Government guidelines
for official witnesses before Parliamentary Committees and related matters,
November 1989 (EXTRACT)
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Introduction
The current
Government Guidelines for Official Witnesses before Parliamentary Committees
were tabled in the Senate on 30 November
1989. The guidelines were revised to take into account experience
in interpreting and applying the guidelines on the occasions when official
witnesses have appeared before parliamentary committees, and the adoption by
the Senate of parliamentary privilege resolutions on 25 February 1988. The guidelines are designed
to assist public officials in the preparation of submissions and the giving of
oral evidence to parliamentary committees.
This brochure brings together
those components of the guidelines that provide an overview of the matters to
be kept in mind by public officials when appearing before parliamentary
committees.
Accountability
1.1In the Australian
system of parliamentary government, and consistent with the traditional
understanding of ministerial responsibility, the public and parliamentary
advocacy and defence of government policies and administration has
traditionally been, and should remain, the preserve of Ministers, not
officials. The duty of the public servant is to assist ministers to fulfil
their accountability obligations by providing full and accurate information to
the Parliament about the factual and technical background to policies and their
administration. The guidelines are therefore aimed at encouraging the freest possible
flow of such information between the public service, the Parliament and the
public.
Preparation of written material
Matters of policy
2.15 Such submissions:
(a) should not advocate,
defend or canvass the merits of government policies (including policies of
previous Commonwealth governments, or State or foreign governments);
(b) may describe those
policies and the administrative arrangements and procedures involved in
implementing them;
(c) should not identify
considerations leading to government decisions or possible decisions, in areas
of any sensitivity, unless those considerations have already been made public
or the Minister authorises the department to identify them; and
(d) may, after consultation with the Minister,
and especially when the Government is encouraging public discussion of issues,
set out policy options and list the main advantages and disadvantages, but
should not reflect on the merits of any judgement the Government may have made
on those options or otherwise promote a particular policy viewpoint.
2.16 In relation to the
matters in para 2.15(a) above, the proper course is for Ministers to make
written submissions, to appear personally, to arrange for Ministers
representing them to appear personally, or to invite committees to submit
questions on policy issues in writing.
2.17 In relation to para
2.15(c), the normal course is for Ministers to canvass the material in these
categories, but if departments are to canvass such material, they should
clearly bring it to the Minister's attention when seeking clearance for the
submission.
Conduct during hearings
General principles
2.19As described above
(para 1.1), it is intended, subject to the application of certain necessary
principles, that there be the freest possible flow of information between the
public service, the Parliament and the public. To this end, officials should be
open with committees and if unable or unwilling to answer questions or provide
information should say so, and give reasons. It is also, of course, incumbent on
officials to maintain the highest standards of courtesy in their dealings with
parliamentary committees.
Limitations upon officials' evidence
2.22There are three main
areas in which officials need to be alert to the possibility that they may not
be able to provide committees with all the information they seek, or may need
to request restrictions on the provision of such information.
These are:
(a)matters of policy;
(b)public interest immunity; and
(c)confidential material where in camera
evidence is desirable.
The conduct of official witnesses in relation to these areas is
described in paras 2.25 - 2.38 of the Guidelines.
Clarification or amplification of
evidence
2.23In addition,
committees may occasionally seek information which may properly be given, but
where officials are unsure of the facts, or do not have the information to
hand. In such cases witnesses should qualify their answers as necessary so as
to avoid misleading the committee, and, if appropriate, should give
undertakings to provide further clarifying information. It is particularly
important to submit such further material without delay.
Questions about other
departments' responsibilities
2.24It is also important
that witnesses should take care not to intrude into responsibilities of other
departments and agencies... Where a question falls within the administration of
another department or agency, an official witness may request that it be
directed to that department or agency or be deferred until that department or
agency is consulted.
Protection of submissions and witnesses
Parliamentary privilege
2.39The act of submitting
a document to a parliamentary committee is protected by parliamentary
privilege: Parliamentary Privileges Act 1987, paragraph 16(2)(b).
Any publication of the submission other than to the committee, however, is
protected by parliamentary privilege only if that publication takes place by or
pursuant to the order of the committee, in which case the content of the
document is also protected: paragraph
16(2)(d) of the Act. The protection of parliamentary privilege means that a
person cannot be sued or prosecuted in respect of the act or the material
protected, nor can that act or material be used against a person in legal
proceedings. The unauthorised disclosure of a document or evidence submitted to
a parliamentary committee, that is, a disclosure not authorised by the
committee or the House concerned, may be treated as a criminal offence under
section 13 of the Act or as a contempt (r.6.16).
Contempt of the Parliament
2.40It is an offence
against s.12(1) of the Parliamentary Privileges Act for a person, by fraud,
intimidation, force or threat, by the offer or promise of any inducement or
benefit, or by other improper means, to influence another person in respect of
any evidence given or to be given before a House of the Parliament or a
committee, or to induce another person to refrain from giving any such
evidence. It is also an offence, under s.12(2) of that Act, for a person to
inflict any penalty or injury upon, or deprive another person of any benefit,
any person on account of the giving or proposed giving of any evidence, or of
any evidence given or to be given, before a House or a Committee. It should be
noted that the existence of s.12 of the Parliamentary Privileges Act does not
prevent imposition by a House of a penalty (see s.12(3)). In particular, those
kinds of conduct are also punishable as a contempt by the Senate (r.6.10 and
r.6.11 respectively) or the House of Representatives.
Correction of Evidence
2.44After perusing the
record of their evidence, official witnesses should propose for the committee's
consideration any necessary corrections for incorporation or noting in the
published record. Where these affect the substance of evidence previously
given, it may be necessary to seek the agreement of the committee on the way in
which the correction should be made, e.g. by tendering a subsequent statement.
The Senate resolutions provide that "Reasonable opportunity shall be
afforded to witnesses to make corrections of errors of transcription in the
transcript of their evidence and to put before a committee additional material
supplementary to their evidence" (r.1.17).
2.45Also, if a witness
believes, after perusing the record, that he or she has omitted some relevant
evidence, the witness should, having consulted with the Minister (or
departmental Secretary), seek leave of the committee to lodge a supplementary
statement or to give further oral evidence. All supplementary written material
(authorised in accordance with these guidelines) should be forwarded to the
committee secretary.
Copies of the guidelines are
available from your departments.
Other reference documents
Australian Securities Commission Act 1990
National Crime Authority Act 1984
Freedom of Information Act 1982
Parliamentary Privileges Act 1987
This information has been taken from the Government Guidelines for
Official Witnesses before Parliamentary Committees and Related Matters,
November 1989. For further advice on these matters please contact the Senior
Clerk of Committees on (02) 6277 3506, Fax: (02) 6277 3899.
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