Odgers' Australian Senate Practice Thirteenth Edition

Chapter 17 - Witnesses

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Swearing in of witnesses

With the exception of hearings before the Privileges Committee, there is no requirement in the standing or other orders of the Senate for witnesses before the Senate or a committee to be sworn. The power to take evidence on oath, however, is one of the undoubted powers of the Houses and their committees under section 49 of the Constitution.[72]

Standing order 35 provides for the examination of witnesses to be conducted by a committee in accordance with procedures agreed to by the committee, subject to the rules of the Senate. It is open to a committee to decide that witnesses should be sworn but in most cases this is not required. The swearing in of a witness has no effect on the witness's obligation to provide truthful answers to a committee or on the Senate's ability to deal with a recalcitrant or untruthful witness. Nor does it affect the privileged status of committee proceedings. A witness who gives false or misleading evidence, or evidence which the witness does not believe on reasonable grounds to be true or substantially true, may be guilty of a contempt regardless of whether the witness was sworn. If a committee requires a witness to be sworn, however, it is a contempt for a witness, without reasonable excuse, to refuse to make an oath or affirmation or give some similar undertaking to tell the truth.[73]

Privilege Resolution 2 requires that witnesses before the Privileges Committee be heard on oath or affirmation. As the Privileges Committee performs something like a judicial function, it is considered necessary that evidence is taken by the committee on oath.

Committees usually do not exercise their power to take evidence on oath. Where witnesses provide committees with their views or opinions on the subject of the inquiry, the taking of evidence on oath may not be appropriate and, indeed, may inhibit the free flow of information to a committee. It may also create invidious distinctions between witnesses if some are sworn and some are not. On the other hand, it may serve to remind witnesses of the gravity of the proceedings and the need to be truthful, particularly where inquiries involve contentious issues of fact and it may have been necessary to compel witnesses to attend by summons.

A witness may take an oath on the Bible or other religious text, such as the Koran, or may make an affirmation. The following forms are used:

Oath

I swear that the evidence I shall give before this Committee shall be the truth, the whole truth and nothing but the truth, so help me God.

Affirmation

I sincerely and solemnly affirm and declare that the evidence I shall give before this Committee shall be the truth, the whole truth and nothing but the truth.

The oath or affirmation is administered in a committee by the secretary to the committee.


72. See Chapter 2, Parliamentary Privilege.
73. Privilege Resolution 6(12).

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