Chapter
2 - Parliamentary Privilege: immunities and powers of the Senate
Power
to conduct inquiries
Each House of the
Parliament has the power to require the attendance of persons and production of
documents and to take evidence under oath. This power supports one of the major
functions of the Houses: that of inquiring into matters of concern as a
necessary preliminary to debating those matters and legislating in respect of
them. The power has long been regarded as essential for a legislature. The power is, in
the last resort, dependent upon the power to punish contempts, in so far as
that penal power is the means by which the Houses may enforce the attendance of
witnesses, the answering of questions and the production of documents.
The power to conduct inquiries by compelling the attendance of
witnesses, the giving of evidence and the production of documents is conferred
by section 49 of the Constitution.
Inquiry powers also have another possible source. In the United States it was found that
these powers are inherent in the legislature (see McGrain v Daugherty 1927 273 US 135).
Something of this inherent powers doctrine was adopted in a state. The
New South Wales Court of Appeal in Egan v Willis and Cahill 1996 40 NSWLR 650
found that although the New South Wales Parliament lacks an equivalent of
section 49 of the Constitution, the Legislative Council possesses an inherent
power to require the production of documents and to impose sanctions on a
minister in the event of non-compliance. The Council had made an order for
documents and suspended the Treasurer from the Council when he failed to produce
the required documents. The High Court rejected an appeal against this
judgment, while not indicating whether the Council possesses full inquiry
powers: Egan v Willis and Cahill 1998 158 ALR 527.
The Court of Appeal subsequently found that claims of legal professional
privilege and of public interest immunity could not protect the executive
government against the Council’s power: Egan v Chadwick and others 1999 46 NSWLR 563.
The Council does not possess a general power to punish contempts. The
limitation of the power of the Council in respect of documents recording the
deliberations of cabinet, found by the Court of Appeal, would not apply to the
Commonwealth Houses in the presence of the constitutional bases of their
powers.
The power to
conduct inquiries is usually not exercised by the Houses themselves, but is
delegated to committees by giving those committees the power to require the
attendance of witnesses and the production of documents. A major concomitant of
that delegation is that proceedings in parliamentary committees are proceedings
in Parliament, and the immunity from impeachment or question in the courts
attaches to words uttered in committee proceedings by members and witnesses and
to the production of documents to committees, as declared by the 1987 Act.
It is not determined whether the Houses can delegate their power to
conduct inquiries to a person other than their own members, although there are
some old precedents in Britain for such a delegation (see also under
Preparation and publication of documents, above; see also Chapter 20, Relations
with the Judiciary, under The second Senate committee).
The power may be
confined to inquiries into subjects in respect of which the Commonwealth
Parliament has the power to legislate. There is judicial authority for the
proposition that the Commonwealth and its agencies may not compel the giving of
evidence and the production of documents except in respect of subjects within
the Commonwealth’s legislative competence (Attorney-General for the
Commonwealth v Colonial Sugar Refinery Co Ltd 1912 15 CLR 182,
1913 17 CLR 644; Lockwood v the Commonwealth 1954 90 CLR 177 at
182-3), and, if the matter were litigated, the High Court might well hold that
this limitation applies to the inquiry powers of Senate committees. The United
States Supreme Court so held in relation to the Congress (see Quinn v US 1955 349 US 155). This would
not mean that an inquiry would have to be linked with any particular
legislation (cf Eastland v US Servicemen’s Fund 1975 421 US 491).
Although the
question has not been adjudicated, there is probably
an implicit limitation on the power of the Houses to summon witnesses in
relation to members of the other House or of a house of a state or territory legislature.
Standing order 178 provides that
if the attendance of a member or officer of the House of Representatives is
required by the Senate or a Senate committee a message shall be sent to the
House requesting that the House give leave for the member or the officer to
attend. This standing order reflects a rule of courtesy and comity between the
Houses, and as such it ought properly to be observed in relation to houses of
state and territory parliaments. It may be that these limitations on the power
to summon witnesses in relation to other houses have the force of law, and may
extend to officers of state and territory governments. The basis of such a
legal doctrine in relation to the states would be High Court judgments to the
effect that the Commonwealth may not impede the essential functioning of the
states. (For an examination
by the High Court of what has come to be known as the “Melbourne Corporation
doctrine”, that the Commonwealth may not interfere with the governmental
functions of states, see Austin v Commonwealth 2003 195 ALR 321.)
The Select Committee on the Australian Loan Council, in its interim
report in March 1993 (PP 78/1993), accepted advice by the Clerk of the Senate
that it could not summon as witnesses members of the House of Representatives
and of the houses of state parliaments. The committee recommended that the
Senate ask the various houses to require their members to attend and give
evidence before the committee (the advice also indicated that the houses have
the power so to compel their members, but that question also has not been
adjudicated). The Senate passed a resolution and requests were sent to the
various houses accordingly. The various houses declined to compel their members
to attend. (5/10/1993, J.566; 7/10/1993, J.608; 20/10/1993, J.657; 21/10/1993, J.683; see also Chapter 17, Witnesses) Similar advice
was provided to, and accepted by, the Select Committee on Unresolved
Whistleblower Cases (Report, PP 344/1995, pp 138-40). For an instruction by the
Senate to a committee to invite the Prime Minister and another minister to give
evidence, see 9/3/1995, J.3063-4.
The Select
Committee on the Victorian Casino Inquiry presented a report on 5 December 1996 indicating that it
had decided not to continue its inquiry because of advice provided by the Clerk
of the Senate and by Professor Dennis Pearce in relation to limitations on the Senate’s powers to
compel evidence from state members of parliament and other state office-holders.
The committee’s report provided a comprehensive analysis of this matter and
copies of the advices (PP 359/1996).
In the United States the view is taken that each House of the Congress and
their committees may summon members and officers of state governments, provided
that this is for the purposes of inquiries into matters within the legislative
power of the Congress. The question has not been adjudicated, but there are
precedents for the summoning of state officers and their responding. It must be
noted, however, that differing constitutional provisions may reduce the
persuasive value of the American law for Australian purposes; for example,
article iv, section 4 of the US Constitution, whereby the United States
guarantees to every state a republican form of government, gives the Congress a
general power of supervision of state governments which the Australian
Parliament does not possess.
(See Supplement)
The Supreme Court of the Province
of Prince Edward Island, in Canada,
held that officers of a federal government agency had no immunity from a
summons issued by a committee of the Legislative Assembly of the province in
the course of an inquiry into a matter within the legislative power of the
province. This decision was not appealed and the officers subsequently appeared
before the committee. (Attorney General (Canada) v MacPhee 2003 661 APR 164)
The power to
summon witnesses and the power to require the production of documents are one
and the same; any limitations on one therefore apply equally to the other.
The immunity of other houses’ proceedings from impeachment and question
before other tribunals (the Bill of Rights,
article 9 immunity
which most Australian Houses possess) is regarded as preventing any inquiries
into their proceedings by the Senate or its committees (see the 54th
report of the Committee of Privileges, PP 133/1995).
The inability to compel members of other houses has been regarded as
preventing findings of contempt against them, except for Commonwealth ministers
in that capacity (see Chapter 19, Relations with the executive government,
under Ministerial accountability and censure motions). This principle might be
held to be applicable to state and territory office-holders.
Possible and mooted limitations on the Senate’s power to compel
evidence were summarised in ‘The Senate’s power to obtain evidence and
parliamentary “conventions”’, paper by the Clerk of the Senate published by the
Finance and Public Administration References Committee, September 2003.
Subject to the
observance by the courts of parliamentary immunities, there is nothing to
prevent judicial proceedings involving the same facts and circumstances as have
been examined in a parliamentary inquiry (cf Hamilton v Al Fayed 1999 3 All ER 317;
a different view of the particular case, though not of the law, was taken by
the House of Lords on appeal, 2000 2 WLR 609; also Mees v Roads Corporation 2003 FCA 306).
For the application of the sub judice convention to inquiries by the
Senate, see Chapter 10, Debate, under Sub judice convention, and Chapter 16,
Committees, under Privilege of proceedings.
Previous Page | Contents | Next Page
Website feedback: web.senate@aph.gov.au
Last reviewed 31 July 2009 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
