Government guidelines for official witnesses before Parliamentary committees and related matters - November 1989
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INTRODUCTION
Accountability
1.1 In 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.
Scope of guidelines
1.2 The guidelines apply
primarily to the preparation of submissions and the giving of evidence to
parliamentary committees by officials, although sections 3-6 also discuss their
relevance to contexts outside parliamentary committees, including party
committees, Royal Commissions, individual Members of Parliament, speeches,
public inquiries and court appearances.
1.3 The previous version of the
guidelines was tabled in the Parliament in August 1984. Changes have been made
to take account of the Senate Parliamentary Privilege Resolutions of 25 February 1988 (see Appendix) and recent experience with the
appearance of witnesses before parliamentary committees.
PARLIAMENTARY COMMITTEES
Application of Guidelines
2.1 This section is designed to
assist departmental officials, statutory office holders and the staff of
statutory authorities appearing before parliamentary committees, by informing
them of the principles they are required by the Government to follow. It is
recognised, however, that the role and nature of some statutory authorities
will require the selective application of these guidelines (see paragraph
2.49).
Parliamentary rules of procedure
2.2 This section also takes
into account the Senate Parliamentary Privilege Resolutions of 25 February 1988 which include procedures to be observed by Senate
committees in their dealings with witnesses. (References to the Senate
resolutions in these guidelines appear as r.1.1; r.1.6 etc.) At the time of
tabling these guidelines, the House of Representatives had not dealt with the
committee procedures which have been proposed by the Standing Committee on
Procedure. These are broadly similar, with some additions, to the procedures
adopted by the Senate.
2.3 These guidelines should,
nonetheless, be read in conjunction with the Senate Parliamentary Privilege
Resolutions, the House of Representatives Standing Committee on Procedure's
Report on Committee Procedures for Dealing with Witnesses dated 4 April 1989
and the Parliamentary Privileges Act 1987, particularly sections 13 and
16.
Inquiries into
administrative matters
2.4 Where a committee's inquiry
is directed towards the examination of departmental administration and
practice, it is for the departmental Secretary, with the general consent of the
relevant Minister, to use his or her discretion as to the extent to which
aspects of these guidelines, such as the clearing of written evidence and the
selection of witnesses, are to be followed. In this context a witness should
also be aware of the provisions of s.12 of the Parliamentary Privileges Act
(see para 2.40).
Committees dealing with
individual conduct
2.5 Where a committee is
inquiring into the personal actions of a Minister (or official) and seeks
information from officials, there may be circumstances where it is not
appropriate for the requirements set out in para 2.14 for clearance of evidence
to be followed. (Note also that the Senate resolutions provide that a witness
may apply to have assistance from counsel during the course of a hearing
(r.1.14 and r.1.15). See para 2.42.
Joint Statutory Committees
2.6 The Public Works
Committee Act 1969, the Public Accounts Committee Act 1951 and the Australian
Security Intelligence Organisation Act 1979 provide for the summoning of
witnesses and raise some special considerations. For example, s.23 of the
Public Works Committee Act makes special provision for hearing of evidence on
confidential matters and the Public Accounts Committee Act and the Public Works
Committee Act have special provisions relating, among other things, to
self-incriminating evidence (see ss. 19 and 25, respectively). In these and
similar cases, the special provisions of the relevant Acts take precedence.
Preliminaries to an inquiry
Requests for attendance
2.7 Generally requests for an
official to attend a committee hearing in an official capacity, or to provide
material to it, are made through the relevant Minister. There are, however,
exceptions - for example the Estimates Committees and the Public Accounts
Committee (see para 2.4). (Note also that the Senate resolutions provide that a
witness will be invited to give evidence or produce documents, but may be
summoned to do so if circumstances warrant
such an order (r.1.1 and r.1.2).)
Choice of witnesses
2.8 A Minister may delegate to
the departmental Secretary the responsibility of deciding the official(s) most
appropriate to provide the information sought by the committee. It is essential
that the official(s) selected should have sufficient responsibility or be
sufficiently close to the particular work area to be able to satisfy the
committee's requirements.
Preparation of witnesses
2.9 It is also essential that
all witnesses are thoroughly prepared for hearings. Such preparation should
include ensuring familiarity with probable lines of questioning, either by
discussion with the committee secretariat or, in the case of Estimates and
similar inquiries, by ascertaining from the committee secretary or from Hansard
and other sources the issues that are likely to be of interest to committee
members. Officers who have not previously attended committee hearings should
receive briefing on the requirements, and senior officers should satisfy
themselves, so far as possible, that all witnesses are capable of giving
evidence creditably.
Consultation with Ministers
2.10 As appropriate, witnesses
should consult the Minister before a hearing and, if required, the Minister
representing in the other House. Examples of the need for such consultation
would be in relation to possible claims that it would be in the public interest
to withhold certain documents or oral evidence, or requests for the hearing of
evidence in camera (see paras 2.22 to 2.38).
Senate resolutions
2.11 Officers appearing before
Senate Committees should also make themselves aware of the Senate resolutions
relating to the rights of witnesses (r.1.1-r.1.18) and matters which may be
treated as a contempt of the Parliament (r.3 and r.6.1-r.6.16)
Preparation of written
material
2.12 In the normal course,
departments should provide a written statement on which subsequent oral
evidence will be based (see r.1.4). In addition, where a committee asks written
questions, written replies should be provided. All written material (authorised
in accordance with these guidelines) should be sent to the committee secretary.
2.13 When the interests of
several departments are involved, adequate consultation is to take place in
preparing material and making arrangements for witnesses to attend.
Clearance with Minister
2.14 Submissions should be
cleared to appropriate levels within the department, and normally with the
Minister, in accordance with arrangements approved by the Minister(s) concerned.
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.
Requests for more time to prepare evidence
2.18 The Minister (or the
department on his or her behalf) may ask the committee for more time to prepare
evidence, if the notice is considered insufficient. The Senate resolutions
provide for a witness to be given reasonable notice and an indication of the
matters expected to be dealt with (r.1.3).
Conduct during hearings
General Principles
2.19 As 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.
2.20 These guidelines, and
particularly paras 2.15 and 2.32-2.36, should be read in the context of the Freedom
of Information Act 1982 (the FOI Act). The Act establishes minimum
standards of disclosure of documents held by the Commonwealth. It is not,
however, a code governing release of documents or information generally as
there are many other means of obtaining information from Government (e.g. press
releases, annual reports, etc.). Any material which would not be exempt under
this legislation should (with the knowledge of the Minister in sensitive cases
or where the Minister has a particular interest or has been involved) be
produced or given, on request, to a parliamentary committee. Moreover, it may
be in the public interest to provide to the committee a document or information
for which exemption would normally be claimed under the Act. The exemptions in
the Act should therefore be viewed from the perspective of the proper role and
functions of the Parliament.
2.21 So far as relevant, the
guidelines in paras 2.12-2.18 above relating to written material apply also to
oral evidence.
Limitations upon officials'
evidence
2.22 There 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 detail below (paras 2.25-2.38).
Clarification or amplification of evidence
2.23 In 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
2.24 It is also important that
witnesses should take care not to intrude into responsibilities of other
departments and agencies (see also para 2.13). 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.
Matters of policy
2.25 The role of an official
witness is not to comment on policy but to speak to any statement provided to
the committee and to provide factual and background material to assist
understanding of the issues involved. The detailed rules applying to written
submissions (para 2.15) also apply to oral evidence. Note, however, that such
restrictions do not necessarily apply to statutory officers (see para 2.49).
2.26 The Senate resolutions
provide 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" (r.1.16). The resolutions also prescribe the
procedure by which a witness may object to answering "any question put to
the witness" on "any ground" (r.1.10). This would include the
ground that the question requires the witness to give an opinion on a matter of
policy contrary to r.1.16. In such a situation an officer may ask the person
chairing the committee to consider whether questions which fall within the
parameters of policy positions (outlined in para 2.15) are in order. Moreover,
the resolutions provide scope for a witness to make a statement about matters
of concern to the witness in pre-hearing discussions before appearing at the
committee hearing (r.1.5).
2.27 If an official witness is directed
to answer a "policy" question, and has not (in line with para 2.17)
previously cleared the matter with the Minister, the officer should ask to be
allowed to defer the answer until such clearance is obtained. Alternatively, it
may be appropriate for the witness to refer to the written material provided to
the committee and offer, if the committee wishes, to seek elaboration from the
Minister; or to request that the answer to a particular question be reserved
for submission in writing.
Public interest immunity
Claims to be made by
Ministers
2.28 Claims that information should be withheld from disclosure on
grounds of public interest (public interest immunity) should only be made by
Ministers (normally the responsible Minister in consultation with the
Attorney-General and the Prime Minister).
2.29 As far as practicable,
decisions to claim public interest immunity should take place before hearings,
so that the necessary documentation can be produced at the time. The normal
means of claiming public interest immunity is by way of a letter from the
Minister to the committee chairman. The Attorney-General's Department should be
consulted on appropriateness of the claim in the particular circumstances and
the method of making the claim.
2.30 As a matter of practice,
before making a claim of public interest immunity, a Minister might explore
with a committee the possibility of providing the information in a form or
under conditions which would not give rise to a need for the claim (including
on a confidential basis or in camera, see paras 2.35-2.36).
Matters arising during
hearing
2.31 If an official witness, when
giving evidence to a committee, believes that circumstances have arisen to
Justify a claim of public interest immunity, the official should request a
postponement of the evidence, or of the relevant part of the evidence, until
the Minister can be consulted.
Scope of public interest
immunity
2.32 Documents - or oral evidence
- which could form the basis of a claim of public interest immunity may include
matters falling into the following categories that coincide with some exemption
provisions of the FOI Act:
(a) material
the disclosure of which could reasonably be expected to cause damage to:
(i) national
security, defence, or international relations; or
(ii) relations
with the States;
including
disclosure of documents or information obtained in confidence from other
governments;
(b) material
disclosing any deliberation or decision of the Cabinet, other than a decision
that has been officially published, or purely factual material the disclosure
of which would not reveal a decision or deliberation not officially published;
(c) material
disclosing any deliberation of or advice to the Executive Council, other than a
document by which an act of the Governor-General in Council was officially
published;
(d) material
disclosing matters in the nature of, or relating to, opinion, advice or
recommendation obtained, prepared or recorded, or consultation or deliberation
that has taken place in the course of, or for the purpose of, the deliberative
processes involved in the functions of the Government where disclosure would
be contrary to the public interest;
(e) material
relating to law enforcement or protection of public safety which would, or
could reasonably be expected to:
(i) prejudice
the investigation of a possible breach of the law or the enforcement of the law
in a particular instance;
(ii) disclose,
or enable a person to ascertain the existence or identity of a confidential
source or information, in relation to the enforcement or administration of the
law;
(iii) endanger
the life or physical safety of any person;
(iv) prejudice
the fair trial of a person or the impartial adjudication of a particular case;
(v) disclose
lawful methods or procedures for preventing, detecting, investigating, or
dealing with matters arising out of, breaches or evasions of the law the
disclosure of which would, or would be reasonably likely to, prejudice the
effectiveness of those methods or procedures; or
(vi) prejudice
the maintenance or enforcement of lawful methods for the protection of public
safety; and
(f) material
subject to legal professional privilege.
It must be emphasised that the provisions of the FOI Act have no actual
application as such to parliamentary inquiries, but are merely a general guide
to the grounds on which a parliamentary inquiry may be asked not to press for
particular information, and that the public interest in providing information
to a parliamentary inquiry may override any particular ground for not disclosing
information. For a more detailed understanding of the above exemption
provisions, reference should be made to the FOI Act and to separate guidelines
on its operation issued by the Attorney-General's Department.
2.33 In
addition the following considerations may affect a decision whether to make
documents or information available:
(a) secrecy
provisions of Acts: Attorney-General's Department should be consulted when
occasions involving such provisions arise; and
(b) court
orders or subjudice issues : where the provision of information would appear to
be restricted by a court order, or where the question of possible prejudice to
court proceedings could arise, the Attorney-General's Department should be
consulted although decisions on the application of the subjudice rule are for
the committee to determine, not witnesses.
Classified documents
2.34 Documents, and oral
information relating to documents, having a national security classification of
'confidential', 'secret' or 'top secret' would normally be within one of the
categories in para 2.32, particularly para 2.32(a). Before producing a document
bearing such a classification, an official witness should seek declassification
of the document. (Note that it does not follow that documents without a formal
security classification may not be the subject of a claim of immunity. Nor does
it follow that classified documents may not in any circumstances be produced.
Each document should be considered on its merits and, where classified, in
consultation with the originator.)
In camera evidence
2.35 There may be occasions when
a Minister (or, on his or her behalf, the departmental Secretary) would wish,
on balancing the public interests involved, to raise with the committee the
possibility of an official producing documents or giving oral evidence in
camera, and on the basis that the information be not disclosed or published
except with the Minister's consent (see r.1.7, r.1.8 and r.2.7). It should be
noted that Estimates Committees have no power to take evidence in camera or to
treat documents submitted to them as in camera evidence.
Matters arising during
hearing
2.36 If, when giving evidence to
a committee, an official witness believes that circumstances have arisen to
justify requesting that evidence be heard in camera, the official should make
such a request if the possibility has been foreshadowed with the Minister or
should ask for the postponement of the evidence or the relevant part of the
evidence until the Minister can be consulted. (The Senate resolutions provide
that "A witness shall be offered, before giving evidence, the opportunity
to make application, before or during the hearing of the witness's evidence,
for any or all of the witness's evidence to be heard in private session, and
shall be invited to give reasons for any such application. If the application
is not granted, the witness shall be notified of reasons for the
decision." (See r.1.7 and also r.1.8 relating to the publication of
evidence given in camera.)
2.37 These circumstances might
include cases where:
(a) although a claim of public
interest immunity could be justified, the Minister considers that the balance
of public interest lies in making information available to the committee;
(b) while a claim of immunity
may not be appropriate, other social considerations justify the committee being
asked to take evidence privately. Examples, which parallel other exemption
provisions in Part IV of the FOI Act, are evidence the public disclosure of
which would:
(i) affect
law enforcement or protection of public safety;
(ii) have
a substantial adverse effect on financial or property interests of the
Commonwealth;
(iii) prejudice
the attainment of the objects or effectiveness of procedures or methods for the
conduct of tests, examinations or audits of a Commonwealth agency;
(iv) have
a substantial adverse effect on the management or assessment of personnel, or
on the proper and efficient conduct of the operations of a Commonwealth agency
including the conduct by the Commonwealth of industrial relations;
(v) unreasonably
disclose information relating to the personal affairs of any person. Note also
that the Senate resolutions provide that a committee may consider taking in
camera evidence reflecting adversely on a person (see r.1.1-r.1.13, r.2.1-r.2.3).
The Privacy Act 1988, in particular Part III which explains Information
Privacy Principles, is also relevant;
(vi) reveal
business affairs, including trade secrets or other commercially sensitive
information;
(vii) reasonably
be expected to have a substantial adverse effect on the management of the
economy or on the conduct of business generally; or
(viii) disclose
material obtained in confidence;
(c) similar
or identical evidence has been previously given in camera to other hearings of
the committee or other committees of the Parliament and has not been made
public.
Committee requests for evidence off the record
2.38 An official who is asked by
a committee to give evidence 'off the record', unless this refers to evidence
given in camera or evidence of which there is to be no transcript taken, should
appreciate that technically there is no such category as 'off the record'
evidence which has any special protection or status. In the event an official
is asked to give evidence 'off the record', however, he/she should request a
postponement until the Minister can be consulted, unless the possibility has
been clearly foreshadowed with the Minister.
Protection of submissions
and witnesses
Parliamentary privilege
2.39 The 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
2.40 It 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.
Self incrimination
2.41 In general a witness cannot
refuse to answer a question or produce documents on the ground that the answer
to the question or the production of documents might incriminate the witness.
The exceptions to this are witnesses appearing before the Public Accounts
Committee or the Public Works Committee (see s.19 of the Public Accounts
Committee Act, s.25 of the Public Works Committee Act and para 2.6). In such
cases parliamentary privilege protects a witness against only that evidence
itself being used against the witness outside the Parliament; (for example, as
evidence in proceedings before the courts). A witness may request the committee
to take the evidence in camera in those circumstances (see r.1.7 and r.1.8).
The Senate resolutions also outline a procedure for considering claims by a
witness that he or she not answer a question on grounds of self-incrimination
(r.1.10 and r.2.5).
Access to counsel
2.42 A witness may apply to have assistance from counsel in the course
of a hearing. In considering such an application, a committee shall have regard
to the need for the witness to be accompanied by counsel to ensure the proper
protection of the witness. If an application is not granted, the witness shall
be notified of reasons for that decision (see r.1.14). If an application is
granted, the witness shall be given reasonable opportunity to consult general counsel
during a committee hearing (see r.1.15).
2.43 In normal circumstances
officials should not need counsel when appearing before parliamentary
committees. Should the need arise, however, the Attorney-General's Department
should be consulted.
Correction of Evidence
2.44 After 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).
2.45 Also, 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.
Publication of evidence
2.46 Evidence provided to
committees in a public hearing is normally published in the form of a Hansard
record.
2.47 Authority for the
publication of evidence, whether taken in public or in camera, is vested in
Parliamentary committees by virtue of s.2(2) of the Parliamentary Papers Act
1908. Evidence taken in camera is confidential and its publication without
a committee's consent constitutes a contempt (see s.13 of the Parliamentary
Privileges Act 1987 and r.6.16.). Note, too, that s.46 of the FOI Act
provides for documents to be exempt if disclosure would infringe parliamentary
privilege.
Proposals to publish in
camera evidence
2.48 If a committee seeks an
official witness's concurrence to publish the witness's in camera evidence, he
or she should ask the committee to delay the decision to enable the witness to
consult the Minister or the departmental Secretary. A committee will not
normally authorise the publication of in camera evidence without the
concurrence of the witness, although such concurrence is not a binding
requirement (see r.1.8).
Official witnesses from
statutory authorities
2.49 Members of authorities which
have statutory public information and education roles clearly are able to
express views on the policy responsibilities of their authorities. However,
care should be taken to avoid taking partisan positions on matters of political
controversy. In other respects these guidelines should be followed as far as is
relevant including in relation to claims of public interest immunity (see para
2.28).
Appearance in a 'personal'
capacity
2.50 There is no intention for
there to be any restriction on officers appearing before parliamentary
committees in their 'personal' capacity. An officer so called, however, should
pay heed to the guidelines relating to public comment contained in the Guidelines
on Official Conduct of Commonwealth Public Servants (July 1987). As the
guidelines emphasise, it is particularly important for senior officials to give
careful consideration to the impact, by virtue of their positions, of any
comment they might make. Indeed heads of agencies and other very senior
officers need to consider carefully whether, in particular cases, it is
possible for them realistically to claim to appear in a 'personal' rather than
an 'official' capacity, particularly if they are likely to be asked to comment
on matters which fall within or impinge on their area of responsibility. An
officer who is appearing before a committee in a personal capacity should make
it clear to the committee that the officer's appearance is not in an
official capacity.
PARTY COMMITTEES
3.1 It is quite appropriate for
officials, subject to ministerial authorisation, to make themselves available
to brief party committees to assist them in understanding the technical and
factual background to government policies and proposals, including details
and/or explanations of proposed legislation. Departmental officials will not be
expected, or authorised, to express opinions on matters of a policy or party
political nature (see paras 2.15 and 2.25). The guidelines for submissions to
and appearances before parliamentary committees apply to briefing of party
committees, subject to paras 3.2-3.7 below.
3.2 Committee requests for such
briefing should be directed to the Minister concerned. It will also be open to
Ministers to initiate proposals for briefing of committees, where they consider
this to be desirable.
3.3 Where considered
appropriate or desirable, Ministers may elect to be present at discussions with
Government party committees, to deal with questions of a policy or party
political nature.
3.4 Where the Minister does not
attend the committee proceedings, officials should keep the Minister informed
of the nature of the discussions and of any matters the officials could not
resolve to the committee's satisfaction.
3.5 Party committees do not
have the powers or privileges of parliamentary committees. Consequently
officials appearing before them do not have the protection afforded to
witnesses appearing before parliamentary committees (see paras 2.39 and 2.41).
Party committee hearings, however, are not generally held in public.
INDIVIDUAL MEMBERS OF PARLIAMENT
4.1 Members of Parliament
usually request information through the responsible Minister, but direct
approaches to officials for routine factual information, particularly on
constituency matters, are also traditional and appropriate. When a request
amounts to no more than a request for readily available factual information,
the information should obviously be provided, although depending on the nature
or significance of a request, an official may judge it appropriate to inform
the departmental Secretary of the request and response. Ministers should be
informed of any matter which is likely to involve them.
4.2 There may be other
occasions where a Member of Parliament's request raises sensitive issues. For
example, where expressions of opinion are sought on government policies or
alternative policies, as distinct from explanation of existing policies.
Officials will not be expected or authorised to express opinions on government
policies, policy options or matters of a party political nature. Information
provided may, however, include details of administrative arrangements and
procedures involved in the implementation of approved policies or legislation.
4.3 If a Member of Parliament
seeks expressions of opinion on government policies or policy options, it would
be appropriate to suggest that the Member pursue the matter with the Minister.
Similar action would be appropriate if a request raised other issues of a
sensitive nature, or where the answering of a request would necessitate the use
of substantial resources of the department or authority.
4.4 Care should be taken to
avoid unauthorised disclosure of classified or otherwise confidential
information - for example, where a breach of personal or commercial privacy
could be involved.
4.5 Where an official considers
that the terms of a request would require going beyond the authorised scope of
the above arrangements, the official should so indicate to the Member, and
would be at liberty to raise the matter with the departmental Secretary and the
Minister and, if desired, with the Public Service Commission.
Special arrangements for
pre-election consultation with officials by the Opposition
4.6 On 5 June 1987 the
Government tabled in the Parliament specific guidelines relating to
consultation by the Opposition with officials during the pre-election period.
These guidelines, which are almost identical with guidelines first tabled on 9
December 1976, are as follows:
(i) The
pre-election period is to date from three months prior to the expiry of the House
of Representatives or the date of announcement of the House of Representatives
election, whichever date comes first. It does not apply in respect of Senate
elections only.
(ii) Under
the special arrangement, shadow Ministers may be given approval to have
discussions with appropriate officials of government departments. Party leaders
may have other Members of Parliament or their staff members present. A
departmental Secretary may have other officials present.
(iii) The
procedure will be initiated by the relevant Opposition spokesperson making a
request of the Minister concerned who is to notify the Prime Minister of the
request and whether it has been agreed.
(iv) The
discussions will be at the initiative of the non-government parties, not
officials. Officials will inform their Ministers when the discussions are
taking place.
(v) Officials
will not be authorised to discuss government policies or to give opinions on
matters of a party political nature. The subject matter of the discussions
would relate to the machinery of government and administration. The discussions
may include the administrative and technical practicalities and procedures
involved in implementation of policies proposed by the non-government parties.
If the Opposition representatives raised matters which, in the judgement of the
officials, sought information on government policies or sought expressions of
opinion on alternative policies, the officials would suggest that the matter be
raised with the Minister.
(vi) The
detailed substance of the discussions will be confidential but Ministers will
be entitled to seek from officials general information on whether the
discussions kept within the agreed purposes.
APPEARANCES BEFORE THE BAR OF A HOUSE OF THE PARLIAMENT
5.1 It would be only in
exceptional circumstances that an official would be summoned to the bar of a
House of the Parliament and each case would need individual consideration.
5.2 As a general rule, it would
be appropriate for these guidelines to be followed insofar as they apply to the
particular circumstances.
NON-PARLIAMENTARY PUBLIC INQUIRIES (INCLUDING ROYAL COMMISSIONS) AND
SPEECHES
6.1 The guidelines for
submissions to and appearances before parliamentary committees generally apply
to submissions to and appearances before other public inquiries, and to the
preparation and presentation of speeches by officials in their official
capacity.
Speeches
6.2 Subject to these
guidelines, officers, other than those employed in areas where national
security or other reasons demand confidentiality, should be prepared to make
themselves available to attend and address conferences in their areas of
professional expertise. Speeches in such circumstances should aim to provide
the necessary factual information and analytical material to promote informed
public discussion. Such activities should be regarded as part of the normal
interchange of information between government and community groups.
6.3 The Minister may decide to authorise the departmental Secretary
to clear material for speeches. Subject to ministerial guidance, the Secretary
is responsible for instituting appropriate departmental rules. Officials will
often also find it necessary to speak in their official capacity without having
the opportunity to clear the substance of their comments (for example, in open
discussions at public seminars). In such cases officials should heed the rules
laid down by the departmental Secretary and the Guidelines on Official
Conduct of Commonwealth Public Servants concerning public comment by public
servants. In particular, they should avoid taking partisan positions on policy
issues or matters of public controversy.
Foreign Service
6.4 Heads of Australian
diplomatic or consular posts and senior officials serving abroad have the
responsibility in countries to which they are accredited to explain, advocate
or defend the Government's international and domestic policies through public
speeches, conferences, media enquiries, appearances before host government
parliamentary committees, etc. It may not always be possible for officers to
obtain ministerial or departmental clearance. It is expected, however, that
public comment will be consistent with authorised policies in all respects.
Royal Commissions and bodies
with Royal Commission powers
6.5 Officials appearing before
Royal Commissions established by the Commonwealth should take note of the
provisions of the Royal Commissions Act 1902. The categories of evidence
enumerated in para 2.32 above are also appropriate to claims of public interest
immunity before a Commonwealth Royal Commission. The circumstances in which the
Commission might be asked to hear evidence in camera are also likely to be the
same as those listed at para 2.37 above.
6.6 An official appearing
before a Commonwealth Royal Commission or similar body may not refuse to answer
a question (or to produce a document or other item) on the ground that the
giving of the answer or the production of the document or item might tend to be
self-incriminatory. This rule does not apply where an official has been charged
with an offence and the charge has not been finally dealt with by a court or
otherwise disposed of.
6.7 Where guidance is required
regarding counsel for officials - including about legal aid - advice should be
sought from the Attorney-General's Department.
State inquiries
(parliamentary and other)
6.8 Where additional guidance
is required regarding appearances before State inquiries, advice should be
sought from the Attorney-General's Department. Such advice should also be
sought where a claim of public interest immunity may be under consideration.
Courts and tribunals
6.9 Where officials require
further guidance or counsel in respect of their appearance before and giving
evidence to courts of law and tribunals - particularly concerning possible
claims of public interest immunity - advice should be sought from the
Attorney-General's Department.