47 Statutory bodies

The committee is of the opinion that, unless the Parliament has expressly provided otherwise, there is no area of expenditure of public funds by statutory authorities which cannot be examined by Parliament or its committees, and in this regard confirms the opinion expressed in the report to the Senate by Estimates Committee B, viz.: "The committee is of the opinion that whilst it may be argued that these bodies are not accountable through the responsible minister of state to Parliament for day-to-day operations, statutory corporations may be called to account by Parliament itself at any time and that there are no areas of expenditure of public funds where these corporations have a discretion to withhold details or explanations from Parliament or its committees unless the Parliament has expressly provided otherwise.".

(9 December 1971 J.846)

Note: Resolution of a committee of the whole agreed to on 2 December 1971, adopted by the Senate on 9 December 1971.

48 Statutory bodies - counsel's fees

The committee, having considered the report of Estimates Committee B, ... recommends ...

1. that the principle, espoused by the Senate in 1971 and 1974, that there are no areas of expenditure of public funds where statutory authorities have a discretion to withhold details or explanations from Parliament or its committees unless the Parliament has expressly provided otherwise, be reaffirmed;
2. the affirmation, in accordance with this principle, that the right to privacy of individual counsel accepting a brief on behalf of the Commonwealth for which money is appropriated by Parliament is supervened by such acceptance, subject to the reasons for the information being clearly defined and to the proviso that injudicious or unwarranted invasion of privacy is not the intention of the Parliament or its committees; and ...

(18 September 1980 J.1563)

Note: Resolution of a committee of the whole, adopted by the Senate on 18 September 1980. Part of a longer resolution dealing also with other matters.

49 Public funds

The Senate reaffirms the principle, stated previously in resolutions of 9 December 1971, 23 October 1974, 18 September 1980, 4 June 1984 and 29 May 1997, that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations from the Parliament or its committees unless the Parliament has expressly provided otherwise.

(25 June 1998 J.4079)

Note: Part of a longer resolution agreed to by means of an amendment to the motion that the Stevedoring Levy (Collection) Bill 1998 and the Stevedoring Levy (Imposition) Bill 1998 be read a second time.

50 Public funds – duties of officers

That the Senate—

1. reaffirms:
   1. the principle, stated previously in resolutions of 9 December 1971, 23 October 1974, 18 September 1980, 4 June 1984, 29 May 1997 and 25 June 1998, that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations from the Parliament or its committees unless the Parliament has expressly provided otherwise, and
   2. its expectation that officers, including agency heads, will appear before committees in fulfilment of their accountability obligations, whenever their presence is requested by committees;
2. in relation to the provision of exceptions to the general principle reaffirmed in paragraph (a), notes and reaffirms:
   1. Privilege Resolution 1(16) which provides that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy, and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister,
   2. the resolution of 16 July 1975, relating to the powers of the Senate and the accountability of witnesses, and requiring any claim to withhold information from the Senate to be based on an established ground, and
   3. the order of 13 May 2009 setting out the proper process for raising public interest immunity claims;
3. notes that:
   1. the statutory values which Australian Public Service agency heads and employees are required to uphold include a requirement to be open and accountable to the Australian community under the law and within the framework of ministerial responsibility, and
   2. the Constitutional framework of checks and balances under a separation of powers places the Parliament in prime position as the agent of accountability, representing the Australian people;
4. calls on the Government to issue a general instruction to all public service agency heads and employees about their duty to cooperate with parliamentary committee inquiries, including by formalising the revised guidelines for official witnesses appearing before parliamentary committees (last issued in 1989), a revised draft of which was provided to the Committee of Privileges in 2012 and considered in its 153rd Report; and
5. requires:
   1. the chairs of legislation committees considering estimates to draw the provisions of paragraphs (a) and (b) of this resolution to the attention of any witness who declines to provide information to a committee on any basis other than those specified, and
   2. the Clerk to draw this resolution, and the resolutions referred to in paragraph (b), to the attention of the heads of all agencies appearing before legislation committees, prior to each round of estimates.

(25 June 2014 J.1005)

51 Inquiry powers and Freedom of Information Act provisions

That the Senate—

1. notes the frequency with which freedom of information legislation is invoked to withhold information from senators and the Senate, not only by reference to grounds of exemption in the legislation but also apparently on the basis that an answer will not be provided if a Freedom of Information (FOI) request has been lodged for the same information;
2. recalls the observations of the Procedure Committee in its Third Report of 1992 that:
   1. there is no basis in law for the application of the FOI Act to the production of documents to a House,
   2. if a minister were to regard all of the exemption provisions in the FOI Act as grounds on which to claim a privilege against disclosure of information to a House, this would considerably expand the grounds of executive privilege hitherto claimed, and
   3. the use of the provisions of the FOI Act as a checklist of grounds for non-disclosure does not relieve a minister of the responsibility of carefully considering whether the minister should seek to withhold documents from a House, or from considering the question in the context of the importance of the matters under examination by the House;
3. resolves that the same principles apply to the provision of information to committees in response to questions asked by senators, which require the same careful consideration by ministers; and
4. declares that declining to provide documents or answer questions on the basis that an FOI request has been made for the same information is an unacceptable response, is not supported by the FOI Act and shows a profound lack of respect for the Senate and its committees.

(25 June 2014 J.1003)

52 Australian Broadcasting Corporation – obligation to cooperate

The Senate ...

1. agrees with the committee's conclusion that the Australian Broadcasting Corporation's (ABC) approach to the committee's inquiry was incorrect and that the ABC and any summoned officers of the ABC should have answered the committee's questions;
2. asserts that the ABC and any other witnesses before Senate committees have an obligation to co-operate and to answer questions within the terms of reference of Senate standing committees and Senate estimates committees alike; ...

(19 November 1986 J.1424)

Note: Part of a longer resolution taking note of a report by the Standing Committee on Education and the Arts.

53 Training – accountability and privilege

The Senate is of the opinion that all heads of departments and other agencies, statutory office holders and Senior Executive Service officers should be required, as part of their duties, to undertake study of the principles governing the operation of Parliament, and the accountability of their departments, agencies and authorities to the Houses of Parliament and their committees, with particular reference to the rights and responsibilities of, and protection afforded to, witnesses before parliamentary committees.

(21 October 1993 J.684, reaffirmed 1 December 1998 with adoption of Committee of Privileges 73rd report, paragraph 2.42, J.226)

That senior officers in the Department of Parliamentary Services involved in the administration of the CCTV system and other systems managed on behalf of the Parliament undertake some structured training to acquaint themselves with the principles of privilege.

(12 February 2015 J.2184)

Note: Part of a longer resolution adopting the recommendations of the 160th report of the Committee of Privileges.

53A Standing Committee for the Scrutiny of Delegated Legislation – Engagement with ministers and agencies

That the Senate—

1. notes that:
   1. an essential function of the Senate is to scrutinise the law-making power that the Parliament has delegated to the executive and to hold the executive to account in this regard,
   2. since 1932 the Standing Committee for the Scrutiny of Delegated Legislation has operated in a bipartisan and consensual manner to support the Senate in this role by assessing all disallowable delegated legislation against its longstanding scrutiny principles, which were most recently endorsed by the Senate in November 2019, and
   3. to effectively fulfil its mandate the committee relies on the constructive and timely engagement of ministers and agencies on the technical scrutiny concerns raised by the committee;
2. calls on all ministers and agencies to:
   1. respond to the committee’s requests for information in relation to its technical scrutiny concerns within the timeframes set by the committee, and
   2. implement undertakings made to the committee in a timely manner; and
3. calls on all shadow ministers to actively consider comments made by the committee in relation to delegated legislation made in their portfolios.

(23 February 2021 J.3148)

53B Delegated legislation – Disallowance and sunsetting

1. That the Senate notes:
   1. the Constitution vests the legislative power of the Commonwealth in the Federal Parliament;
   2. if the Parliament is to satisfy this constitutionally mandated role, it must have the ability to scrutinise all legislation made by the executive; and
   3. exemptions from disallowance and sunsetting undermine the ability of the Parliament, and particularly the Senate, to undertake this scrutiny.
2. That the Senate resolves:
   1. delegated legislation should be subject to disallowance and sunsetting to permit appropriate parliamentary scrutiny and oversight unless there are exceptional circumstances; and
   2. any claim that circumstances justify exemption from disallowance and sunsetting will be subjected to rigorous scrutiny with the expectation that the claim will only be justified in rare cases.

(16 June 2021 J.3581)