Odgers' Australian Senate Practice Thirteenth Edition

Chapter 17 - Witnesses

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Public servants as witnesses

Special rules are provided in Privilege Resolution 1(16) in relation to public servants as witnesses. An officer of the Commonwealth or state public service must not be asked to give opinions on matters of policy and must be given reasonable opportunity to refer questions to a superior officer or to a minister.

The rule relating to the giving of opinions on matters of policy is designed to avoid public servants becoming involved in discussion or disputation with committee members about the merits of government policy as determined by ministers. Public servants may explain government policy, describe how it differs from alternative policies, and provide information on the process by which a particular policy was selected, but may not be asked to express opinions on the relative merits of alternative policies.

The rule concerning reasonable opportunity to refer questions to a superior officer or to a minister is designed to ensure that an officer is not required to answer a question where all the necessary information may not be available to the officer, and that, if there is any difficulty in answering a question, the difficulty is referred to a superior officer, and, if necessary, ultimately to a minister, for resolution. It is not the role of a public service witness to refuse to provide information to a committee. If there is some difficulty in providing information the officer states that there is a difficulty and indicates its nature to the committee, and asks that a superior officer or a minister consider the matter.[62] If a superior officer considers that the information should not be supplied, the matter is referred to the minister. A decision to decline to provide information to a committee is thereby made only at ministerial level by the office-holder who can accept political responsibility for any dispute between a committee and the executive government.

In adopting a report by the Privileges Committee in 1993 the Senate resolved that public servants should receive training in accountability to Parliament.[63]

In 1999 the Senate endorsed the Procedure Committee's condemnation of public service witnesses giving evidence on legislation bringing with them private persons in support of the legislation.[64] The committee considered that such a practice violated a committee's right to select witnesses. There was also concern arising from the payment of the private witnesses' expenses.[65]

The government issues a document, entitled 'Guidelines for official witnesses appearing before parliamentary committees', which sets out practices and principles to be followed by public service witnesses.[66] The guidelines are based on the principle that public servants have a duty to assist parliamentary inquiries, and are generally consistent with the rules laid down by the Senate, but have no status in proceedings of Senate committees other than as persuasive principles.

In 2010, following a recommendation of the Foreign Affairs, Defence and Trade References Committee, the Senate referred to the Privileges Committee the adequacy of advice contained in the guidelines for officials considering participating in a parliamentary committee, whether in a personal capacity or otherwise.[67]The matter was again referred in 2011, in a new Parliament, with wider terms of reference and a version of the guidelines has been foreshadowed.

(SEE SUPPLEMENT)

For claims by the executive government to public interest immunity from giving evidence to committees, see Chapter 19, Relations with the Executive Government, under that heading.


62. For an example of such a claim, see testimony by the Treasury Secretary at estimates hearings of the Economics Legislation committee on 24/2/2011; transcript p. E23.
63. 42nd report, PP 85/1993, 21/10/1993, J.684; resolution reaffirmed, with requirement that departments report on compliance, 1/12/1998, J.225-6; see also 64th and 73rd reports, PP 40/1997, 118/1998.
64. 29/4/1999, J.815.
65. See above, under Protection of witnesses.
66. For text of Guidelines, see SD, 30/11/1989, pp. 3693-3702.
67. 23/6/2010, J.3687.

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