Inquiry into Guidance for officers giving evidence and providing information
Generally, when a person provides information to the Senate, the provision of that information attracts the protection of parliamentary privilege. The current inquiry will look at sources of advice and guidance available to officers to assist them in understanding the nature and scope of that protection, and the extent of the Senate’s power to require information.
The inquiry is framed around three different situations in which information is provided by, or required of, officers.
Giving evidence to Senate committees
There are particular sources of advice for officers (or officials) giving evidence before committees (including government guidelines and the Senate’s own privilege resolutions). The interactions between officers and Senate committees are many and varied and continue to expand with the number and nature of committee inquiries being undertaken. Despite this, there has no comprehensive assessment of the adequacy of advice available to those officers since the government guidelines referred to were last updated in November 1989. The committee has also, from time to time, had concerns about the advice and directions of individual agencies in relation to interactions between officers and the parliament.
This inquiry allows the committee to consider the adequacy and applicability of those government guidelines and similar instructions, and to set out from its own perspective the established protections afforded to officers when giving such evidence.
The reasons for referring the matter in the previous parliament (available here) remain relevant.
Providing information to senators
The provision of information directly to senators raises different, but related, concerns. The application of parliamentary privilege to officers providing information to senators depends upon the circumstances of the particular case. For instance, the absolute immunity afforded by parliamentary privilege applies where the provision of information is ‘for purposes of or incidental to’ proceedings in the Senate or a committee. The committee is interested in examining the advice available to officers about the nature and limitations of this protection. This may entail some consideration of current advice for whistle-blowers, and of other protections beyond parliamentary privilege.
Scope of Senate information powers
The committee considers that requirements to provide information to the Senate and its committees (for instance, in response to orders for documents) are also poorly understood. This is especially the case where officers perceive a conflict between Senate orders and ‘secrecy’ provisions or other statutory limitations on disclosure.
The law of parliamentary privilege is not affected by statutory provisions which prevent or restrict the disclosure of information, unless those provisions alter that law by express words. The committee has often noted confusion about the relevant principles, most recently in its 144th report on a bill which purported to prevent the disclosure of information by officers to Senate committees.
The inquiry will look at the guidance available to officers and agencies about the extent of the Senate’s powers to require information, the protection afforded to officers in complying with those requirements and the limited operation of statutory provisions restricting disclosure.
Aim of the inquiry
The committee does not expect this inquiry to break new ground, but sees its value in improving awareness of the application of the law of parliamentary privilege to common situations involving the provision by officers of information to senators and to the Senate and its committees. One outcome of the inquiry might be the development of model guidelines which could be adopted by agencies to assist their officers in their interactions with the Senate.
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