Powers of committees
The power of each House of the Parliament to conduct inquiries is recognised as intrinsic to and essential for a legislature. For the most part, the Senate does not conduct its own inquiries but delegates this function, along with the necessary powers, to committees.
Committee powers normally include the following:
- to send for persons and documents (that is, to summon witnesses and require the production of documents);
- to move from place to place;
- to take evidence in public or private session;
- to meet and transact business notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives; and
- to appoint subcommittees.
Committees possess some or all of these powers, depending on their functions. Legislative and general purpose standing committees, for example, when conducting estimates hearings may hear evidence only in public and may not take evidence in camera.
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.
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". 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. 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.
The procedures contained in Privilege Resolution 1 for the protection of witnesses are analysed in Chapter 17, Witnesses.
Power to take evidence in private
Most committees are empowered to hear evidence in public or in private. It is open to a committee to decide not to pursue a matter because it would be contrary to the public interest for reasons including possible prejudice to court proceedings, national security or individual privacy. In making such decisions, however, most committees have an option not in practice available to the Senate itself, and that is the power to take evidence in camera.
By hearing evidence in private and agreeing to orders forbidding publication of the evidence, a committee may inform itself fully on an issue and at the same time minimise any risk arising from the publication of evidence. A committee may decide to publish the in camera evidence at a later date when the risk of harm has passed, or may decide on partial publication in order to balance competing concerns. For further material on the taking of evidence in camera and other measures to protect witnesses, see Chapter 17, Witnesses, under Protection of Witnesses: (b) procedural protection. The report of the Senate Standing Committee on Foreign Affairs, Defence and Trade, Sexual Harassment in the Australian Defence Force: Facing the Future Together, contains a useful discussion of some of the issues involved in taking evidence in camera and releasing it at a later date, particularly in the context of individual privacy and the right to natural justice of an individual against whom allegations are made.
Committees considering estimates must take all their evidence in public. Documents submitted to a committee considering estimates may not be withheld from publication; nor may evidence be taken in camera. Matters which arise during the consideration of estimates may be the subject of reference to a legislative and general purpose standing committee in possession of the full range of committee powers. For example, on two occasions, in 1985 and 2009, when questions were asked at estimates about the salaries of ABC television presenters, this information, regarded as commercially sensitive, was subsequently provided as in camera evidence in the course of other inquiries.
Power to meet and transact business notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives
Most Senate committees are empowered to continue their operations regardless of the prorogation of the Parliament or the dissolution of the House of Representatives, either of which occurrences terminates a session of Parliament. Committees formed for the life of a parliament continue in existence until the day before the next Parliament first meets.
On many occasions, Senate committees have continued their activities after the dissolution of the House of Representatives or prorogation of Parliament, including by taking evidence and presenting reports. The absolute privilege of these activities has not been called into question and the practice is now firmly entrenched in standing orders as well as being confirmed by declaratory resolution. The power of the Senate to authorise its committees to meet derives from the Senate's character as a continuing House and from the Constitution.
Power to appoint subcommittees
Some committees are authorised by the Senate to appoint subcommittees to assist in carrying out the business of committees. These committees include the Appropriations and Staffing Committee, the Scrutiny of Bills Committee and the legislative and general purpose standing committees. Resolutions for the establishment of select committees may also contain provision for the appointment of subcommittees.
Senate committees which have inquiry powers but which do not have the power to appoint subcommittees include the Regulations and Ordinances Committee, the Publications Committee and the Committee of Privileges. In the case of the first two committees listed, the absence of the power may be attributed largely to historical reasons. The use of subcommittees by the Committee of Privileges, however, is considered inappropriate given its role.
Subcommittees are usually provided with the same powers as their parent committees. Standing order 25(14), for example, empowers legislative and general purpose standing committees and any subcommittees to send for persons and documents, to move from place to place and to meet and transact business in public or private session and notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives. Subcommittees may conduct any business which the committee itself may perform, but only in consequence of a committee resolution of appointment. Subcommittees may not report to the Senate, however, other than through their parent committees which may adopt the report of a subcommittee. Generally, the use of subcommittees increases a committee's flexibility and enables it to pursue several tasks simultaneously.
A subcommittee is an agent of the committee and not the committee itself, even in the presence of members who might otherwise constitute a quorum of the committee capable of meeting in the presence of the chair. A transformation from subcommittee to committee is not permissible in these circumstances, as absent members could not have been given proper notice of a committee meeting. However, the absence of sufficient notice is the only impediment to a formal meeting of the full committee in such circumstances and if this can be overcome, a subcommittee meeting may be transformed into a committee meeting.
It is not permissible for a committee to appoint a subcommittee comprised of whichever senators attend a particular meeting or hearing. The full membership of a subcommittee must be specified by name and specific matters referred to it. The resolution of appointment may specify a chair and deputy chair or provide that the members of the subcommittee may elect their own chair and deputy chair. In any event, the subcommittee must exist and function in accordance with the standing orders of the Senate and a committee resolution of appointment that is consistent with the standing orders.
Subcommittees are required to have at least one government and one opposition senator.