Odgers' Australian Senate Practice Thirteenth Edition

Chapter 17 - Witnesses

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Witnesses in custody

Standing order 180 applies to witnesses who are in prison. It provides that a person in charge of the prison may be ordered to bring the witness, in safe custody, to be examined. The President may be ordered by the Senate to issue a warrant accordingly.

Use of this procedure would give rise to a difficulty if prisoners are held in state or territory prisons, which, in the absence of any federal prison, is invariably the case. As noted above and in Chapter 2, Parliamentary Privilege, under Power to conduct inquiries, the Commonwealth Houses and their committees do not, as a matter of comity between governments in a federal system, and perhaps as a matter of law, exercise a power to summon state office-holders, and this rule is extended to self-governing territories. The Senate and its committees would not, therefore, issue an order to a state or territory officer in charge of a prison, but would seek the co-operation of the state or territory government. Prisoners, of course, are liable to be summoned regardless of who has them in custody and regardless of whether they are convicted of a state or territory or federal offence. If it appeared that a state or territory government sought without justification to shield a prisoner from a Senate inquiry, a summons to the prisoner could be issued and left at the place of imprisonment, and the Senate could then test any refusal to produce the prisoner, perhaps by means of a writ of habeas corpus.

There has been no occasion to use the procedure in the standing order, but Senate committees have otherwise had access to witnesses in custody by virtue of their general powers of inquiry. In 1989 the Standing Committee on Environment, Recreation and the Arts met at the Brisbane Correctional Centre in order to obtain evidence from two prisoners in relation to its inquiry into drugs in sport. Although media representation was permitted at the hearing, the public was excluded for security reasons and the meeting could not therefore be regarded as a public hearing. The committee held a special private meeting at which a transcript of evidence was taken, and subsequently published the transcript, other than those parts containing in camera evidence. The Parliamentary Joint Committee on the National Crime Authority in 1988 took evidence from persons in custody in relation to its inquiry on witness protection. Prisoners were brought to committee hearings at venues such as Commonwealth Parliamentary Offices in State capitals, but the hearings were in camera.