Odgers' Australian Senate Practice Thirteenth Edition

Chapter 16 - Committees

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Conduct of proceedings

Meeting and election of chair

The first meeting of a committee is usually decided upon by agreement among the members in communication with the committee secretary who liaises informally with them and the senator who is likely to be elected chair. However, the mover of a committee, if a member of it, is entitled to fix a time for the first meeting of a committee. Where the mover of a committee is not a member the secretary is authorised to fix a time for the first meeting.[217]

At the first meeting the secretary takes the chair until a chair has been elected. At the appointed time and when a quorum is present the secretary calls the meeting to order and refers to the resolution of the Senate establishing the committee and appointing its members. The secretary normally circulates copies of these resolutions to members prior to the meeting as part of the documents for the meeting. The secretary calls for nominations for the position of chair, drawing attention to any provisions in the standing orders or resolution establishing the committee which require the chair to be a member nominated by the Leader of the Government in the Senate, Leader of the Opposition in the Senate or minority groups or independents.

It is customary for only one nomination to be received for chair, in which case the secretary declares the nominated senator elected. If two or more senators are nominated, the procedure for election follows that for a President of the Senate, provided for in standing order 7, and a ballot is held. After declaring the result of the election, the secretary hands over the chair to the senator elected.

The election or appointment of a deputy chair may also need to be dealt with at the first meeting, depending on the terms of the relevant standing order or resolution. Legislative and general purpose standing committees are required to elect a deputy chair to act as chair when the chair is absent from a meeting or the position of chair is temporarily vacant.[218] There is no requirement for the deputy chair to be elected immediately after the chair is elected, although committees find it convenient to do so. Deputy chairs of those committees are required to be from non-government parties. Other committees have varying requirements in relation to the deputy chair. Most of the standing domestic committees have no formal requirements.[219] Another group of committees is governed by orders providing that the chair may from time to time appoint another senator as deputy chair, to act as chair when the chair is absent from a meeting or when there is no chair. This group includes the Appropriations and Staffing Committee, the Committee of Senators' Interests, the Regulations and Ordinances Committee, the Scrutiny of Bills Committee and the Selection of Bills Committee.[220] There is no requirement for such committees to have a deputy chair from a different party, although in practice most do.[221]

One case in which the question of deputy chair needs to be resolved at the first meeting is when a committee is governed by a resolution requiring the appointment of a deputy chair immediately after the election of the chair. Such provisions are included from time to time in resolutions establishing select committees.[222]

In the legislative and general purpose standing committees, the chair, or the deputy chair when acting as chair, may appoint another member of a committee to act as chair during the temporary absence of both the chair and deputy chair from a meeting.[223]

Meetings subsequent to the first meeting are notified to each member by the secretary. The secretary acts in response to resolutions of the committee determining meeting times, or in accordance with instructions from the chair who may fix the time and place of committee meetings, or on request from a quorum of members who duly notify the secretary, either personally, in writing or through some authorised agent.[224] A meeting held in response to a request from a quorum of members must be presided over by the chair or, in the chair's absence, the deputy chair.

Where the standing orders and the resolution of appointment of a committee are silent, the procedures of the Senate apply so far as they are applicable.

Role of chair in maintaining order

Order in a committee is maintained by the chair but may be enforced only by the Senate on receipt of a report of an offence. The rules of debate also apply to committee proceedings; for example, in relation to offensive language and personal reflections.[225] Points of order and privilege may be raised[226] and objections to a chair's ruling may be taken.[227] Privilege Resolution 1(9) requires that discussion of a ruling of the chair on the relevance of questions shall occur in private session.

A chair of a committee may make a ruling on any question of order relating to the proceedings of the committee. Rulings must conform with the rules of the Senate. In particular, it is not open to a chair of a committee to impose restrictions on senators which are not imposed by some known rule prescribed by the Senate. A member of a committee may move a motion that the chair's ruling be dissented from, and, if this motion is passed, the decision of the committee is substituted for the ruling of the chair for the time being, subject to any decision by the Senate. If the motion is not passed, the chair's ruling stands, also subject to any decision by the Senate.

When a motion of dissent is moved, there is no requirement for the chair to be vacated and taken by another senator. The chair may vote on the motion of dissent, and exercise a casting vote where such a vote is provided for in the terms of appointment of the committee. This is the procedure which applies in the Senate, but of course the President does not have a casting vote.

The standing orders contain no provisions about how a committee is to proceed in a case of disorderly conduct by a senator in a committee, such as a senator using offensive words and refusing to withdraw them. This is one of the areas in which committees follow the procedures of the Senate in so far as they are applicable. Following those procedures, if a senator is asked to withdraw offensive words and refuses, the chair may report ("name") the senator and a motion may be moved that the senator be directed to withdraw from the meeting of the committee. Before that stage is reached, it is within the discretion of the chair to ask a disorderly senator to withdraw from the meeting. If a senator were to refuse to withdraw from a meeting after the committee has ordered his or her withdrawal, the committee would not be able to take any action other than to terminate the meeting and report the matter to the Senate.

Quorum

Apart from the requirement that either the chair or deputy chair be present, a committee may not meet without a quorum. The following provisions apply to every Senate committee and subcommittee:

In each committee and subcommittee, unless otherwise provided, a quorum shall be

  1. (a) a majority of the members of the committee or subcommittee; or
  2. (b) two members, where one member present was appointed to the committee on the nomination of the Leader of the Government in the Senate and one member present was appointed to the committee on the nomination of the Leader of the Opposition in the Senate.[228]

A majority of members on a committee with an even number of members is defined as half the members of the committee plus one. Thus on six member committees a majority is four. On a subcommittee of three members, a majority is two. The fact that a chair has a casting vote is of no relevance in establishing a quorum: a chair does not count as two members towards a quorum. On committees with chairs from minority groups, the lesser quorum would be constituted by the chair, a member nominated by the Leader of the Government in the Senate and a member nominated by the Leader of the Opposition in the Senate. The requirement would remain at two on such committees only if the deputy chair (a government or Opposition senator) were in the chair for that meeting.

Participating members of the legislative and general purpose standing committees are counted for the purpose of forming a quorum if a majority of members of a committee is not present.[229]

A meeting may not commence in the absence of a quorum. If a quorum is not present, the chair suspends the proceedings until a quorum is present, or adjourns the committee. If a quorum has not formed within 15 minutes after the time appointed for the commencement of the meeting, the senators present may retire, after entering their names in the minutes, and the secretary convenes a meeting for another time.[230]

If a senator draws attention to the absence of a quorum during a meeting the proceedings are suspended until a quorum is present, or, if no quorum is present after 15 minutes, the committee is then adjourned.[231]

For the question of whether an inquorate committee meeting is protected by parliamentary privilege, see below, under Privilege of proceedings.

Equally divided votes

On the legislative and general purpose standing committees, the Appropriations and Staffing Committee, the Committee of Senators' Interests, the legislative scrutiny committees and the Selection of Bills Committee, the chair, or deputy chair when acting as chair, in addition to a deliberative vote, has a casting vote when the votes are equally divided. Most select committee resolutions also include a provision to this effect. In all other cases, standing order 31 applies, whereby a chair has a deliberative vote only, and in that situation, where the votes for and against a motion are tied, the question is resolved in the negative.[232]

A chair is not obliged to exercise a casting vote. Where such a vote is provided, however, this prevents standing order 32(1) applying, and a tied vote leaves the question in issue unresolved.

Meetings during sittings

Meetings of committees during sittings of the Senate are regulated by standing order 33:

  1. 33.(1) A committee of the Senate and a joint committee of both Houses of the Parliament may meet during sittings of the Senate for the purpose of deliberating in private session, but shall not make a decision at such a meeting unless:
  1. (a) all members of the committee are present; or
  2. (b) a member appointed to the committee on the nomination of the Leader of the Government in the Senate and a member appointed to the committee on the nomination of the Leader of the Opposition in the Senate are present, and the decision is agreed to unanimously by the members present.
  1. (2) The restrictions on meetings of committees contained in paragraph (1) do not apply after the question for the adjournment of the Senate has been proposed by the President at the time provided on any day.
  2. (3) A committee shall not otherwise meet during sittings of the Senate except by order of the Senate.
  3. (4) Proceedings of a committee at a meeting contrary to this standing order shall be void.

Originally there was a complete prohibition on committees meeting while the Senate was sitting, but this was significantly modified. The prohibition was based on two principles: that a senator's duty lay first with the Senate and should not be subordinated to a lesser duty; and that it was an infringement of the rights of individual senators to participate in debates in the Senate and meetings of committees if the two were scheduled concurrently. From early days, however, the Senate granted permission, in certain circumstances, for committees to meet while the Senate was sitting. In 1987 the prohibition was modified to allow committees to deliberate in private session provided that decisions were not taken unless all members were present. The current provision was adopted in 1994.

Not every private meeting of a committee falls within the category of deliberating in private session. Generally, a deliberative meeting is one where a draft report is being considered or other committee business, such as the settling of inquiry programs, is being undertaken. No one other than the members and officers of a committee may be present when the committee is deliberating.[233] Thus, a briefing involving persons other than committee members or officers is not a deliberative meeting and may not occur while the Senate is sitting in the absence of express authority from the Senate.

The rule in the standing order applies to Senate committees and joint committees on which senators serve. It provides sufficient flexibility for committees to proceed with their business during sittings without having to reconvene in non-sitting periods to take decisions formally.

Committees must seek the agreement of the Senate to hear evidence in private session or to hold public hearings while the Senate is sitting. This is usually done by giving notice of a motion to that effect, but may also be done by motion moved by leave in emergencies. The Select Committee on Political Broadcasts and Political Disclosures, for example, did not complete its examination of an interstate witness before the Senate convened on 14 November 1991. A motion was moved by leave authorising the committee to take further evidence later that day.[234] Such motions are now common. There have been many occasions when the Senate has authorised committees to take evidence during the sittings of the Senate and refusal of such authorisation would now be regarded as highly unusual. Committees may also be authorised to hold deliberative meetings other than in accordance with the standing order. The importance of committee meetings being duly authorised is underlined by paragraph (4) of standing order 33 which provides that proceedings of a committee at a meeting contrary to the standing order shall be void.

As an alternative to authorising committees to meet during sittings, the Senate has on many occasions adjourned early to enable committees to meet without restriction. This was formerly used for committees considering estimates, during the periods when the particulars of proposed expenditure stand referred to the committees.[235]

Public and private meetings

Any person may attend a public meeting of a committee. Persons other than committee members and officers of a committee may not attend a deliberative meeting of a committee, but may be expressly invited to attend other private meetings of committees.[236] A deliberative meeting is one at which a committee considers proposed actions or decisions, for example, a meeting at which a draft report is considered to determine whether it should be the report of the committee.[237]

Meetings by electronic means

Committees are authorised to hold "electronic meetings", that is, meetings at which the members and other participants communicate by electronic means, subject to prescribed conditions, principally that the participants can all hear each other and communicate contemporaneously.[238] Until the adoption of this provision in 1997, the principle was followed that a duly constituted meeting of a committee required a quorum of members present in one place, but other members and witnesses could participate in such a meeting by telephone or videolink.

Disclosure of evidence and documents

Evidence taken by a committee and documents presented to it, and not published by the committee or presented to the Senate, may not be disclosed to any person other than a member or officer of the committee.[239] A committee may authorise the publication of such material. If a committee does not deliberately resolve to publish any such material, it is automatically published on presentation to the Senate. The Senate may separately authorise the disclosure of evidence or other material presented to a committee.

Persons who make a submission to a committee are routinely advised that they may not disclose their submission to other persons until the committee has resolved to publish it. To do so may be a contempt of the Senate.

The principle contained in standing order 37, that only the Senate or a committee may authorise the disclosure of material belonging to it, is elaborated in Privilege Resolution 6, which defines matters constituting contempts to include unauthorised disclosure of evidence:

A person shall not, without the authority of the Senate or a committee, publish or disclose:

  1. (a) a document that has been prepared for the purpose of submission, and submitted, to the Senate or a committee and has been directed by the Senate or a committee to be treated as evidence taken in private session or as a document confidential to the Senate or the committee;
  2. (b) any oral evidence taken by the Senate or a committee in private session, or a report of any such oral evidence; or
  3. (c) any proceedings in private session of the Senate or a committee or any report of such proceedings,

unless the Senate or a committee has published, or authorised the publication of, that document, that oral evidence or a report of those proceedings (paragraph 16).

It is also an offence under section 13 of the Parliamentary Privileges Act 1987 to publish or disclose, without the authority of a House or committee, a confidential submission, oral evidence taken in camera or a report of such evidence. Such an offence may be prosecuted in the courts.

All oral evidence taken in public is automatically published, but any other evidence, written or oral, requires specific authorisation by the committee or the Senate for disclosure.

Given the public interest focus of most Senate committee inquiries, it is usual for most evidence taken by a committee to be published during the course of, or at the conclusion of, the inquiry. There may be reasons why some evidence should remain confidential, including personal privacy, active litigation or possibly adverse commercial consequences.

Where an inquiry has been concluded and unpublished evidence is in the custody of the Senate,[240] an order of the Senate is necessary to publish it. The Senate occasionally makes such an order on the recommendation of the committee concerned.[241] This procedure has been used for limited publication of evidence, for example, to police to assist in fraud inquiries, subject to the limitation imposed by parliamentary privilege.[242]

On 30 August 2001 the Senate took the unusual step of ordering the publication of documents held, and not published, by a committee. The Rural and Regional Affairs and Transport Committee was given a reference on the role of the Australian Maritime Safety Authority (AMSA) in the search for the Tasmanian fishing vessel the Margaret J. A majority of the committee subsequently accepted representations by AMSA and counsel assisting the Tasmanian coroner that it should not proceed with its inquiry until the coroner had concluded his inquiry into the matter, a decision opposed by the non-government members of the committee. The representations were based on a claim that the committee's inquiry could prejudice the coroner's inquiry. Advice to the committee from the Clerk (which was tabled in the Senate), however, pointed out that this claim rested on misapprehensions that the coroner could not receive documents which were laid before the committee or evidence which contradicted evidence given in the committee or remarks made in the Senate, misapprehensions clearly arising from a misunderstanding of parliamentary privilege. While not seeking to compel the committee to proceed with its inquiry, the majority of the Senate directed the publication of relevant documents supplied by AMSA and held by the committee, so as to ensure that the documents provided to the committee could not be withheld from the coroner.[243]

Committees sometimes table in the Senate submissions or other material received after the committees have concluded their inquiries. Thus on 9 May 1996 Senator Campbell, the former chair of the Select Committee on Certain Land Fund Matters, tabled a document submitted by a person who had featured in the committee's inquiry and which referred to disputes between witnesses before that inquiry.[244] This procedure is used to allow witnesses to respond to evidence adverse to them.[245]

For the publication of in camera evidence in a report, see Chapter 17, Witnesses, under that heading.

Committees are occasionally asked to provide unpublished evidence or documents to particular persons for purposes which those persons wish to pursue, particularly for use in litigation. Committees have been advised that they should not publish the documents unless they would do so having regard to the purpose for which documents are normally published, that is, to assist a committee and its witnesses in its functions of inquiring into and reporting on matters referred to it by the Senate. Committees have been advised that, if they have not, and would not, publish documents for that purpose, they should not, particularly after the conclusion of an inquiry, publish such documents for the purposes of other persons, such as the pursuit of litigation. The basis of this advice is that committees should use their powers only to enable them to perform their functions on behalf of the Senate, and not for purposes unrelated to those functions. If this principle is not followed committees risk having their powers used to support one side or another in disputes which are unrelated to the Senate's purpose in conducting an inquiry. Committees have generally adhered to these principles.

A committee may consider, however, that there is an overriding public interest in providing unpublished material in particular circumstances. It is a matter for the committee's judgment whether there is such an overriding public interest which should overcome the general principle.

Investigation of unauthorised disclosures

Orders of the Senate, adopted on the recommendations of the Procedure and Privileges Committees, require committees to investigate in a preliminary way any unauthorised disclosures of their unpublished materials, and form a conclusion about whether the disclosures tended to interfere with their work, before raising such disclosures as matters of privilege for investigation by the Privileges Committee.[246]

Access to historic committee material

Standing order 37(3) provides procedures for regulating access to historic committee material which has not been published. It authorises the President to permit any person to examine and copy evidence submitted to, or documents of, committees which are in the custody of the Senate, have not previously been published and have been in the Senate's custody for at least ten years. Confidential and in camera material may not be disclosed until it has been in the custody of the Senate for at least thirty years and unless the President is of the opinion that it is appropriate that such evidence or documents be disclosed. The President is required to report to the Senate the nature of any evidence or documents made available and the persons to whom they have been made available. The House of Representatives agreed to similar conditions under which the President and Speaker may jointly authorise access to evidence and documents of joint committees.[247] In 1996 the President tabled an unpublished document of a former select committee on the basis that it would normally have been made public.[248]


217. SO 30(1).
218. SO 25(9)(d).
219. See SO 17, 18 and 20-22 relating to the Procedure, Privileges, Library, House and Publications Committees, respectively.
220. SOs 19(6), 22A(5), 23(7), 24(5), 24A(2)(c).
221. For precedent for a deputy chair appointed from time to time required to be of a different party to the chair, see 14/8/1991, J.1366.
222. See, for example, 25/6/1992, J.2635 (Sales Tax Legislation); 25/6/1992, J.2640 (Subscription Television Broadcasting Services); 2/9/1993, J.450 (Whistleblowing); and 9/12/1993, J.965 (Print Media). Another variation is apparent in 13/5/1993, J.150 (Superannuation).
223. SO 25(9)(f).
224. SO 30(2).
225. SO 193(2) and (3); see statement by President Hogg, SD, 23/3/11, p. 1642 and correspondence to the Chair of the Legal and Constitutional Affairs Legislation Committee, tabled on 23/3/11, J.754.
226. SO 197.
227. SO 198, although as a matter of practice there is no requirement in a committee for the objection to be in writing.
228. SO 29.
229. SO 25(7)(d).
230. SO 29(2) and (3).
231. SO 29(2).
232. SO 32(1).
233. SO 36.
234. J.1710.
235. For a precedent for the Senate suspending its sitting for several hours to enable legislative and general purpose standing committees to meet, see 9/3/1978, J.63.
236. SO 36.
237. For suspensions of the standing order to allow the legislative scrutiny committees to invite members of their state counterpart to their deliberations, see 2/6/2001, J.4368, 26/6/2001, J.4405.
238. SO 30(3).
239. SO 37.
240. SO 25 (15).
241. 30/11/2000, J.3638.
242. 31/8/2000, J.3181.
243. 30/8/2001, J.4830-1.
244. J.138.
245. See Chapter 17, Witnesses, under Protection of witnesses.
246. 20/6/1996, J.361; 6/10/2005, J.1200-2; 17/9/2007, J.4388. For examples of action by committees under these provisions, see statement by the chair of the Senators' Interests Committee, SD, 13/9/2006, pp. 90-2; report by the Rural and Regional Affairs and Transport Committee, PP 205/2007.
247. Resolution of the Senate of 6 September 1984, J.1086, concurred with by the House of Representatives on 11 October 1984.
248. 9/5/1996, J.282.

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