Odgers' Australian Senate Practice Thirteenth Edition

Chapter 17 - Witnesses

Right click over the text to activate a context menu for Odgers. (Note: on iPad Safari this function is activated by a finger press and holding down for several seconds.)

Ministerial staff as witnesses

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.[55] 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.[56] 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.[57]

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.[58] 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.[59] A similar dispute in Victoria was not resolved before the 2010 election led to a change of government in that state.[60]

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.[61] 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.

55. Senator Collins, SD, 30/5/1996, p. 1391.
56. 7/2/1995, J.2895-7.
57. 16/10/2003, J.2591, PP 266/2003.
58. 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
59. Committee on the Judiciary, US House of Representatives v Miers, (D DC, Civ No 08-0409, 31 July 2008).
60. Victorian Legislative Council, Standing Committee on Finance and Public Administration, Inquiry into Victorian government decision making, consultation and approval processes, First Interim Report, April 2010; Second Interim Report, August 2010.
61. 26/6/2008, J.656.