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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 17 - Witnesses

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Publication of in camera evidence

As has been noted above, it is open to a committee and to the Senate to publish evidence which has been taken in camera.[76]

Normally in camera evidence is not published by either the committee or the Senate. Evidence is usually taken in camera only when a committee has made a deliberate decision that it is appropriate to do so for the protection of a witness. It may subsequently be decided, however, that the appropriate protection of a witness does not require that the evidence be kept confidential. As has also been noted above, witnesses are completely protected against any use of their evidence against them in subsequent proceedings in a court or tribunal, and against penalty or injury in consequence of their evidence. A committee may decide that this protection is sufficient to ensure that a witness is unharmed by the publication of their evidence. If evidence has been taken in camera to protect a witness against extra-legal difficulties, however, that decision is normally sustained by the committee and the Senate subsequently.

Standing order 37(3) provides for the disclosure by the President of unpublished evidence and documents which have been in the custody of the Senate for 10 years, and in camera evidence and documents which have been in the custody of the Senate for 30 years. This provides for access to material for the purposes of historical research.

In 1991 the Senate, with the advice of the Procedure Committee, gave consideration to the question of whether senators who added a dissenting report to a report of a committee may refer to evidence taken in camera by the committee. This question involved competing considerations. It is desirable that in camera evidence not be disclosed except by a deliberate decision by a committee, but there is a possibility of a majority of a committee suppressing evidence which is essential for a senator to make out the senator's case in a dissenting report. As noted above, the purpose of gathering evidence is to support conclusions and recommendations, and this applies equally to a dissent. The Senate therefore adopted a resolution which requires that a committee and any dissenting senator seek to reach agreement on the disclosure of any relevant in camera evidence, but provides a residual ability of a dissenting senator to use in camera evidence for making out a dissent. The relevant provisions are now contained in standing order 37(2):

A senator who wishes to refer to in camera evidence or unpublished committee documents in a dissenting report shall advise the committee of the evidence or documents concerned, and all reasonable effort shall be made by the committee to reach agreement on the disclosure of the evidence or documents for that purpose. If agreement is not reached, the senator may refer to the in camera evidence or unpublished documents in the dissent only to the extent necessary to support the reasoning of the dissent. Witnesses who gave the evidence or provided the documents in question shall, if practicable, be informed in advance of the proposed disclosure of the evidence or documents and shall be given reasonable opportunity to object to the disclosure and to ask that particular parts of the evidence or documents not be disclosed. The committee shall give careful consideration to any objection by a witness before making its decision. Consideration shall be given to disclosing the evidence or documents in such a way as to conceal the identity of persons who gave the evidence or provided the documents or who are referred to in the evidence or documents.

The publication of evidence taken in camera except by the authorisation of the Senate or a committee is declared to be a contempt punishable by the Senate.[77] Such publication may also be prosecuted as a criminal offence under section 13 of the Parliamentary Privileges Act 1987. These provisions reinforce the protection of witnesses by the taking of evidence in camera.

76. See also Chapter 16, Committees, under Disclosure of evidence and documents.
77. Privilege Resolution 6(16).