 |
Chapter 16 - Committees
Disclosure of evidence and documents
Evidence
taken by a committee and documents presented to it, and not published by the
committee or presented to the Senate, may not be
disclosed to any person other than a member or officer of the committee
(SO 37). A committee
may authorise the publication of such material. If a committee does not deliberately
resolve to publish any such material, it is automatically published on
presentation to the Senate. The Senate may separately authorise the disclosure
of evidence or other material presented to a committee.
Persons who make a submission to a committee are routinely advised that
they may not disclose their submission to other persons until the committee has
resolved to publish it. To do so may be a contempt of the Senate.
The principle contained in standing order 37, that only the Senate
or a committee may authorise the disclosure of material belonging to it, is
elaborated in Privilege Resolution 6, which defines matters constituting
contempts to include unauthorised disclosure of evidence:
A person shall not, without the authority
of the Senate or a committee, publish or disclose:
-
a document that has been
prepared for the purpose of submission, and submitted, to the Senate or a
committee and has been directed by the Senate or a committee to be treated as
evidence taken in private session or as a document confidential to the Senate
or the committee;
-
any oral evidence taken by
the Senate or a committee in private session, or a report of any such oral
evidence; or
-
any proceedings in private
session of the Senate or a committee or any report of such proceedings,
unless the Senate or a committee has
published, or authorised the publication of, that document, that oral evidence
or a report of those proceedings (paragraph 16).
It is also an offence under section 13 of the Parliamentary
Privileges Act 1987 to publish or disclose, without the authority of a
House or committee, a confidential submission, oral evidence taken in camera or
a report of such evidence. Such an offence may be prosecuted in the courts.
Orders of the Senate, adopted on the recommendations of the Procedure
and Privileges Committees, require committees to investigate in a preliminary
way any unauthorised disclosures of their unpublished materials, and form a
conclusion about whether the disclosures tended to interfere with their work,
before raising such disclosures as matters of privilege for investigation by
the Privileges Committee (20/6/1996, J.361; 6/10/2005, J.1200-2; 17/9/2007,
J.4388). For examples of action by committees under these provisions, see
statement by the chair of the Senators’ Interests Committee, SD, 13/9/2006, pp
90-2; report by the Rural and Regional Affairs and Transport Committee, PP
205/2007.
All oral evidence taken in public is automatically published, but any
other evidence, written or oral, requires specific authorisation by the
committee or the Senate for disclosure.
Given the public interest focus of most Senate committee inquiries, it
is usual for most evidence taken by a committee to be published during the
course of, or at the conclusion of, the inquiry. There may be reasons why some
evidence should remain confidential, including personal privacy, active
litigation or possibly adverse commercial consequences.
Where an inquiry has been concluded and unpublished evidence is in the
custody of the Senate (SO 25 (15)), an order of
the Senate is necessary to publish it. The Senate occasionally makes such an
order on the recommendation of the committee concerned (30/11/2000, J.3638). This
procedure has been used for limited publication of evidence, for example, to
police to assist in fraud inquiries subject to the limitation imposed by
parliamentary privilege (31/8/2000, J.3181).
On 30 August 2001 the Senate took the unusual step of
ordering the publication of documents held, and not published, by a committee.
The Rural and Regional Affairs and Transport Committee was given a reference on
the role of the Australian Maritime Safety Authority (AMSA) in the search for
the Tasmanian fishing vessel the Margaret J.
A majority of the committee subsequently accepted representations by AMSA and
counsel assisting the Tasmanian coroner that it should not proceed with its
inquiry until the coroner had concluded his inquiry into the matter, a decision
opposed by the non-government members of the committee. The representations
were based on a claim that the committee’s inquiry could prejudice the
coroner’s inquiry. Advice to the committee from the Clerk (which was tabled in
the Senate), however, pointed out that this claim rested on misapprehensions
that the coroner could not receive documents which were laid before the
committee or evidence which contradicted evidence given in the committee or
remarks made in the Senate, misapprehensions clearly arising from a
misunderstanding of parliamentary privilege. While not seeking to compel the
committee to proceed with its inquiry, the majority of the Senate directed the
publication of relevant documents supplied by AMSA and held by the committee,
so as to ensure that the documents provided to the committee could not be
withheld from the coroner (30/8/2001, J.4830-1).
Standing order 37(3) provides
procedures for regulating access
to historic committee material which has not been
published. It authorises the President to permit any person to examine and copy
evidence submitted to, or documents of, committees which are in the custody of
the Senate, have not previously been published and have been in the Senate’s
custody for at least ten years. Confidential and in
camera material may not be disclosed until it has been in the custody of the
Senate for at least thirty years and unless the President is of the opinion
that it is appropriate that such evidence or documents be disclosed. The
President is required to report to the Senate the nature of any evidence or
documents made available and the persons to whom they have been made available.
The House of Representatives agreed to similar conditions under which the
President and Speaker may jointly authorise access to evidence and documents of
joint
committees (resolution of the Senate of 6 September 1984, J.1086, concurred
with by the House of Representatives on 11 October
1984).
In 1996 the President tabled an unpublished document of a former select
committee on the basis that it would normally have been made public (9/5/1996, J.282).O
Committees
sometimes table in the Senate submissions or other material received after the
committees have concluded their inquiries. Thus on 9 May 1996 Senator Campbell, the former chair
of the Select Committee on Certain Land Fund Matters, tabled a document
submitted by a person who had featured in the committee’s inquiry and which
referred to disputes between witnesses before that inquiry (J.138). O This procedure is
used to allow witnesses to respond to evidence adverse to them (see Chapter 17,
Witnesses, under Protection of witnesses).
For the publication of in camera evidence in a report, see Chapter 17,
Witnesses, under that heading.
Committees are
occasionally asked to provide unpublished evidence or documents to particular
persons for purposes which those persons wish to pursue, particularly for use
in litigation. Committees have been advised that they should not publish the
documents unless they would do so having regard to the purpose for which
documents are normally published, that is, to assist a committee and its witnesses
in its functions of inquiring into and reporting on matters referred to it by
the Senate. Committees have been advised that, if they have not, and would not,
publish documents for that purpose, they should not, particularly after the
conclusion of an inquiry, publish such documents for the purposes of other
persons, such as the pursuit of litigation. The basis of this advice is that
committees should use their powers only to enable them to perform their
functions on behalf of the Senate, and not for purposes unrelated to those
functions. If this principle is not followed committees risk having their
powers used to support one side or another in disputes which are unrelated to
the Senate's purpose in conducting an inquiry. Committees have generally adhered
to these principles.
A committee may
consider, however, that there is an overriding public interest in providing
unpublished material in particular circumstances. It is a matter for the
committee's judgment whether there is such an overriding public interest which
should overcome the general principle.
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
|
 |
