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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 17 - Witnesses

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Inquiries and witnesses

In order that this information-gathering process may be effective, the Senate has the power to require persons to attend and give evidence and to produce documents, and may punish any default as a contempt of Parliament, although, as is noted below, these powers are in practice seldom used.[1]

The necessity of the inquiry function and of the power to compel evidence and documents as an essential attribute of the legislative power was well expressed by the United States Supreme Court in 1927:

A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information - which not infrequently is true - recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.[2]

Inquiries are normally conducted through the medium of Senate committees, which are appointed by the Senate and are given the task to inquire into particular matters on behalf of the Senate and report to the Senate on those matters. The Senate may, however, conduct inquiries and hear evidence directly, and has occasionally done so by requiring witnesses to appear before the Senate. The considerations applying in relation to witnesses apply equally to witnesses before the Senate and witnesses before committees, and are therefore analysed in this chapter.[3]

In practice, the power to compel the attendance of witnesses and the production of documents is normally not used in the conduct of inquiries. Senate inquiries proceed on a voluntary basis, with witnesses invited to make submissions, to produce other documents and to appear and give oral evidence. Witnesses are normally very willing to place their views and the information they possess before the Senate to assist in an understanding of issues and in the framing of legislation. On rare occasions, however, witnesses are summoned to give evidence and required to produce documents where the Senate or its committees believe that the proper conduct of inquiries entails the exercise of those inquiry powers. Some witnesses ask to be summoned in the mistaken belief that this gives them greater legal protection,[4] and committees accede to such requests.

The Senate may order particular witnesses to appear before committees and give evidence.[5] In all cases the orders were complied with and witnesses duly appeared, or, in one case, required documents were produced. They were all public office-holders; this procedure has not been used in respect of private citizens.

On 28 October 2009 the Senate agreed to an instruction that the President of Fair Work Australia appear at the next round of estimates hearings and at all future hearings where estimates for Fair Work Australia are involved. This followed the President effectively declining to appear on the basis of his status as a judge of the Federal Court. It was pointed out in advice from the Clerk that the President is not a judicial officer when performing his functions as head of Fair Work Australia and, in any event, there is no rule that judges could not be required to appear where appropriate.[6] Attempts to relax the order have been unsuccessful to date.[7]

1. See also Chapter 2, Parliamentary Privilege, particularly under Power to conduct inquiries.
2. McGrain v Daugherty 273 US 135 (1927) at 174-5.
3. See also Annotated Standing Orders of the Australian Senate, under SO 182, pp. 512-4.
4. See under Protection of Witnesses, below.
5. For precedents, see 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; 28/10/2009, J.2661-2; 13/5/2010, J.3494.
6. 28/10/2009, J.2661-2.
7. 23/6/2010, J.3684-85; 4/7/2011, J.1135; 23/8/2011, J.1358; 25/8/2011, J.1399-1400. The matter remains unresolved.