorsed by the Senate 20/9/2007, J.4463).
This probable immunity of members of other houses does not apply to former members. During the course of an inquiry by the Select Committee on Certain Foreign Ownership Decisions in relation to the Print Media in 1994, evidence was taken from two former Treasurers and a former Prime Minister, all of whom had ceased to be members of the House of Representatives. One former Treasurer appeared voluntarily but the other two former members appeared only in response to summonses. The former Prime Minister subsequently reappeared before the committee voluntarily.
In 2002, in the context of the Senate Select Committee on a Certain Maritime Incident, which investigated, amongst other things, the role of ministers and former ministers in election publicity about refugees, a claim was raised by the Clerk of the House of Representatives that former House of Representatives ministers, and ministerial staff (see below), possess some kind of immunity against being summoned by a Senate committee. This was based on a notion of a supposed exclusive right of the House, and inability of the Senate, to hold ministers accountable, a notion which, given rigid executive government control of the House, amounts to a rejection of parliamentary accountability. Advice provided by the Clerk of the Senate and a senior barrister experienced in parliamentary privilege law and litigation made it clear that there is no constitutional or legal basis for any such immunity. The claim was not accepted by any members of the committee, although they disagreed about whether a former minister should be summoned. (report of the committee, 23/10/2002, PP 498/2002; SD, 23/10/2002, pp 5756-7)
The question has occasionally arisen as to whether Senate committees may summon ministerial staff and departmental liaison officers to appear before them and give evidence. Such persons have no immunity against being summoned to attend and give evidence, either under the rules of the Senate or as a matter of law. Departmental liaison officers are not in any different category from other departmental officers. From time to time it has been suggested that ministerial staff are in a special category and should not give evidence before parliamentary committees (Senator Collins, SD 30/5/1996, p. 1391). Such staff have, however, appeared before Senate committees and given evidence, both voluntarily and under summons. In February 1995 the then Minister for Finance, Mr Beazley, declined to allow the Director of the National Media Liaison Service (NMLS) to appear before a Senate committee to give evidence about the activities of the NMLS on the ground that that person was a member of ministerial staff. The Senate passed a resolution directing that person to appear before the committee, and he subsequently appeared and gave evidence accordingly (7/2/1995, J.2895-7). The preamble to the Senate’s resolution pointed out that the NMLS was provided with public funds, and it was stated in debate that the resolution did not set a precedent for summoning ministerial staff, but the passage of the resolution indicates a view on the part of the Senate at that time that such persons can be summoned in appropriate circumstances. A report by the Finance and Public Administration References Committee on the role and accountability of ministerial staff recommended measures to increase their accountability (16/10/2003, J.2591, PP 266/2003).
In 1975 the private secretary to the Prime Minister and the private secretary to the Minister for Labour and Immigration appeared before the Senate Standing Committee on Foreign Affairs and Defence in the course of its inquiry into the contentious matter of South Vietnamese refugees.
In other jurisdictions governments have resisted the appearance of ministerial staff and advisers before legislative committees, but the legislatures and their committees have asserted their right to summon such persons. (See the Fourth Report of the Transport, Local Government and the Regions Committee of the United Kingdom House of Commons, HC 655 2001-02; First Special Report of 2005-06 of the United Kingdom House of Commons Select Committee on Public Administration, HC 690 2005-06.) In the United States various administrations have claimed that it is not appropriate for presidential staff and advisers to give evidence to congressional committees, but many such persons have appeared, both voluntarily and under summons. A judgment of a District Court in 2008 held that they have no immunity (Committee on the Judiciary v Miers, 31/7/2008, not reported).
A ministerial staff member appeared under summons before a committee of the New South Wales Legislative Council (the Orange Grove inquiry) in August 2004, among others attending voluntarily.
In June 2008 the government issued a code of conduct for ministerial staff (J.656). The code seeks to overcome problems with the lack of accountability of ministerial staff, particularly by prescribing that such staff do not have executive functions or the power to direct public servants.
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