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| Print this chapter (PDF 496KB) | < - Contents < - Chapter 17 : Chapter 19 - > |
The principal purpose of parliamentary committees is to perform functions which the Houses themselves are not well fitted to perform, that is, finding out the facts of a case or issue, examining witnesses, sifting evidence, and drawing up reasoned conclusions. Because of their composition and method of procedure, which is structured but generally informal compared with the Houses, committees are well suited to the gathering of evidence from expert groups or individuals. In a sense they ‘take Parliament to the people’ and allow direct contact between members of the public and representative groups of Members of the House. Not only do committee inquiries enable Members to be better informed about community views but in simply undertaking an inquiry committees may promote public debate on the subject at issue. The all-party composition of most committees and their propensity to operate across party lines are important features. This bipartisan approach generally manifests itself throughout the conduct of inquiries and the drawing up of conclusions. Committees oversight and scrutinise the Executive and are able to contribute towards better government. They also assist in ensuring a more informed administration and policy-making process, in working with the Executive on proposed legislation and other government initiatives. In respect of their formal proceedings committees are microcosms and extensions of the Houses themselves, limited in their power of inquiry by the extent of the authority delegated to them and governed for the most part in their proceedings by procedures and practice which reflect those which prevail in the House by which they were appointed.1
The power of the House to appoint committees is not in doubt but the source of this power, particularly in regard to investigatory committees, cannot be stated precisely. The following three sources have been suggested:
As there is no doubt about the power of the House of Commons to appoint committees,2 section 49 of the Constitution appears to be a clear source of power, with extensive ambit, for the Houses of the Parliament to appoint committees of inquiry. The other sources ‘could be called in aid to extend its breadth or to sustain what otherwise might be uncertain about it’.3
Committees appointed by the House, or by both Houses, can be categorised as follows (a particular committee may fall into more than one category):
Standing committees are committees created for the life of a Parliament and are usually re-established in successive Parliaments. They have a continuing role.
General purpose standing committees are a specific type of standing committee. They are investigatory or scrutiny committees, established by the House at the commencement of each Parliament to inquire into and report upon any matters referred to them, including legislation. These committees specialise by subject area, between them covering most government activity (see p. 623).
Select committees are created as the need arises, for a specific purpose, and thus have a more limited life which is normally specified in the resolution of appointment. Once a select committee has carried out its investigation and presented its final report, it ceases to exist.
Joint committees draw their membership from, and report to, both Houses of Parliament, enabling Members and Senators to work together (see p. 627).
Statutory committees are those established by Act of Parliament, that is, by statute. All existing statutory committees are joint committees (see p. 628).
Domestic or internal committees are those whose functions are concerned with the powers and procedures of the House or the administration of Parliament (see p. 624).
The Main Committee is a body established to be an alternative venue to the Chamber for debate of a restricted range of business—i.e. the second reading and consideration in detail stages of bills, and resumption of debate on motions moved in the House (generally relating to committee and delegation reports and documents). It is not an investigatory committee and cannot hear witnesses or take evidence. (See Chapters on ‘Motions’ and ‘Legislation’ for more detail on Main Committee procedures.)
In addition to the parliamentary committees described above there are further categories of committees consisting of Members and Senators which operate within the Parliament. However, although their members are Members of Parliament, these committees are not appointed by either House. They are therefore not committees of the Parliament, and do not enjoy the special powers and privileges of such committees, nor do they necessarily operate in accordance with parliamentary procedures and practice.
In earlier years unofficial committees consisting of Members and Senators were appointed by the Government of the day.4 Membership included members of the Opposition. The committees’ reports were submitted to the Government and subsequently presented to one or both Houses. The practice of appointing such committees has not been continued.
Informal committees consisting of Members and Senators have been established to advise the Presiding Officers in respect of accommodation matters in the provisional Parliament House and, in more recent years, in respect of the information systems needs of Members and Senators and in respect of the Parliamentary Education Office. In the 36th and 37th Parliaments a group of Members and Senators, including the Presiding Officers, formed a working group to consider issues relating to standards of conduct for Members of Parliament, including Ministers (see Chapter on ‘Members’).
The government and opposition parties each have committees of private Members to assist them in the consideration of legislative proposals and other issues of political significance allied to each committee’s function. These party committees are referred to in the Chapter on ‘House, Government and Opposition’.
In 1987 the House established a comprehensive committee system by setting up eight general purpose standing committees. At the same time, the functions of the Joint Committee on Foreign Affairs and Defence were extended, thus giving the House the capacity to monitor or to ‘shadow’ the work of all federal government departments and instrumentalities. The number of general purpose standing committees was increased to nine in 1996 and 13 in 2002.
The committees are appointed at the commencement of each Parliament pursuant to standing order 215. The names of the committees have varied. In the 41st Parliament the following were appointed:
The general purpose standing committees are so called because they are established (or stand) for the duration of the Parliament and have the power to inquire into and report on any matter referred to them by the House or a Minister. Matters referred may include any pre-legislation proposal, bill, motion, petition, vote or expenditure, other financial matter, report or document.
In addition, annual reports of government departments and authorities and reports of the Auditor-General presented to the House are automatically referred to the committees for any inquiry they may wish to make.5 Reports are referred to particular committees in accordance with a schedule presented by the Speaker recording the areas of responsibilities of each committee. The Speaker is empowered to determine any question should responsibility be unclear or disputed in respect of a report or a part of a report. The period during which an inquiry concerning an annual report can be commenced ends on the day on which the next annual report of the department or authority is presented to the House.6
As part of the legislative process, under standing order 143(b), bills may be referred for advisory reports to a standing or select committee, or to a committee formed of the House members of a joint committee, in which case the committee operates as a committee of the House.7 (See Chapter on ‘Legislation’.)
Committees concerned with the operations of the House
The following standing committees are appointed at the commencement of each Parliament, pursuant to standing orders:
The Library Committee is concerned with the operation of the Parliamentary Library services, while the House Committee is concerned with the provision of services and amenities to Members in Parliament House. The Speaker is a member of both committees.8
Historically, these committees have had an advisory role only—executive responsibility has rested with the Speaker and the President, who have not been bound by the decisions of the committees. The limited powers of members of the House Committee, particularly concerning the appointment of staff of the (former) Joint House Department, was raised as a matter of privilege in the House in 1927.9 The Speaker made a statement in which he drew attention to the statutory responsibilities of the Speaker and the President under the Public Service Act.10 A brief debate followed but no further action was taken.
With the incorporation of the former Department of the Parliamentary Library into the Department of Parliamentary Services in 2004, an expanded role for the Joint Library Committee was proposed.11
Both the House and Library Committees regularly exercise their power to confer with similar committees of the Senate. When the two House committees are sitting together as the Joint House Committee, they should, generally speaking, only consider those matters which affect joint services, as each House is responsible for its own affairs. Recommendations affecting only one House should properly be made by the appropriate House Committee independently. In 1956 and in 1959 the House of Representatives House Committee considered and reported informally on Members’ accommodation. Reports are seldom made to the House.12
The Publications Committee of each House when conferring together form the Joint Committee on Publications which has the dual role:
The committee is discussed in more detail in the Chapter on ‘Documents’.
The Committee of Privileges is appointed to inquire into and report on complaints of breach of privilege or contempt or on any other matters which may be referred to it.15 The committee has no power to initiate inquiries. The House has referred to the committee matters of a general nature, such as the use of House records in the courts, the issue of public interest immunity, and the legal status of the records and correspondence of Members.16 The committee also considers applications from citizens for the publication of responses to statements in the House referring to them.
The procedure for raising and dealing with questions of privilege and details of the functions and procedures of the committee are discussed in detail in the Chapter on ‘Parliamentary privilege’.
The Committee of Members’ Interests is appointed to inquire into and report on the arrangements made for the compilation, maintenance and accessibility of a Register of Members’ Interests, and various related matters.17 The committee’s functions are discussed in more detail in the Chapter on ‘Members’.
The Standing Committee on Procedure is appointed to inquire into and report on the practices and procedures of the House and its committees.18 As a result of reports of the Procedure Committee a number of initiatives have been taken relating to the business of the House, including significant developments relating to private Members’ business and procedures for the consideration of legislation, including the establishment of the Main Committee. In 1998 the committee undertook a review of the House of Representatives committee system, resulting in extensive changes to the standing orders relating to committees.19 In the 40th Parliament the committee undertook a complete review of House standing orders with a view to making them more logical, intelligible and readable. The committee’s recommendations for revised standing orders were adopted by the House with effect from the first day of the 41st Parliament.20
The Selection Committee is appointed to arrange the timetable and order of private Members’ business and committee and delegation reports for each sitting Monday.21 The committee’s functions are discussed in detail in the Chapter on ‘Non-government business’.
Select committees are appointed, as the need arises, by a resolution of the House.22 Select committees, in Australian practice, have a limited life which should be defined in the resolution of appointment. The creation of a select committee is seen as a measure to meet a particular and perhaps short-term need. After the establishment of the general purpose standing committees in 1987 the House has not found it necessary to establish select committees on a regular basis. Since then there have been only three House select committees—Print Media (1991), Televising of the House of Representatives (1991), and Recent Australian Bushfires (2003).
The House appoints select committees by motion, and must set a day for the reporting of the proceedings of a committee to the House. A member of the committee must present a report of the committee on or before the set day, unless the House grants an extension of time.23 However, practice has not always accorded with this provision as select committees have been appointed with the provision to report ‘as soon as possible’.24 This occurs when a committee undertakes an inquiry which can be seen to be longer-term, perhaps even extending over the life of more than one Parliament. When a select committee is directed to report by a specific date or as soon as possible, its corporate existence comes to an end as soon as it does so.
The standing orders also give committees leave to report from time to time.25 This authorisation means that a committee is at liberty to make progress reports during the course of the consideration of the matter referred to it.26 The following provision, or a similar one, has been included in the resolution of appointment of some select committees:
That the committee have leave to report from time to time but that it present its final report no later than [date].27
On presenting its final report the committee ceases to exist.
If a select committee finds it difficult or impossible to present a satisfactory final report by the specified date, it may be given an extension of time by the House, prior to, or on, the specified reporting date, by amendment of its resolution of appointment.28
The terms of reference of select committees tend to be narrow and specific and have traditionally been based on the assumption of a single inquiry and report. Nevertheless, the resolutions of appointment of some select committees have given the relevant Minister power to refer additional matters to them—that is, before they report and cease to exist.29 A select committee with an unqualified power to report from time to time can elect to present a series of reports on particular aspects of its terms of reference.
Joint committees are established by resolution or legislation agreed to by both Houses, and membership consists of both Members and Senators.
In current practice all committees of the House appointed by standing order are given power to confer with similar committees of the Senate,30 but they exist independently of the Senate committees, and the committees in question never operate as joint committees. However, a procedure was followed in the early years of the Parliament in respect of some committees which were established by resolution by each House independently but which in the conduct of inquiries became in effect joint committees. For example, the House, having appointed a Select Committee in relation to Procedure in Cases of Privilege, sent a message to the Senate ‘requesting it to appoint a similar Committee empowered to act conjointly with the Committee of this House’ to which the Senate agreed; the joint select committee reported as a single entity.31
It is essential to an understanding of joint committees to recognise that they are the creatures of both Houses. Neither House may give instructions to a joint committee independently of the other unless both Houses expressly agree to the contrary. However, it is often provided in resolutions appointing joint committees that either House may refer matters for investigation by those committees.32
The standing orders of both Houses are largely silent on the procedures to be followed by joint committees. It has become the established practice for such committees to follow Senate committee procedures when such procedures differ from those of the House,33 subject to any particular variations, necessitated for example by the provisions of the resolutions appointing them and any further instructions agreed to by both Houses. However, chairs of joint committees, when seeking procedural advice, may approach the Presiding Officers or the Clerks of both Houses.
Joint committees may be described as ‘joint standing committees’ or ‘joint select committees’. Like select committees of the House the latter are seen to have an ad hoc role and generally cease to exist upon reporting, while the former have a longer-term role and members hold office for the life of a Parliament. Some committees have simply been called ‘joint committees’ (for example, the former Joint Committee on the Australian Capital Territory) but could equally have been called joint standing committees. While members of the Joint Committee on Pecuniary Interests of Members of Parliament were appointed for the life of the Parliament, the committee was strictly a joint select committee in that it had a definite and limited purpose and was required to report ‘within the shortest reasonable period, not later than 90 days after the members of the committee are appointed’.34
The number and names of joint standing committees appointed by resolution varies from Parliament to Parliament. The following joint standing committees were appointed by resolution at the start of the 41st Parliament in 2004:
Joint select committees may also be appointed for a specific purpose by resolutions of both Houses—for example, the Joint Select Committee on the Republic Referendum established in 1999.
The functions, membership, powers and procedures of these committees are determined by the resolutions establishing them.
The following committees are required by Acts of Parliament to be established at the commencement of each Parliament. In some cases the establishing Acts leave the detail of the membership, powers and procedures of the committees to the Parliament to determine. This is done by resolution of each House at the start of every Parliament.
The Joint Committee of Public Accounts and Audit35 is established by the Public Accounts and Audit Committee Act 1951. The functions of the committee are set out in sections 8 and 8A of the Act. In general terms they are to:
The committee is also responsible, under the Public Service Act, for approving annual report requirements of Commonwealth departments.
Responses to ‘administrative’ matters raised in a report of the committee are made by way of an Executive Minute,36 which is expected to be provided to the committee by the relevant Minister within six months of the report’s presentation. The chair of the committee presents the Executive Minute in the Parliament as soon as practicable after it has been received.
Bills dealing with subjects related to the committee’s functions—for example, major changes in Commonwealth financial controls, management and audit and bills dealing with taxation law—have been referred to the committee and reported on. In each case the bills were referred by the House, standing orders having been suspended to allow it.37
The ability to consider and report on any circumstances connected with reports of the Auditor-General or with the financial accounts and statements of Commonwealth agencies is one of the main sources of the committee’s authority—it gives the committee the capacity to initiate its own references and, to a large extent, to determine its own work priorities. This power is unique among parliamentary committees and gives the committee a significant degree of independence from the executive arm of government.
The Parliamentary Standing Committee on Public Works is established by the Public Works Committee Act 1969. The committee’s function is to consider each public work referred to it, and report to both Houses concerning the expedience of carrying out the work. It may also report on any other matters related to the work where the committee thinks it desirable that its views should be reported to the Houses. In its report the committee may recommend any alterations to the work which it thinks necessary or desirable to ensure that the most effective use is made of public moneys.
A motion may be moved in either House that a public work be referred to the committee for consideration and report.38 If the Parliament is not in session or the House is adjourned for more than a month or for an indefinite period, the Governor-General (in council) may refer a work to the committee for consideration and report.
If the estimated cost of a public work exceeds a specified amount, that work cannot be commenced unless it has been referred to the committee; or the House of Representatives has resolved that, because of the urgency of the work, it is expedient that the work be carried out without having been referred to the committee;39 or it is a work of an authority that has been exempted by regulation; or the Governor-General has declared that the work is for defence purposes and reference of it to the committee would be contrary to the public interest; or it has, with the agreement of the committee, been declared to be work of a repetitive nature. A public work referred to the committee cannot be commenced unless, after the report of the committee has been presented to both Houses, the House of Representatives has resolved that it is expedient to carry out the work.40 Motions to refer works to the committee have been rescinded.41
The Joint Committee on the Broadcasting of Parliamentary Proceedings is established pursuant to the Parliamentary Proceedings Broadcasting Act 1946. The committee’s function is to regulate the radio broadcast of the proceedings of the Parliament, as described in the Chapter on ‘Parliament House and access to proceedings’.
The Parliamentary Joint Committee on ASIO, ASIS and DSD is established by the Intelligence Services Act 2001. The functions of the committee are:
In the 41st Parliament three other joint statutory committees operated:
The standing orders do not prevent any Member moving a motion for the appointment of a committee, but most motions brought to a successful vote are moved by a Minister.43
A standing committee may be appointed by sessional or standing orders or by resolution of the House. It has not been the practice to require a resolution for the appointment of the standing committees appointed under the standing orders. They commence to operate when Members are appointed to them and cease to exist only upon dissolution or expiry of the House.
A select committee is appointed by resolution of the House. The committee ceases to exist on the presentation of its final report.
A joint committee (other than a statutory committee) is established by a motion originating in one House and agreed to in the same terms by the other House. A proposal for a joint committee may originate in either House.
A resolution by the House proposing the establishment of a joint committee defines the nature and limits of the authority delegated to the committee in the same way as a resolution appointing a committee of the House. However, it also includes a paragraph stating:
That a message be sent to the Senate acquainting it of this resolution and requesting that it concur and take action accordingly.44
The Senate considers the resolution and may agree to its provisions, suggest modifications or reject the proposal altogether. Its decision is conveyed to the House by message. Where modifications are proposed, the House may choose to:
In the case of a total rejection, or a failure to respond to a message, the House may choose to appoint a committee of the House with the same purposes instead.48
Joint committees may be standing committees, usually established at the start of a Parliament, or select committees established for a specific short term purpose.
A committee established under an Act of Parliament is required to be appointed as soon as practicable after the commencement of each Parliament. In practice this action is usually taken within the first few sitting days of the opening of the Parliament, when a motion appointing members to the committee is moved by a Minister in each House. If provided for by the relevant Act, a motion relating to the powers and procedures of the committee may also be moved. The committee continues in existence until the House of Representatives is dissolved or expires.
It has been considered desirable for committees of the House and the Senate to endeavour to avoid duplication with the work of other committees—for example, in inquiries by the House Standing Committee on Aboriginal Affairs and a Senate select committee in 1988, there was considerable potential for duplication, but the two committees concentrated on different matters. Such considerations also apply in respect of joint committees—for example, in the 36th Parliament the Joint Committee of Public Accounts and the Joint Committee on Migration Regulations were careful to avoid duplication in their respective inquiries into the Business Migration Program and the control of visitor entry.
If a general purpose standing committee intends to inquire into all or part of a report of the Auditor-General, the committee must notify the Joint Committee of Public Accounts and Audit of its intention, in writing.49
Upon dissolution of the House all committees, including joint committees, cease to exist. Even if a committee is appointed in the next Parliament with the same terms of reference, powers and title, it is in fact a different committee. Consequently, committees need authorisation from the House to have access to the records of and evidence taken by the previous committee. Standing authorisation is now provided by S.O. 237.50
For constitutional reasons, committees of the House and joint committees appointed by standing order or by resolution for the life of the Parliament continue in existence but may not meet and transact business following prorogation.51 Committees whose tenure is on a sessional basis cease to exist.
Committees appointed by standing or sessional order or by resolution of the House, or both Houses, for the life of the Parliament may meet again in the new session of the same Parliament. If the subject of inquiry was referred to the committee by the House in the previous session, the effect of the reference ceases and the subject must be again referred by resolution of the House.52 Other inquiries commenced in the previous session are resumed without action by the House. References by Ministers do not need to be re-referred.
A committee which is appointed on a sessional basis—that is, not for the life of a Parliament—ceases to exist upon prorogation. If the committee is to continue its activities in the new session, the committee and its membership must be re-appointed by resolution and its terms of reference renewed.53 Standing order 237 authorises the new committee to use the minutes of evidence and records of the previous committee.
The provisions of the Acts establishing each of the joint statutory committees determine that the committees are to be appointed at the commencement of each Parliament, and that their members may hold office until the House of Representatives expires by dissolution or effluxion of time. Terms in the Acts refer to the committees being able to meet and transact business notwithstanding any prorogation of the Parliament.
The effect of prorogation on committees has been a matter of some debate, and as noted below, the position traditionally taken by the House has not been adopted by the Senate. The practice of the House is reinforced by the following parliamentary authorities:
The effect of a prorogation is at once to suspend all business, including committee proceedings, until Parliament shall be summoned again.54
Committees appointed by standing order for a Parliament are terminated by a dissolution. In the case of committees appointed on a sessional basis, orders appointing them cease to have effect at prorogation.55
. . . a committee only exists, and only has power to act, so far as expressly directed by the order of the House which brings it into being. This order of reference is a firm bond, subjecting the committee to the will of the House; the reference is always treated with exactness and must be strictly interpreted . . . The House may at any time dissolve a committee or recall its mandate, and it follows from the principle laid down that the work of every committee comes to an absolute end with the close of the session.56
Even though the standing orders appointing the Library and House Committees until 1998 contained the words ‘shall have power to act during recess’, it is considered that the House alone has no authority to grant such power. There have been a number of instances where a resolution appointing a committee has purportedly empowered the committee to sit during any recess. However, as the resolution of appointment in each case lapsed at prorogation, the purported power was not valid.
On 18 February 1954 the chairman of the Joint Committee on Foreign Affairs was advised by the Minister for External Affairs by letter:
I have had the matter you raised in your letter of the 2nd February looked into—that is, the status of the Joint Committee on Foreign Affairs following on the prorogation of Parliament.
I find that the Solicitor-General’s view is that the Foreign Affairs Committee ceases to exist when Parliament is prorogued.
Despite this view of the Solicitor-General, it was given the power to act during recess when it was appointed for the life of the Parliament in 1959.57
When the Joint Committee on the Australian Capital Territory was first established as a sessional committee in 1956, it was given power to sit during recess,58 but the power was not included in the terms of the resolution when it was re-appointed in the new session in 1957.59 It was once again given the power to sit during recess when it was appointed for the life of the Parliament in 1959.60
In 1957 the House agreed to a Senate modification to the resolution re-appointing the Joint Committee on Constitution Review, which empowered the committee to sit during any recess. In speaking to the modification the Leader of the House, while acknowledging the correct constitutional position, made the following observation:
. . . We having decided that henceforth we shall have a session of the Parliament annually, and it being the desire, I think, of all members of the Parliament that committees such as the Constitution Review Committee, which has a valuable public service to perform, should continue to function in any period of recess between the prorogation of one session of the Parliament and the formal opening of another, there is sound practical sense in the suggestion that these committees be enabled to continue during any such recess.61
The power to sit during any recess was renewed on the re-appointment of the committee in 1958,62 but not in 1959.63
In considering the question of Senate committees having the power to meet after a dissolution of the House of Representatives, a Solicitor-General’s opinion of 23 October 1972 states, in part:
During a session each House can control its own proceedings, exercise its powers and privileges and adjourn from time to time. However, once the Parliament is prorogued, I think each House would be effected [sic] in the same way as the House of Commons. Section 49 of the Constitution, in my view, has this effect, because it provides (there being no legislation of the Commonwealth Parliament on the subject) that the powers, privileges and immunities of the Senate and the House of Representatives and the members and the committees of each House shall be those of the Commons House of Parliament of the United Kingdom and of its members and committees, at the establishment of the Commonwealth. However, quite apart from s. 49, I think support for this view is found in ss. 1 and 5 of the Constitution and the constitutional theory which underlies them. The Houses are called together to exercise their functions as part of the Federal Parliament. At the discretion of the Crown and subject to certain constitutional safeguards the Crown can terminate the session. With the termination of the session, this power to deliberate and pass bills and their ability to exercise these powers as part of the Parliament ceases until they are called together again. It is consistent with this clear position, that between sessions neither they nor their committees should be able to exercise any powers. This could be found inconvenient to the work of committees but I think it is the effect of the provisions of the Commonwealth Constitution.
The same opinion drew attention to possible consequences of committees meeting without having the constitutional authority to do so:
. . . witnesses who gave evidence would not be entitled to the protection of the House and their evidence could be actionable at the suit of third parties or could be used to incriminate them. Likewise statements by [committee members] during hearings would lack the protection which the privileges of the House normally afford to [Members]. In camera hearings may be no protection. Witnesses who were summoned to give evidence would, of course, be well advised to refuse to do so. If they did, the [House] clearly could not meet to punish them. When ultimately it did meet there may be little purpose served in committing them for contempt because by then the [House’s] authority and protection would be available and they would, no doubt, willingly answer questions.
However, other legal authorities have taken a different view of the effect of prorogation on committees. A number of opinions relevant to this matter were presented to the Senate on 19 and 22 October 1984 when the Senate passed a resolution concerning meetings of the Senate or its committees after dissolution of the House.64 Senate standing orders and resolutions of appointment give most Senate committees the power to meet during recess or following dissolution of the House, and they have done so.65
Committee service is considered to be one of the parliamentary duties of private Members. Office holders and Ministers have not normally served on committees except in an ex officio capacity on committees concerned with the operations of the House or the Parliament (see below).66 Given their role of scrutinising the Executive it has been considered inappropriate for Ministers to serve on investigatory committees. The same reservation applies to Parliamentary Secretaries, although guidelines on the role of Parliamentary Secretaries recognise that there may be occasions when special reasons such as the particular character of a Member’s electoral division make a strong case for them to serve on a committee.67 In cases where a committee chair has been appointed as a Minister or Parliamentary Secretary he or she may remain on the committee, even as chair, for a period until a replacement member has been appointed. However, it would not be expected that he or she would attend meetings and participate in committee business.
Except with their consent, or as specified in a standing or other order, the Speaker, the Deputy Speaker or the Second Deputy Speaker may not be appointed to serve on any committee.68 In the case of some statutory committees certain office holders, such as the Speaker and the Deputy Speaker, are not able to be appointed to the committee.
A Member may not sit on a committee if he or she has a particular direct pecuniary interest in a matter under inquiry by the committee.69 ‘Personal interest’ has been interpreted in the very narrow sense of an interest peculiar to a particular person. If, for example, a Member were a producer of beef he or she would not, for that reason alone, be under any obligation to disqualify himself or herself from serving on a committee inquiring into beef prices, as the interest would be one held in common with many other people in the community. In the first instance it is a matter for individual committee members to judge whether they may have a conflict of interest in an inquiry.
The provision of the standing orders was given proper effect in 1955 when a member of the Committee of Privileges took no active part during an inquiry in which he was personally interested in that he was the Member who had raised the complaint. The House has resolved that a member of the Committee of Privileges be discharged from attendance on the committee during its consideration of particular matters. Another Member has been appointed to the committee in such cases.70 In the 37th Parliament a member of the Committee of Privileges did not participate in an inquiry concerning the unauthorised disclosure of information from another committee on which he served.71 In another inquiry by the committee in the same Parliament a Member who had spoken in the House when the matter was raised withdrew from the committee for the duration of the inquiry.72
On the appointment of members to the Select Committee on Grievances of Yirrkala Aborigines, a Minister on a point of order asked whether a Member who had been nominated to serve on the committee should be excluded from the committee because the Member was a litigant in related court proceedings. The Speaker stated:
. . . the Chair is not able to determine whether or not a member is personally interested in a committee’s inquiry and cannot properly be called upon to so decide. A member must be guided by his own feelings in the matter and by the dictates of respect due to the House and to himself. Having regard to the existence of the standing order and its terms, it is likely that if a matter of this kind is brought to issue it will be one for the House to decide.73
The Member served on the committee.
In other instances members of committees have decided not to participate in an inquiry or a facet of an inquiry because of conflict of interest considerations. In 1977 a member of the Joint Committee on the Australian Capital Territory chose not to take part in proceedings of the committee whilst items in which that member had an investment interest were under discussion. In 1981 a member of the Joint Committee of Public Accounts did not take part in that part of an inquiry dealing with the ACT Schools Authority because the member had chaired the Authority in the past.74
Where there may be the possibility of a conflict of interest of some kind, or of the perception of such a conflict, Members have made an oral declaration in the form of a statement or a written statement on the matter at a meeting of the committee at an early stage of the particular inquiry, even though, technically, there may have been no question of an infringement of the standing order.75
If the right of a Member to sit on a committee is challenged, the committee may report the matter to the House for resolution.76
A Member suspended from the service of the House may take part in committee proceedings (other than of the Main Committee) during the period of suspension.77
The Speaker is a member of the House and Library Committees ex officio and the Deputy Speaker is a member of the Selection Committee. The Deputy Speaker (together with the Deputy Senate President) are ex officio members of the Joint Standing Committee on the National Capital and External Territories. Ex officio members of the Joint Standing Committee on the New Parliament House included the Speaker and President of the Senate and the Minister responsible for administering the Parliament House Construction Authority Act.78
Other ex officio members of the Selection Committee are the Chief Government Whip, the Chief Opposition Whip and the Third Party Whip. The Leader of the House and the Deputy Leader of the Opposition are ex officio members of the Committee of Privileges but may nominate other Members to serve in their place.
Provision is rarely made for ex officio membership of committees other than committees concerned with the operations of the House or the Parliament. However, the chair of the Standing Committee on Expenditure (1976) was an ex officio member of the Joint Committee of Public Accounts and vice versa.79 This arrangement was intended to ensure adequate liaison between the two committees.80
The number of members of a committee is determined by the standing orders, by resolution, or by the Act establishing the committee.
In some cases provision may be made for numbers to be supplemented for individual inquiries, or for members to be substituted, to allow Members with particular expertise or interests to participate. A general purpose standing committee may be supplemented with up to two other Members for an inquiry.81 For the purposes of the consideration of a bill referred to a committee for an advisory report under the provisions of standing order 143(b), one or more members of the committee may be replaced by other Members by motion moved on notice.82
From time to time the number of members of a committee may be increased. In the case of committees appointed by standing or sessional order it is necessary to suspend (or amend) standing (and sessional) orders to enable this to be done.83
In most cases the standing order or resolution establishing a committee of the House will also determine the party composition of its membership—that is, by specifying the numbers of Members to be drawn from government and from non-government parties. In practice each party’s representation on a committee is equated as nearly as possible to its numerical strength in the House, and consequently the relevant standing orders may change from Parliament to Parliament to reflect election results. Special provision has sometimes been made for independent Members.84
The Members to be appointed are normally elected or selected within their respective parties. The process is organised by the whips. Independent Members liaise with the opposition whips in respect of non-government positions.
Members are formally appointed to or discharged from all committees on motion moved on notice or by leave.85 When the House is not sitting, and not expected to meet for at least two weeks, party whips may write to the Speaker nominating the appointment or discharge of a member. The change operates from the time the nomination is received by the Speaker. The Speaker reports the change to the House at the next sitting when it is confirmed by resolution.86
An unusual situation arose in 1952 because of the Opposition’s declared intention not to nominate members to serve on the proposed Joint Committee on Foreign Affairs. The resolution of appointment transmitted from the House was amended by the Senate to provide:
That the persons appointed for the time being to serve on the Committee shall constitute the Committee notwithstanding any failure by the Senate or the House of Representatives to appoint the full number of Senators or Members referred to in these resolutions.
The House agreed to the modification.87
On several occasions a resolution of appointment of a committee has specified that the membership be identical to that of its predecessor in the previous Parliament.88
A vacancy on a committee may occur for the following reasons:
If a Member no longer wishes to serve on a committee, the Member informs the whip of his or her party and should advise the chair of the committee in writing. A motion is then moved in the House by a Minister to discharge the Member from attendance on the committee. A replacement is also appointed by motion. Normally, both the discharge and the appointment are moved simultaneously in the one motion.89 A Member may not simply resign; the Member must be discharged by a motion moved in the House.90
In 2004 all opposition members of the Standing Committee on Constitutional and Legal Affairs were discharged (at their initiative) together, without replacement members being appointed.91 It was considered that as the committee had been properly constituted, it continued to be properly constituted despite the subsequent absence of members or a class of members specified in the membership provisions of standing order 222(b).
Standing order 232(a) provides that: ‘Before the start of business, a committee shall elect a government member as its Chair.’
Some resolutions of appointment have provided that the Prime Minister ‘nominate’ or ‘appoint’ one of the government members of the committee as chair.92 The resolution of appointment of the Joint Standing Committee on the New Parliament House provided for the Speaker and the President of the Senate to be joint chairs of the committee.93
In conducting the election of the chair, the committee secretary, having drawn attention to any special provision in the standing orders or resolution of appointment (such as a requirement that the committee elect a government member as chair), should call for nominations, each of which must be seconded. If only one member is nominated, as is usually the case, the secretary declares the member elected as chair and invites that member to take the chair. If more than one member is nominated, the election is conducted by secret ballot in accordance with the procedures set down by standing order 11 for the election of Speaker, Deputy Speaker and Second Deputy Speaker, as far as they are applicable.94
A Member may be elected chair in absentia. It is considered that the requirements for election of chair of a committee should not be more stringent than those applying to election of the chair of the Main Committee (that is, the Deputy Speaker).95
In 1974 the Select Committee on Specific Learning Difficulties was appointed without any provision in the resolution of appointment for the election or nomination of the chair.96 Under the standing orders at that time any member of the committee, including an opposition member, could have been elected chair. The committee had six members, three each from the government and opposition parties, which raised the possibility of a deadlock in the event of both a government and an opposition member being nominated and being supported on party lines. Before the committee held its first meeting, the House amended its resolution of appointment to increase its membership to seven by providing for an additional member to be nominated by the Prime Minister, thus giving the government party a majority. If the committee had met before this amendment had been agreed to and had elected a government member as chair, the opposition members would have had a majority of three to two in any division taken on party lines because the chair was only empowered to exercise a casting vote.
In 1976 the Joint Committee on the Parliamentary Committee System, in a special report to the House, sought an amendment of that part of the resolution of appointment which provided that the chair be elected by the committee from the members nominated by the Prime Minister or the Leader of the Government in the Senate. The committee wished to re-elect as chair the member who had been chair in the previous Parliament but who was now an opposition member. The committee argued that continuity would facilitate finalisation of the committee’s report.97 The House took no action on the proposal.
Usually the resolutions of appointment of joint standing committees98 or the resolutions supplementing statutory provisions99 provide that committees elect either a government member or a member nominated by the Government Whip or Leader of the Government in the Senate as chair, but this practice has not always been followed. For example, the Joint Select Committee on Parliamentary Privilege had such a provision in its first resolution of appointment in 1982. The provision was omitted when the committee was re-established in 1983 following a change of government, thus allowing the previous Chair, by then an opposition Member, to be re-elected.100 In respect of the Joint Standing Committee on the New Parliament House, the resolution provided for the Speaker and President to be joint chairs.101
In 1941 the chairs of several joint committees were appointed by name in the resolution establishing the committees.102 In some instances the House requested the Senate to appoint a Senator as chair, which it did.103 Such a request was again made and agreed to in 1957 in relation to the Joint Committee on Constitutional Review.104
The formal powers of a chair of a select committee have been described as being substantially the same as those of the chair of a committee of the whole House.105 As, under the former procedures, no appeal could be made to the Speaker regarding the decisions and rulings of the Chairman of Committees in a committee of the whole, it was considered that no appeal could be made regarding the decisions and rulings of a chair of a select or standing committee. Within the framework set by the House (in terms of the provisions of the standing orders and any resolution of appointment), formal authority over select and standing committee procedures therefore lies with the chair and the committee itself, and the Speaker may not take formal notice of committee proceedings in so far as purely procedural matters are concerned. During a committee meeting a chair’s procedural authority is as exclusive as that of the Speaker in the House.
While the Speaker’s advice is occasionally sought on complex procedural matters, there is rarely any scope for the Speaker to intervene on committee procedures. The Speaker would normally interfere in such matters only if they were of general significance or affected the allocation of resources to a committee, which is largely the Speaker’s responsibility. Nevertheless, Speakers’ rulings on procedural matters are significant as precedents. Further, committee chairs must have regard to the practice of the House where this is applicable to committee proceedings—for example, in respect of the sub judice convention (see p. 667).
Any concern about committee procedure or authority can be brought to the attention of the House in a special report, a dissenting report or in a debate on a motion that the House take note of a report. While these courses have been adopted, no formal action has been taken by the House.106 It is doubtful as to whether the Speaker, rather than the House, could exercise any authority in such a situation. In 1955 the Speaker replied to questioning on the extent of the powers and functions of the Committee of Privileges:
Such questions should not be directed to the Speaker; they are matters for the House, not for me. I am not a member of the Committee of Privileges. As the House appointed the committee, the House must answer questions in relation to it.107
Unlike the Speaker, the chair of a committee takes part in the substance of discussions, as well as playing a procedural role at hearings and deliberative meetings. A chair’s rights to take part in proceedings are no less than those of other members, except that in divisions the chair may only exercise a casting vote.108 However, the chair exercises a dual role, for example in ensuring that rights of witnesses are observed.
The Speaker, or an official appointed by the Speaker, has exclusive authority to approve expenditure for the running of the House.109 In 1944 three members of the Joint Committee on Social Security resigned from the committee in protest at the Speaker’s insistence that a parliamentary employee replace a public service employee who had earlier been seconded to serve as clerk to the committee (i.e. committee secretary) with the consent of the Speaker and on the recommendation of the committee. No action was taken by the House to question the Speaker’s exercise of his authority to appoint committee staff but some Members expressed disapproval.110 (The power of employment is now held by the Clerk of the House.111 )
The Speaker is not involved in normal day-to-day funding or related decisions in respect of committees, although a continual oversight of operations, administration and expenditure is maintained, and in instances involving unusual or large expenditures the Speaker’s approval may be sought. The Speaker’s statutory powers are clearly exclusive in these areas and a lack of a reference to the Speaker in resolutions of appointment or sessional orders does not diminish either the Speaker’s authority or obligations. In exercising these responsibilities it is considered that the Speaker would be obliged to intervene in committee operations where it was believed that a committee was using or seeking resources for activities which exceeded its delegated authority. Proposed overseas visits by the members of a committee are subject to the provision of additional funding by the Government. In such cases the Speaker’s support is first sought, and then, if the Speaker endorses the proposal, an approach is then made to the Prime Minister—see ‘Meetings overseas’ at page 692.
The chair of a committee has a role in respect of matters arising from committee operations but the committee itself may be involved in significant decisions or actions involving matters of principle. Within the framework set by relevant regulations and directions, and subject to the ultimate authority of the Speaker, technically decisions to authorise expenditure, as well as those relating to staffing matters, fall to the responsible parliamentary staff members (see p. 642).
Some joint committees are serviced by the Department of the Senate. In those instances the role and powers of the President of the Senate and the Clerk of the Senate are similar to those of the Speaker and the Clerk of the House, although in the case of the Senate the Appropriations and Staffing Committee may also be involved in some aspects.
Standing order 232(b) and most resolutions of appointment provide for a deputy chair to be elected by each committee. In the past, it has been provided on some occasions that the chair appoint a member of the committee as deputy chair ‘from time to time’—that is, as circumstances demanded. In such cases the same member was not necessarily appointed each time.112
In practice the deputy chair is normally an opposition member. The resolution of appointment of the Joint Committee on the Parliamentary Committee System directed that the committee elect as deputy chair one of the members nominated by the Leader of the Opposition. The deputy chair was also to be a member from a different House from the chair.113
Immediately upon election at the committee’s first meeting, the chair conducts the election of a deputy chair. It is considered that the provisions of standing order 14, which provide for the filling of a vacancy in the office of Deputy Speaker and Second Deputy Speaker should be followed as appropriate.
The deputy chair acts as chair of the committee at any time when the chair is not present at a meeting. If neither the Chair nor deputy Chair is present at a meeting, the members present elect another member to act as Chair at the meeting.114
Committee secretariats have three basic functions:
The Department of the House of Representatives provides secretariats for committees of the House, and some joint committees. The standing committees concerned with domestic or internal matters are usually staffed on a part-time basis.
Under the Parliamentary Services Act the Clerk of the House has the duties and powers of an employer in relation to departmental employees. Within the framework set by the Act committees are supported by small groups of employees. The detailed arrangements for secretariat support provided to investigatory committees serviced by the Department vary. A typical arrangement might comprise a committee secretary, perhaps two or more project/research officers (depending on the number of committees to be supported) and one or more support staff. Committee secretariats are usually required to support more than one committee. Allocation of additional staffing depends on the availability of funds and personnel, each committee’s terms of reference, the number of inquiries a committee is conducting, the nature of its operations, its reporting targets and the incidence of subcommittee operations.
Committees may be assisted by specialist advisers who are remunerated at agreed rates and receive reimbursement for travelling and incidental expenses. While witnesses are rarely paid a fee, this may be approved if a committee seeks from an expert witness evidence which, because of the time and effort required for its preparation, the committee could not reasonably expect the witness to produce without remuneration. However, it is more likely that a committee will employ specialist advisers, whose function equates more closely to that of the committee secretariat than to that of witnesses. Most are engaged only for the duration of a particular inquiry or even to perform a specific task of limited scope and they normally work on a part-time basis as required. Proposals to employ and pay expert witnesses or advisers must be submitted to a House employee authorised to approve such expenditure, who may approve them subject to the availability of funds. Many committees have employed expert advisers from time to time. Staff from the public service or the defence force may also be seconded to the Department on a full-time or part-time basis to provide specialist advice to committees and this form of support is frequently utilised.
Special arrangements made in 1984 in connection with the Senate Select Committee on the Conduct of a Judge are worthy of note. A senior member of the Brisbane Bar, Mr C. W. Pincus, QC, was appointed as counsel to advise the committee. In September 1984 the Senate Select Committee on Allegations Concerning a Judge was appointed, and the resolution of appointment provided that two Commissioners Assisting the Committee be appointed by resolution of the Senate. Each Commissioner was a recently retired Supreme Court judge, and they were permitted to be present at meetings of the committee and were able to participate in the committee’s deliberations and examine witnesses before the committee. The committee also appointed counsel to assist it.115
Section 49 of the Constitution confers on both Houses the powers, privileges and immunities possessed by the United Kingdom House of Commons in 1901. Section 50 confers on each House the right to make rules or orders concerning its powers and conduct of business. This power extends to committees and is delegated to a committee by the standing orders, by the resolution of appointment, or by the relevant statute.
A committee possesses no authority except that which it derives by delegation from the House or Houses appointing it, or which has been specifically bestowed by legislation in the case of statutory committees. The power of a House or joint committee is determined by the power possessed by the House or Houses and the degree to which this has been delegated.
‘Powers’ explicitly granted to a committee by the standing orders are:
While the use of the word ‘power’ is traditional, most of these matters can be regarded as authorisations. The real power possessed by a committee, as the word is more usually understood, is the power to order the attendance of witnesses and the production of documents.
These powers and authorisations apply to all committees of the House,116 except as provided in another standing or sessional order, or as otherwise ordered by the House. Similar powers are also generally included in resolutions establishing joint committees.
A committee’s powers should not be taken for granted. To determine the extent of the authority delegated to any committee, recourse must be had to the standing and sessional orders, and if applicable, to a committee’s resolution of appointment and any later amendments, and any other orders agreed to by the House subsequent to the committee’s appointment.
In the case of a statutory committee, the constituting Act must be consulted. In some cases the Act makes provisions for terms of reference, powers and procedures. This is the case in respect of the Joint Committee on Public Works, the Joint Committee of Public Accounts and Audit, and the Joint Committee on ASIO, ASIS and DSD. In some other cases, such as the Joint Committees on Corporations and Financial Services, the Australian Crime Commission, and Native Title and the Aboriginal and Torres Strait Islander Land Fund, it is provided that matters relating to the powers and proceedings of the committee shall be determined by resolution of both Houses of the Parliament.117 This approach may be seen as avoiding some of the practical and theoretical difficulties that could be associated with complex and detailed statutory provision for committees.
Some doubts have been expressed as to the precise extent of the investigatory powers which the Houses may exercise or delegate to committees. By virtue of section 49 of the Constitution the powers of the House and of committees to which it delegates these powers are those of the House of Commons at 1901. Based on this there could be a claim of extremely wide powers. In 1845 Lord Coleridge said that as the ‘general inquisitors of the realm’ the Commons could inquire into anything it wanted to. A corollary of this was the authority to compel the attendance of witnesses.118 The Commons exercised these powers in aid of both its legislative responsibilities and of its responsibility as the ‘Grand Inquest of the Nation’. There was no limit to the subject matters on which the Commons could legislate and as the ‘Grand Inquest of the Nation’ it considered itself entitled to advise or remonstrate with the Crown on all affairs of State and in regard to any grievance of the monarch’s subjects. Thus, there was no practical limit to the subject matters into which the House of Commons could inquire at 1901.
In R. v. Richards: ex parte Fitzpatrick and Browne the High Court held in unequivocal terms that section 49 is incapable of a restricted meaning and that the House of Representatives, until such time as it declares otherwise, enjoys the full powers, privileges and immunities of the United Kingdom House of Commons.119 If such is the case, either House of the Commonwealth Parliament, or its committees, could be said to have the power to conduct any inquiry into any matter in the public interest and to exercise, if necessary, compulsive powers to obtain evidence in any such inquiry.
On the other hand, there is the view that the compulsive investigatory powers which the House may delegate to its committees is limited to matters on which the Parliament may legislate. This view was argued on the basis of a judgment by the Judicial Committee of the Privy Council in 1914. It was held that the Commonwealth Parliament could not legislate to grant a royal commission, appointed by the Commonwealth Government, power to compel witnesses to attend and give evidence before it unless the royal commission’s terms of reference were limited to matters on which the Parliament could legislate.120 It has been suggested that neither House could achieve by resolution that which it could not achieve by statute and that consequently the limitations on the granting of compulsive powers to royal commissions must apply equally to the delegation of such powers to parliamentary committees.121 However, there must be some doubt as to whether a court would find the so-called Royal Commissions Case relevant to the question of the powers of parliamentary committees, as that case was concerned with a different form of inquiring body and the exercise of a different head of constitutional power.122
Attorney-General Greenwood and Solicitor-General Ellicott did not accept that the House has unlimited power of inquiry:
Although, for the time being, s. 49 of the Constitution has conferred on each House the powers of the Commons as at 1901, it does not, in our view, enlarge the functions which either House can exercise. In considering the effect of s. 49, it is important to bear in mind that there is a distinction between ‘powers’ and ‘functions’. The section, as we construe it, is intended to enable the Commonwealth Parliament to declare what the powers, privileges and immunities of its Houses and their members and committees shall be for the purpose of enabling them to discharge the functions committed to them under the Constitution. What the Commons did as ‘the Grand Inquest’ was not done in aid of its legislative function but represented the exercise of an independent and separate function said to be as important as that which it exercised as part of the legislature. However, it would not, in our view, be proper to construe s. 49 as conferring such an important and independent function on the Australian Houses of Parliament. Not only is it unlikely that such a function would be left to implication and then only until Parliament provided otherwise but the exercise of such a function by the House of Representatives or the Senate would in some respects be inconsistent with the Constitution. For instance, the notion that either House could impeach a person for trial before the other is inconsistent with the notion that judicial power is to be exercised by the Courts as provided in Chapter III. Again, the Commons could as the Grand Inquest inquire into any matter or grievance. It would surely be inconsistent with the federal nature of our Constitution that a House of the Commonwealth Parliament could inquire into a grievance which a citizen had in relation to the execution of a law wholly within State competence.
It is our view, therefore, that neither of the Houses of the Commonwealth Parliament has been vested with the function which the Commons exercised as the Grand Inquest of the Nation. This view was also expressed by Forster J. in Attorney-General v. Macfarlane & Ors.123
Nevertheless, the law officers differentiated between the virtually unlimited power of inquiry and the legal limitations of the inquiry power, which would arise only when it was sought to enforce that power, for example, by compelling persons to attend a parliamentary committee.124 A similar view was taken by Fullagar J. in Lockwood v. The Commonwealth.125
Even though Greenwood and Ellicott stated that there are legal limits to the facts and matters into which the Houses can, by compulsion, conduct an inquiry, for practical purposes they also noted that these limits are extremely wide, as a consideration of the various heads of Commonwealth legislative power will quickly reveal.126 They added that each House:
. . . is entitled to investigate executive action for the purpose of determining whether to advise, censure or withdraw confidence. It would indeed be odd if a House could not inquire into the administration of a department of State by a Minister in order to judge his competence before determining whether to advise him, censure him or withdraw its confidence in him. Each House of the Commonwealth Parliament can, therefore, in our view, as a necessary consequence of the existence of responsible government, exercise investigatory powers through committees in order to exercise what might broadly be called an advisory function.127
More recently a recognised authority on constitutional law, Professor Geoffrey Lindell, has reviewed these issues. Professor Lindell has observed that even if the power to establish parliamentary committees is federally limited, two factors would lessen the practical significance of such a limitation: the limitation may not come into play unless a committee was armed with powers to compel the attendance of witnesses and the production of documents, and the difficulty of establishing that a matter may never be relevant to the Commonwealth’s legislative powers.128
It may be a very long time before the courts make any authoritative judgment on the limits on the Houses in these matters. First, committees rarely use their compulsive powers but rather rely on voluntary assistance and co-operation. Secondly, political realities, conventions and courtesies arising from the federal framework of the Constitution are likely to continue to inhibit the House and its committees from pressing hard for information on matters wholly, or even largely, within the constitutional jurisdiction of the States (see ‘Evidence from State public servants and State Members’ at page 655). Thirdly, the courts have been reluctant to intervene in the affairs of the Parliament, particularly with respect to parliamentary privilege and the Houses’ powers to investigate and deal with alleged contempt, which underpin the Houses’ powers to compel the giving of evidence. (However, punitive action under the Parliamentary Privileges Act 1987 may involve a court of competent jurisdiction.)
Without authority from the House a committee has no power to compel witnesses to give oral or documentary evidence. The power to call witnesses and require that documents be produced is now given to all House committees by standing order 236,129 but may be limited by another standing order (as in the case of the Committee of Members’ Interests) or by resolution.
Special provisions have sometimes been made. When first appointing the Joint Committee on Foreign Affairs in 1952, the Houses imposed an unusual qualification on the committee’s power to send for persons, papers and records in the resolution:
. . . the Committee shall have no power to send for persons, papers or records without the concurrence of the Minister for External Affairs and all evidence submitted to the Committee shall be regarded as confidential to the Committee . . .130
The Committee of Members’ Interests has power to call for witnesses and documents but it may not exercise that power, or undertake an investigation of a person’s private interests, unless the action is approved by not less than four members of the committee other than the chair.131 The Parliamentary Joint Committee on ASIO, ASIS and DSD has, by virtue of the Act establishing the committee, some limitations in respect of the gathering and use of evidence.
A committee would have no authority to consider or use the evidence and records of a similar committee appointed in previous Parliaments or sessions without specific authority in a constituting Act or granted by the House. Standing authority in relation to House committees is now granted by standing order 237,132 but previously was granted to committees on an individual basis by the sessional or standing orders or resolution of appointment.
A committee may only exercise compulsive powers in relation to the matters which the House has delegated to the committee to investigate by way of its terms of reference.
Doubts have been expressed as to whether joint committees are invested with the same powers, privileges and immunities as the committees of the individual Houses.133 These doubts have been expressed because section 49 of the Constitution invests the two Houses and the committees of each House with the powers, privileges and immunities of the House of Commons at the time of Federation. No express mention is made of joint committees. If joint committees were not covered by section 49, the implications could have far-reaching and significant effects for those without relevant statutory provisions. However, it is relevant that section 3 of the Parliamentary Privileges Act 1987 provides that, in the Act, ‘committee’ means a committee of a House or of both Houses (and subcommittees).
In response to a request by the Joint Committee on War Expenditure in 1941, the Solicitor-General advised that in his opinion absolute privilege attached to evidence given before a joint committee just as it did to evidence given before a select committee of one House. He also gave the opinion that a joint committee authorised to send for persons, papers and records had power to summon witnesses. He suggested that it was doubtful, however, whether a joint committee had the power to administer oaths to witnesses.134
A number of provisions in Commonwealth Acts prohibit the disclosure of certain information and create criminal offences for disclosure in contravention of the provisions. Examples are to be found in the Income Tax Assessment Act and the Family Law Act. The application of such provisions could become an issue in respect of either House directly, but is more likely to arise in respect of committee inquiries, and did so in 1990 and 1991. Different views were expressed as to whether such provisions prevented the provision of such information to a committee, but in August 1991 the Solicitor-General advised as follows:
Although express words are not required, a sufficiently clear intention that the provision is a declaration under section 49 must be discernible. Accordingly, a general and almost unqualified prohibition on disclosure is, in my view, insufficient to embrace disclosure to Committees. The nature of section 49 requires something more specific.135
(The advice went on to state that certain provisions in the National Crime Authority Act which limited activities of the Joint Committee on the National Crime Authority were sufficient to fetter the otherwise wide powers of the committee.)
It is also to be noted that should informati