Conduct of inquiries
Referral of matters for inquiry
The range of matters a committee is able to investigate or inquire into is restricted by the terms of reference contained in the relevant standing or sessional orders or resolution of appointment (or Act, in the case of a statutory committee). A committee may have no power of inquiry or it may be free to determine its own inquiries within a general subject area (e.g. Procedure Committee). However, in a majority of cases, inquiries are referred by the House, a Minister, or in some cases the Speaker. A matter may also be referred to a committee by legislation.
In practice committees may either take the initiative and seek a reference or at least be involved in considering and negotiating suitable terms of reference. In addition, the ability of general purpose standing committees to initiate any inquiry they wish to make into annual reports of government departments and authorities and Auditor-General’s reports  has enabled them to conduct inquiries into a wide range of matters. In practice the need to relate an inquiry to an annual report has been interpreted as permitting committees to take evidence in relation to any subject mentioned in a report in their area of responsibility. A committee’s investigation is not limited to developments occurring during the period covered by the report. The six-monthly hearings during which the Governor of the Reserve Bank briefs the Standing Committee on Economics on current developments in monetary policy take place under the guise of the committee’s review of the Reserve Bank annual report of the previous financial year.
When a matter is referred to a committee, the committee normally formally resolves to accept the reference. It has been considered that, although a Minister may refer a matter to a committee, a Minister is not able to withdraw a reference from a committee.
Scope of inquiry and procedures
The standing or sessional orders or resolution of appointment define the nature and limits of the authority delegated to each committee by the House. They contain the committee’s terms of reference and powers and may contain directions which the House wishes to give, for example, in relation to procedures. A resolution may modify or extend the provisions of the standing orders and in these cases it is standard practice to include the following paragraph:
That the foregoing provisions of this resolution, so far as they are inconsistent with the standing orders, have effect notwithstanding anything contained in the standing orders.
Change to scope of inquiry or procedures
Amendments to resolutions of appointment have usually been initiated directly or indirectly by the committee itself. Normally a committee seeks an amendment through the Leader of the House or the Minister associated with the committee’s field of inquiry. If the proposed amendment has the Government’s support, the Leader of the House or the Minister then moves for its adoption by the House. It is rare for the chair of the committee to move such an amendment. Motions for controversial or unusual amendments have occasionally been preceded by the presentation of a special report by the committee explaining the need for the amendment. Amendments have included extension of time for reporting, alteration of quorum size, extension of powers, change in the number of Members, and extension of the terms of reference.
Invitation of submissions
It needs to be stressed that most witnesses, far from needing to be compelled to give evidence, welcome the opportunity to do so. Soon after subjects are adopted for inquiry, committees usually publicise their terms of reference and their desire to receive submissions from interested individuals or organisations. In addition, letters or messages inviting submissions may be sent directly to those who are thought to have a special interest or expertise in the field under investigation. It is completely within a committee’s discretion to decide whether or not a person who has lodged a submission should be invited to appear as a witness. When persons give oral evidence their examination is usually substantially based on their written submissions, but it is not considered that committee members must confine their questions to matters dealt with in submissions. Witnesses may also be asked their opinions of other evidence. Sometimes oral evidence is thought unnecessary and no invitation is issued. (See page 687 for further commentary on submissions and exhibits.)
Sometimes, depending on the particular circumstances, a person who has not lodged a written submission is granted the opportunity to give evidence at a hearing. Committees need however to have some knowledge of the nature of evidence to be presented so that they can consider in advance, for example:
- whether the prospective witness is likely to be acting in good faith;
- whether the evidence is likely to be relevant and/or useful in the inquiry;
- what lines of questioning they would like to adopt; and
- whether the evidence should be taken in private.
Occasionally committees have sent questionnaires to appropriate organisations and used the responses to these questionnaires to form the basis for questioning at hearings.
If a witness declines an invitation to give evidence, a committee may order the witness to attend the committee by summons, issued by the committee secretary. The form of the summons is not prescribed by standing orders or by statute.
It appears to have been the practice of committees established in the early years of the Parliament to issue what were called ‘summonses’ to prospective witnesses, whether or not they had shown any reluctance to appear. Contemporary practice is for prospective witnesses to be invited to appear before the committee. The Procedure Committee has proposed the adoption of the following provision:
A witness shall be invited to attend a committee meeting to give evidence. Whether or not a witness was previously invited to appear, a witness shall be summoned to appear only when the committee has made a decision that the circumstances warrant the issue of a summons.
In 1963 the Joint Select Committee on Parliamentary and Government Publications summonsed two witnesses to appear before it. The witnesses were required to give evidence in relation to alleged threats to a witness because of evidence he had given to the committee. Each summons, which was signed by the clerk to the committee (i.e. committee secretary), showed the full name, designation and address of the person being summonsed.
On occasion witnesses, although not unwilling to give evidence, have not wanted to be seen as appearing on their own initiative—for example, because of concerns that the evidence that they might give could affect future employment prospects or affect business relationships with other witnesses. In such cases committees have assisted witnesses by summonsing them to appear. The use of a summons has also been considered necessary where evidence was sought from a witness on matters subject to a requirement of confidentiality.
On relatively rare occasions, committees intent upon obtaining evidence from particular individuals or organisations reluctant to provide it have drawn attention to their powers to compel the giving of evidence and to the possibility that failure to comply with their orders might be dealt with as a contempt of the House. This approach has usually avoided the necessity of resorting to the issue of a summons.
It is unlikely that the House would take any action against, or in relation to, a recusant witness until that witness had refused or neglected to obey a formal summons. Failure to accept an invitation or request to appear before a committee could not be interpreted as a failure to obey an order of the committee. This view was supported by the Attorney-General in 1951 when the Senate Select Committee on National Service in the Defence Force reported to the Senate the failure of the Chiefs of Staff of the armed services and other specified officers of the Commonwealth service to appear before it (see page 684).
In 2000 a witness was summonsed to appear before the Joint Standing Committee on Electoral Matters after he had been invited and had agreed to appear at a public hearing, but had failed to appear. The witness also failed to appear in response to the summons. However, he contacted the committee secretariat to explain his reasons for not attending, and appeared before a subsequent public hearing, and the committee did not take the matter of the failure to respond to the summons further. In the 40th Parliament a public service official who had declined an invitation to appear before a joint committee was summonsed but still did not appear. The committee sought an explanation from the agency head and the official later appeared voluntarily.
Witness in prison
There is no longer an explicit House standing order relating to a witness in custody. According to May, when a witness is in prison, the person responsible for the prisoner’s custody may be directed by warrant issued by the Speaker to bring the witness to be examined. If a joint committee were to require a witness to be brought from prison, it would appear to be desirable that the warrant be issued jointly by the Speaker and the President. In 2000 a witness serving a sentence appeared before a joint committee, but she did so voluntarily and with the co-operation of the prison authorities.
Answers to questions, provision of information
A committee may demand that witnesses answer questions. May states that witnesses are bound to answer all questions put to them and cannot be excused on grounds such as that:
- they may become subject to a civil action;
- they have taken an oath not to disclose a matter;
- a matter was a privileged communication (for example by a client to a solicitor);
- they have been advised that they cannot answer without the risk of incriminating themselves or being exposed to a civil suit; or
- they would be prejudiced as defendants in pending litigation.
It is acknowledged that some of these grounds would be accepted in a court of law. May also notes that a witness cannot refuse to produce documents in his or her possession on the ground that they are under the control of a client who has given instructions that they not be disclosed without the client’s authority.
Section 10 of the Evidence Act 1995 provides that that Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.
As a committee may only exercise compulsive powers in relation to matters which the House has delegated to the committee by way of its terms of reference, a witness may object to a question on the grounds that it is outside the committee’s terms of reference or that the terms of reference are outside the House’s constitutional powers.
If a witness objects to a question the committee may, and frequently does, exercise its discretion in the witness’s favour. If the objection is overruled, the witness is required to present the oral or documentary evidence required. Failure to provide such evidence may be reported to the House and the witness may be punished for contempt.
The Standing Committee on Procedure has proposed the adoption of the following provisions:
The Chair of a committee shall take care to ensure that all questions put to witnesses are relevant to the committee’s inquiry and that the information sought by those questions is necessary for the purpose of that inquiry.
When a witness objects to answering any question put to him or her on any ground, including the grounds that it is not relevant, or that it may tend to incriminate him or her, he or she shall be invited to state the ground upon which he or she objects to answering the question. The committee may then consider, in camera, whether it will insist upon an answer to the question. The committee shall have regard to the relevance of the question to the committee’s inquiry and the importance to the inquiry of the information sought by the question. If the committee determines that it requires an answer to the question, the witness shall be informed of that determination, and of the reasons for it, and shall be required to answer the question in camera, unless the committee resolves that it is essential that it be answered in public. When a witness declines to answer a question to which a committee has required an answer, the committee may report the facts to the House.
(See also comments on page 914 about statutory secrecy provisions.)
In 1982 the Joint Committee of Public Accounts summonsed the Commonwealth Crown Solicitor to appear before it with a number of files the committee considered would be pertinent to an inquiry. The Crown Solicitor refused to produce the documents sought by the committee, and in answer to a question without notice the Attorney-General stated that the reason the Crown Solicitor would not produce the documents was on the ground of legal professional privilege. On the following day the chair of the committee, by leave, made a statement to the House to the effect that the Commonwealth Crown Solicitor’s claim was inappropriate. In addition, the chair incorporated a legal opinion supporting the committee’s argument and the chair also drew attention to the Greenwood and Ellicott paper which stated:
It also follows from the wide powers which committees can exercise that, if ordered to produce a document which contained communications which were privileged before Courts of law (e.g. between solicitor and client), a person would be in contempt if he did not do so.
Although these privileged communications are usually respected by committees, committees are not restricted in the same way as the Courts.
Committees have at times had to negotiate with witnesses who were reluctant to provide specified evidence. The success of committees in such negotiations has been largely due to their ability to draw attention to their undoubted powers and the means by which they may be enforced.
The Procedure Committee has proposed the adoption of the following provision to be observed by committees:
When a committee desires that a witness produce documents or records relevant to the committee’s inquiry, the witness shall be invited to do so. Whether or not an invitation to produce documents or records has previously been made, an order that documents or records be produced shall be made only when the committee has made a decision that the circumstances warrant such an order.
Evidence from Commonwealth public servants
In 1989 a government paper entitled Government guidelines for official witnesses before parliamentary committees and related matters was presented to the House. This paper set down similar guidelines to those originally presented in 1978 and updated in 1984. As the title suggests the guidelines are intended to provide general guidance, and not inflexible rules. Basically their purpose is to assist Commonwealth public servants appearing before parliamentary committees by informing them of the principles they are required by the Government to follow. However, the guidelines state that they must be read in conjunction with relevant parliamentary and statutory provisions.
The guidelines set out the Government’s views on matters such as: attendance at committee hearings; the Government’s expectations in the content of submissions; privilege considerations; aspects which might give rise to claims for public interest immunity; publication provisions; means of correcting evidence; and discretions relating to the extent to which the guidelines are applied.
Whilst these guidelines have not been accepted or endorsed by either House, they were issued after consultation with parliamentary staff and should be regarded as an attempt to assist government personnel and the Parliament by setting down the basic position of the Executive on a wide range of detailed matters connected with the operations of committees.
In 1969 the Joint Committee of Public Accounts set down its practice on questions to public servants about government policy. This practice, while to some extent reflecting the particular concerns of that committee, nevertheless represents a sensible balance between meeting the needs of most investigatory committees and recognising the role and responsibility of public servants. The joint committee said:
This Committee does not examine public servants on matters of Government policy. The understanding of Government policy, however, is itself essential to the effective operation of the Committee during specific inquiries as the Committee is concerned with the administrative out-workings of such policy. In these circumstances, the Committee has normally proceeded on the basis of asking public servants to outline for it the particular policy of the Government which is being administered by them. It does not ask public servants, however, to comment on the adequacy of such policies. It is not unusual to find that in the implementation of Government policy, departments and authorities develop administrative policies. In the past, the Committee has regarded this type of policy as within its purview and has examined public servants in the administrative policy field.
This practice is acknowledged in the 1989 government guidelines.
The Standing Committee on Procedure has recommended the adoption of the following provision to be observed by committees of the House:
An employee of a department or executive agency shall not be asked to give opinions on matters of policy, and shall be given reasonable opportunity to refer questions asked of him or her to a higher level manager or to the appropriate Minister.
(See also ‘Public interest immunity’ at page 683.)
Evidence from State public servants and State Members
State public servants have appeared before House and joint committees in response to an invitation. The need to have due regard to the position and responsibilities of State and Territory Governments is recognised. Most recent practice has been for committee chairs to write to the relevant State or Territory Premiers or Chief Ministers seeking co-operation with inquiries. Subsequently contact may occur at staff level. Co-operation is usually forthcoming but in some cases State Governments have been seen as unhelpful because of either refusal to co-operate or failure to contribute to an inquiry.
As with Commonwealth officials it is accepted practice that State officials will not be asked to comment on government policy. In fact, State authorities have often insisted on agreement to this condition before permitting their officials to give evidence. Committee requests for personal appearances by State officials are usually directed to the relevant Minister, unless a contact official has been nominated, and adequate notice of the need for attendance is given.
The question of State public servants being compelled to give evidence before committees of the House of Representatives poses special problems, as constitutional issues are added to those relating to the role and responsibilities of government officials.
As noted at page 910, it is unclear in law as to whether the Commonwealth Houses and their committees have the full investigatory powers of the House of Commons or whether they are limited to those matters on which the Commonwealth Parliament may legislate. If the latter were the case, committees of the House could not expect that any demand that witnesses attend before them and give evidence on matters outside these constitutional limits could be enforced; beyond those limits evidence could be sought only on a voluntary basis from any person.
No committee of the Commonwealth Parliament has been prepared to summons a State public servant or Minister to give documentary or oral evidence which they have been unwilling to provide. If such a summons were issued, a State Government could seek to challenge it in the High Court or simply claim public interest immunity. In the highly unlikely event of either House of the Commonwealth Parliament attempting to deal with a State Minister or Government for contempt, the matter would appear to be one to be decided by the High Court.
In 1953 the Parliamentary Standing Committee on Public Works sought the Solicitor-General’s advice as to its power to summons a State official to give evidence before it. The Solicitor-General considered the matter so doubtful that the advice given was against making a test case by summoning a State official. The relevance of this opinion to the powers of other committees is unclear as the Public Works Committee derives its power from statute, whereas committees appointed by resolution or pursuant to standing or sessional orders, given the appropriate authority, enjoy the powers of committees of the House of Commons as at 1901 by virtue of section 49 of the Constitution.
In light of the unclear constitutional situation, a committee would be wise to assume it would be found not to have authority to summons State officials or State Ministers to provide oral or documentary evidence where such persons have not provided material requested. A further complication could arise in the case of a former or retired State official. It would seem that if such a person is a citizen without any immunity he or she could be compelled to appear. However, difficult questions could arise if a committee sought to compel the production of information in respect of his or her duties as a State official. Advice can be sought in particular cases, and this was done in 1982 when the Standing Committee on Aboriginal Affairs was concerned over what it regarded as a lack of co-operation by a State Government in two of its inquiries. The committee sought the Attorney-General’s advice, which confirmed that the committee did not have the power to require the attendance of State officials. If the resolution of appointment of the committee was to be amended to give the committee this power, then the Attorney-General’s advice was that serious constitutional questions would arise. The committee felt that it was being hampered in making worthwhile recommendations and it reported its view that the State Government deserved strong condemnation for its lack of willingness to co-operate with the committee.
During the course of an inquiry into the Australian Loan Council in 1993 a Senate select committee sought to receive evidence from five Members of State Parliaments. The committee recommended in a special report that the Senate ask the State Houses involved to require the attendance of the Members in question. The Senate passed such a motion. Odgers reports that the Houses of the Victorian Parliament did not agree to require their Members to attend, but gave leave for them to appear if they thought fit and the Legislative Assembly of New South Wales accepted a statement by its Speaker that it did not have the power to compel its Members to appear before the committee. In the event none of the Members listed in the motion gave evidence.
In 2006 a Tasmanian government Minister and a Western Australian government Parliamentary Secretary appeared voluntarily before the Standing Committee on Family and Human Services. Neither was sworn although it was the practice of the committee at the time to swear witnesses. It was considered that there was some doubt about the committee’s power to swear witnesses from another Parliament.
Evidence from Members and Senators
Members or Senators may appear as witnesses before committees of the House. If a Member, including a Minister, volunteers to appear before a House committee the Member may do so and does not need to seek leave of the House. Ministers, including a Prime Minister, have appeared before committees of the House, and Ministers have briefed general purpose standing committees at the commencement of inquiries, or held discussions with committee members concerning possible inquiries.
A Member who has submitted himself to examination without any order of the House is treated like any other witness.
If a committee wishes a Member to attend as a witness, the chair writes inviting the Member to attend. If the Member refuses to attend or to give evidence or information as a witness, the committee cannot summon the Member again, but must advise the House. It is then for the House to determine the matter. These procedures have never had to be implemented in the House of Representatives. In appearing before the Committee of Privileges, Members (and Senators) have been required to swear an oath or make an affirmation and have been dealt with in the same manner as other witnesses.
Senators cannot be compelled by the House to appear before it or before one of its committees, or to produce evidence. The same applies to Members in relation to the Senate and its committees. This immunity is entrenched practice, but derives ultimately from section 49 of the Constitution.
In 1920 a Senator of his own volition sought consent of the Senate to appear before a House of Representatives committee. The Senate, by motion, granted the Senator leave to attend and give evidence to the committee if he thought fit. However, in 1973 and 1976 Senators appeared before the House of Representatives Standing Committee on Environment and Conservation without seeking leave of the Senate. Their appearance was at their own request. In 1994 members of a Senate committee attended a private meeting of the House Procedure Committee for informal discussions on the Senate committee’s experience with videoconference technology.
There have been several instances of Members of the House who have appeared, as Ministers, before Senate committees. In 1981 the Speaker appeared voluntarily before the Senate Select Committee on Parliament’s Appropriations and Staffing. In the same year the chair of the Senate Standing Committee on Finance and Government Operations wrote to a former Minister regarding an apparent conflict in evidence given to the committee during the course of its inquiry into the Australian Dairy Corporation and its Asian subsidiaries. The former Minister, who at the time had another portfolio, wrote to the committee. There was still a discrepancy between the sworn evidence of one witness and the recollections of the Minister as expressed in the letter. As a result of further correspondence the Minister made a personal explanation in the House of Representatives. During the course of this personal explanation the Minister stated:
I do not believe it appropriate that a Minister of this House should appear and give sworn evidence before a committee of the other House.
A copy of this personal explanation was forwarded to the committee and the chair made a statement to the Senate shortly afterwards.
Standing orders of both Houses set down procedures to be followed if a member of the other House is to be called to give evidence before a committee. If a committee of the House wishes to call before it a Senator who has not volunteered to appear before it as a witness, a message is sent to the Senate by the House requesting the Senate to give leave to the Senator to attend for examination. Upon receiving such a request the Senate may authorise the Senator to attend. In 1901 the Senate ordered that a Senator have leave to give evidence before the Select Committee on Coinage if that Senator thought fit and, in response to a request from the House of Representatives, the Senate has granted leave to authorised Senators to attend and give evidence before the House of Representatives Committee of Privileges. The Senators appeared and gave evidence having sworn oaths/made affirmations. On 7 March 2001 the Senate gave leave to seven Senators, members of the Joint Standing Committee on Foreign Affairs, Defence and Trade, to appear before the House Privileges Committee, ‘subject to the rule, applied in the Senate by rulings of the President, that one House of the Parliament may not inquire into or adjudge the conduct of a member of the other House’.
Using similar procedures to those followed by the House, the Senate has requested that Members of the House be given leave to attend and be examined by Senate committees. House standing order 252(a) provides that if the Senate asks the House by message for a Member to attend before the Senate or one of its committees, the House may authorise the Member to attend, provided the Member agrees. In its early years the House several times resolved to grant such leave to Members, adding the qualification that the Member may attend and give evidence ‘if he think fit’. In 1913 the House considered a request from the Senate that six named Members, including the Prime Minister, be granted leave to be examined as witnesses before the Senate Select Committee on General Elections. On motion moved by the Prime Minister, the House resolved to grant such leave only to three of the Members, all of them opposition Members. The Prime Minister explained that the three government Members whose attendance had been requested were not included in the motion because they did not desire to attend. After the receipt of the message from the House was announced in the Senate, the President stated in answer to a question:
The Senate sent a request to the House of Representatives; but it is no part of our duty, nor have we any right to dictate to the House of Representatives as to what it should or should not do. We have no right to ask it to give reasons as to why it has complied with a part and not the whole of our request.
A similar request for the attendance of Members before another Senate committee was received later on the same day and was dealt with in the same manner.
In 1993 the Senate requested the House to require the attendance of the Treasurer before a Senate select committee. The request was considered by the House, but rejected, in the following terms:
That the House of Representatives…:
- notes that the Senate’s request that the House require the attendance of a Member of the House before a committee of the Senate does not conform with the practice of requesting the House to give leave for a Member to attend;
- resolves that it is not appropriate that a Minister of this House should appear and give evidence before a committee of the Senate against the Minister’s will;
- further resolves that it is not appropriate that any Member of the House of Representatives be required to appear before a committee of the Senate against the Member’s will;
- confirms that it is for each Member to determine whether the Member thinks fit to appear before a committee of the Senate; and
- declines to require the Honourable John Dawkins MP to attend before the Senate Select Committee on the Functions, Powers and Operation of the Australian Loan Council.
In 1901 the House granted a Member leave, if he thought fit, to attend and be examined by a select committee of the Victorian Legislative Assembly.
The Speaker has declined an invitation to make a submission to the Senate Committee of Privileges in connection with an inquiry into matters arising at a joint meeting of the Houses held in October 2003, instead referring the committee to a statement he had made in the House. In 2005 Speaker Hawker made a written submission to the Senate Committee of Privileges in connection with a general inquiry into the unauthorised disclosure of committee information.
Evidence from former Members and Senators
Opinions differ over whether the immunity of Members and Senators from compulsion by the other House extends to former Members and Senators. Odgers asserts that it does not, citing the case of a former Treasurer and a former Prime Minister, no longer Members, being summonsed to appear before a Senate committee in 1994. This question again arose in 2002 during the inquiry by the Senate Select Committee on a Certain Maritime Incident. Legal opinions provided to the committee and advice from the Clerk of the House and the Clerk of the Senate did not agree on whether the former Minister for Defence, a former Member of the House, could be compelled to give evidence to the committee relating to his conduct as a Minister and Member. The view of the Clerk of the House was that the immunity probably extended to former Members. The committee accepted the view of the Clerk of the Senate, but decided not to summons the former Minister, stating that it believed the summons would be contested in the courts, incurring expense for the taxpayer and causing delay to the inquiry.
Evidence from parliamentary staff
If a committee of the House wishes to call a Senate staff member to give evidence, a message is sent to the Senate by the House requesting the Senate to give leave to the staff member to attend for examination. Upon receiving such a request the Senate may authorise the staff member to attend the committee. If the Senate were to ask the House by message for an employee of the House to attend before the Senate or one of its committees, the House may instruct its own employee to attend.
In 1975 the Joint Committee on the Parliamentary Committee System formally sought the agreement of the Clerk of the House to the appearance before it of two employees of his department. It was noted that the standing orders concerning the appearance of parliamentary staff before committees were always interpreted liberally. Formal approval was sought in this case because the staff concerned sought to present personal views rather than to speak on behalf of the department. The Clerk gave approval.
In 1971, at the request of the Committee of Privileges, the Clerk Assistant and the Serjeant-at-Arms appeared before the committee to give their account of the proceedings referred to in the article in the Daily Telegraph which had been referred to the committee for examination. In 1973 the Secretary of the Joint Committee on Prices appeared before the Committee of Privileges and in 1987 members of a select committee secretariat gave evidence to the committee. In 1978 the Clerk of the House and the Serjeant-at-Arms appeared before the Senate Committee of Privileges to give evidence in relation to the security of Parliament House. The Clerk and other House staff have appeared informally before the Broadcasting Committee and the Procedure Committee to discuss matters being considered by the committee. At the request of the Standing Committee on Community Affairs, the Assistant Secretary (Committees) appeared at a public hearing of the committee in 1995 in relation to its inquiry into migrant access and equity.
In recent years the Clerk of the House has lodged written submissions addressing issues relevant to the administration or interests of the Department of the House of Representatives to several committee inquiries. The Clerk and senior officers also gave oral evidence in association with the submissions.
Secretariat staff members of joint committees have appeared before the Privileges Committee in relation to inquiries into the possible unauthorised disclosure of proceedings or private evidence.
Evidence from judges
Judges have appeared as witnesses before House committees. These appearances have been voluntary and have concerned matters of law and policy.
Public interest immunity
The Executive Government may seek to claim immunity from requests or orders by a committee for the production of certain oral or documentary evidence on the grounds that the disclosure of the evidence would be prejudicial to the public interest. (More general aspects of the doctrine of ‘public interest immunity’, sometimes described as ‘crown privilege’, are covered in the Chapter on ‘Documents’.)
The Government’s strong position
Commonwealth public servants appearing before committees as private individuals to give evidence unrelated to their past or present duties as public servants, are bound by orders of a committee. They are open to the same penalties as any other citizen if they do not obey. While in principle they are equally bound when summoned to give evidence relating to their official duties, in practice their position is somewhat different. This is particularly so with respect to failure or refusal to answer a committee’s questions. They may, under certain circumstances and on behalf of their Minister, claim public interest immunity. It is doubtful, however, whether a public servant, even on instructions from a Minister or the Government, could refuse or fail to obey a summons to attend before a committee.
The Joint Committee on the Parliamentary Committee System reported that the application of the rules of public interest immunity was ‘one of the most vexed questions of committee procedure’. It concluded:
Notwithstanding the authoritative literature and knowledge of the application of the rule in other Commonwealth Parliaments the Committee finds itself unable to offer any clarification of the rules.
Public interest immunity in relation to parliamentary proceedings involves the following considerations:
- the belief that the House’s power to require the production of documents and giving of evidence is, for all practical purposes, unlimited;
- the view that it would be contrary to the public interest for certain information held by the Government to be disclosed; and
- the fact that the Government, by definition, has the support of the majority in the House and, by standing order or resolution of the House, on its committees.
There is obvious potential for Governments, by use of their strong position in this regard, to undermine the efforts of the House and its committees to call Governments to account. The Joint Committee on the Parliamentary Committee System commented:
It is clear that crown privilege is relied on by governments to protect themselves. The protection of the confidentiality of advice to Ministers or security matters is a shield behind which witnesses sometimes retreat.
The principles upon which Governments have proceeded to deal with public interest immunity were summarised by Greenwood and Ellicott. They drew on two documents in particular, namely, a letter of November 1953 to the Joint Committee of Public Accounts from the Prime Minister and a letter of September 1956 from the Solicitor-General to the Senate Regulations and Ordinances Committee. These principles have been substantially incorporated in the Government’s Guidelines for official witnesses before parliamentary committees and related matters. Key points in the guidelines include the following:
- the privilege involved is not that of the witness but that of the Crown;
- if a witness attends to give evidence on any matter in which it appears that issues of public interest immunity may be concerned, the witness should endeavour to obtain instructions from a Minister beforehand as to the questions, if any, which the witness should not answer;
- if questions arise unexpectedly in the course of an inquiry, the witness should request postponement of the taking of evidence to enable the Minister to be consulted;
- if the Minister decides to claim immunity, normally the Minister should write to the committee chair to that effect;
- should the committee regard information about which a claim for public interest immunity may be made as necessary, consideration should be given to agreeing on a means of making it available in some other form, such as private evidence; and
- before deciding whether to grant a certificate, the Minister should carefully consider the matter in the light of the relevant principles.
It needs to be emphasised that the fourth point, regarding a letter from a Minister to a committee, simply recognises that it is the Minister, not a staff member, who may claim public interest immunity. In this respect it therefore represents sound practice. However, as already indicated, a committee may negotiate further with a Minister or the Prime Minister. Ultimately it is, in principle, open to the committee to challenge the Minister’s claim in the House by raising the Minister’s or the Government’s behaviour as a possible contempt of the House.
The reality of the Government’s effective capacity to refuse to disclose information or documents to the House or its committees, no matter how important they might be for an investigation, is not lost on Members. Neither the House nor the Senate has ever persisted in its demands for government documents or oral evidence to the point where a charge of contempt has been laid.
In 1951 the Government directed that the Chiefs of Staff of the armed forces and other officials should not attend before a Senate select committee inquiry into national service. The grounds upon which the Government based its direction are of interest. In the first instance the Prime Minister indicated that permanent officers of the armed services or the public service should not be expected to comment on government policy, and that they would have no alternative but to claim privilege if such opinions were sought. He therefore saw little purpose in their attendance. The committee chair responded to the Acting Prime Minister that the committee was primarily concerned with factual evidence, not with comment and opinions on government policy, and that it would therefore invite the officials to give evidence. After the officials had received letters inviting them to attend to give evidence the Acting Prime Minister informed the committee that Cabinet considered the officials’ participation in the inquiry ‘would be against the public interest’. He stated further:
It is quite impossible to draw the line between what your Committee may call ‘‘factual’’ and what is ‘‘policy’’, and it should not be for any official or for the Committee, in the view of the Government on matters which may touch security, to decide whether it is either one or the other.
The failure of the committee to summons the officials was not mentioned but the Attorney-General subsequently referred to it in debate.
In its report to the Senate the committee acknowledged that it was for the Senate itself to decide on any action to be taken. The committee, nevertheless, drew attention to established practice that neither House of the Parliament could punish any breach or contempt offered to it by any member of the other House. It recommended therefore that in so far as House of Representatives members of Cabinet were concerned, a statement of the facts should be forwarded to that House for its consideration. As to the Senate members of Cabinet the committee recommended:
…if the Senate decides that a breach of privilege has been committed, the action to be taken by the Senate should be aimed at asserting and upholding the cherished principle of the right of the Senate to the free exercise of its authority without interference from the Cabinet.
The special report was presented to the Senate and a motion for its adoption was moved. The debate on the motion was not concluded when the Senate was dissolved on 19 March 1951. As the matter was not revived the issues were left unresolved. It could be argued, as the committee did, that the failure to issue a summons was not the central issue, as this was not given as a ground for the Government’s refusal to permit the officers to attend.
Significant factors in the case were that the committee consisted entirely of opposition Senators, and also that the Opposition held a majority in the Senate at the time. If this had not been so, it can be surmised that events would have been very different—indeed the committee may not have been appointed. The case perhaps best illustrates the importance of party-political realities in any consideration of parliamentary access to information held by the Government.
In 1975 the Senate Committee of Privileges reported on the refusal of officials, at the direction of the Government, to give oral or documentary evidence at the Bar of the Senate on the Whitlam Government’s overseas loans negotiations. The committee divided on party lines.
In 1967 the Joint Committee on the Australian Capital Territory requested the Department of the Interior to produce all relevant papers in connection with applications to subdivide rural land in the Australian Capital Territory and certain acquisitions. The department, on the advice of the Attorney-General, replied:
Advice now received is that the Minister can properly object to produce to a Parliamentary Committee Departmental documents that disclose the nature of recommendations or advice given by officials, either directly to Ministers or to other officials, in the course of policy making and administration. If it were otherwise, there would be a danger that officials would be deterred from giving full and frank advice to the Government.
On the basis of this advice, the Minister has personally considered what documents should be given to your Committee; he has decided that he must object to the production of documents to the Committee that represent recommendations or advice given or to be given to the Government by public officials, for the reason that these are a class of document which it would be contrary to the public interest to disclose.
However, documents that do not come within this category and are relevant to the matters mentioned in your letters of 28th and 30th November, are produced for the Committee’s examination. These papers provide the factual information requested by the Committee.
The committee did not press for the other documents requested.
While objections by officials to presenting certain evidence have sometimes been readily accepted, the evidence has at times been so important that a committee has persisted. This persistence has taken the form of requiring the witness or prospective witness to consult with the departmental secretary or Minister, or of the committee or its chair negotiating with the departmental secretary or the Minister.
In 1977 a subcommittee of the Standing Committee on Expenditure was able to obtain important information, initially refused, after the Minister’s approval was obtained. No objection was raised to the committee’s subsequent publication of the evidence. The same committee was unsuccessful in certain other attempts to obtain information from the Government and brought this to the attention of the House in a report describing its first year of operation. The committee indicated that the Prime Minister had refused to provide it with two sets of documents, even on a confidential basis, on the ground that they were internal working documents. Attention was drawn to the fact that the documents would have helped the committee to determine which matters under investigation it should concentrate upon and in turn would have enabled it to use its limited resources to greater advantage. The committee urged Governments, if necessary, to find ways of minimising restrictions on information to be made available to committees, for example, by providing documents with offending material removed. This latter course has in fact been followed on occasions.
The subject of relations between committees and the Executive arose in 1992–3 in respect of a Senate select committee inquiry into the Australian Loan Council. This case is referred to at pages 939 and 942 in relation to evidence from State Members and Members of the House. In 1994, in relation to a Senate select committee inquiry concerning the print media, the Treasurer instructed officials not to give evidence or to provide certain documents to the committee.
The course mostly followed by committees in an attempt to circumvent the possibility of public interest immunity being claimed is to undertake to treat oral or documentary evidence as confidential. This confidentiality can create issues when the committee comes to drafting its report, for it runs the risk of publishing conclusions and recommendations which on the published evidence may appear unjustified. Apart from this, the public is prevented from drawing its own conclusions on the basis of all the material evidence.
Documentary evidence—additional considerations
Documentary evidence, by its very nature, raises issues which do not arise in the case of oral evidence. These separate issues are considered here.
Submissions and exhibits
The provision of written material to committees is a basic feature of modern practice. There is no fixed form or format for submissions, although it assists if they are in typewritten or printed form, and if an electronic version is also provided. A single page letter and a large elaborately presented document can each be accepted as a submission. Distinguishing features of a submission are that it is:
- prepared for the purposes of presentation to a committee;
- prepared solely for the purposes of the inquiry;
- relevant to the terms of reference of the inquiry;
- sent (‘submitted’) to the committee; and
- received by it.
There is no obligation on the author of a submission to address the full terms of reference of an inquiry. Comments or information may be provided on one or some aspects only. Submissions may be received electronically, but the submitter is encouraged to provide a contact postal address.
The protection of parliamentary privilege (for example, in conferring immunity from action for defamation) applies to the preparation of a document for the purposes of or incidental to the transacting of the business of a committee and the presentation or submission of a document to a committee. In addition, committees may authorise the publication of submissions, thus conferring privilege on their wider publication. In the absence of such motions submissions remain confidential and any wider publication would not be protected and may give rise to a matter of contempt. In addition, if a committee directs that a submission be treated as evidence taken in private (see page 700) the provisions of section 13 of the Parliamentary Privileges Act in respect of unauthorised publication are available.
In addition to the protection witnesses enjoy under the House’s penal jurisdiction, witnesses are protected by section 12 of the Parliamentary Privileges Act from penalty or injury on account of evidence given or to be given to a House or a committee. For the purposes of the Act the submission of a written statement by a person is, if so ordered, deemed to be the giving of evidence. Because of this, committees may choose at the first available opportunity to resolve to receive submissions they wish to receive. Committees may order that submissions or other documents be returned if they are not considered relevant.
Exhibits are items (most commonly documents) presented to committees or obtained by them during an inquiry—either by being sent in or by presentation during a hearing. While a submission is a document prepared solely for the purposes of an inquiry, an exhibit is not. An exhibit is a document or item created or existing for another purpose but presented to a committee or obtained by it because of its perceived relevance to an inquiry or to a matter under consideration. Typically, an exhibit would be a copy of a document or record—perhaps held by a person, organisation or department for other purposes but seen as relevant to the inquiry. Sometimes persons may seek to tender as exhibits copies of material published elsewhere. When such material is readily available, there is less point in receiving and retaining it as an exhibit. The act of presenting an exhibit to a committee would normally be protected by parliamentary privilege, although it would not be expected that committees would authorise the publication of exhibits, so any wider publication would not be protected. Sometimes committees have, however, authorised the publication of exhibits. Committees have sometimes received exhibits as confidential exhibits. A submission to another committee has been received as an exhibit—a course which may be seen as minimising the burden on the authors of the document.
Search for documents
It is considered that committees do not have the power to order a general search for documents—that is, for any documents which may be relevant to a particular inquiry. Greenwood and Ellicott suggested that it would be within the competence of the House ‘to authorise an officer to search for specified documents or classes of documents in a particular place and order that they be inspected or copied or brought before the House’. They considered the power to give such an order was conferred on a committee by reason of a power to send for documents. They conceded that this view was arguable and felt that it was a power which should only be used in exceptional circumstances. Even if this power is conferred in the way stated, the most appropriate course of action for a committee faced with a refusal by a witness to produce specified documents would be to acquaint the House of the refusal so that it may make a determination (as with oral evidence). It would be inappropriate for a committee to take direct action to search for a copy or take possession of documents without first informing the House and seeking a determination from it. May cites disobedience to or frustration of committee orders for the production of documents as an instance of contempt.
Withdrawal, alteration, destruction or return of documents
No submission received by the secretary of a committee may be withdrawn or altered without the knowledge and approval of the committee. A submission becomes the property of a committee as soon as it is received by the secretary or by a member of the committee itself. Normally, unless a committee did not wish to receive a submission (for example, on the grounds that it was not relevant to the committee’s inquiry—see below) the committee would resolve formally to receive written submissions as evidence at an early opportunity.
It is has been common practice for committee chairs to ask a witness at a hearing whether the witness wishes to amend his or her submission in any way. Witnesses may use this opportunity to draw attention to inaccuracies or omissions. A committee secretary may not change the substance of a submission at the request of the originator, or on the secretary’s own initiative, without the express approval of the committee. Where a committee decides to take oral evidence from a witness it is normal for the witness to be given the opportunity to supplement or amend a submission.
Committees may agree to return documents to witnesses. In 1977 the Standing Committee on Expenditure agreed to return voluminous confidential documents to a department which was concerned about their security. The documents were returned only after the department gave an undertaking that the committee would be granted ready access to them whenever it decided it needed to see them. The Standing Committee on Legal and Constitutional Affairs has resolved to return to a witness attachments to a submission which the witness wished to make use of in a court case. The submission itself was received as evidence.
It is a sound principle that the House, in considering a committee’s report, should have ready access to the evidence upon which the report was based. This would suggest the need for a committee to exercise the utmost caution in considering the destruction of evidence presented to it, even after the House has received the committee’s report.
A committee could resolve to return a submission or other document lodged with it if, for example, the submission was considered irrelevant to the committee’s inquiry or if it contained offensive or possibly scurrilous material. A rejected submission would cease to be the property of the committee and any further circulation of it would not attract privilege. In most circumstances it would be more appropriate for the committee to retain the document, not use it in its deliberations and not authorise its publication. By virtue of standing order 242(b), the fact that the document has not been published by the committee or, subsequently, by the House would preclude anyone from publishing the document as a submission to the committee without some risk in terms of the law of contempt of the House. Anyone who published a submission which had not been authorised for publication would not have the protection this would confer, and would therefore not be immune from any legal proceedings for such publication. Whether or not qualified privilege would apply would depend upon the circumstances (for example, publishers’ intentions). It is highly unlikely that the House would give its protection to a person who had ignored the desire of a committee that a defamatory document remain unpublished.
Sub judice convention
In the case of a matter awaiting or under adjudication in a court of law the House imposes a restriction upon itself to avoid setting itself up as an alternative forum to the courts and to ensure that its proceedings are not permitted to interfere with the course of justice. This restriction is known as the sub judice convention and is described more fully in the Chapter on ‘Control and conduct of debate’.
Committees are bound by the convention. The chair of a committee, like the Speaker, may exercise discretion as to whether the convention should apply in a given situation, but the chair must have regard to the principles followed by the Speaker in the House and to the option open to a committee to take evidence in private, an option which is not open to the House in any practical sense.
If a chair decides the sub judice convention should apply to evidence being given, he or she may direct that the line of questioning and evidence be discontinued or that the evidence be taken in private. A chair would normally wish to consult committee members on such a matter. It would also be open to any other member to initiate a resolution of the committee to order visitors to leave.
If the evidence is taken in private and it subsequently becomes clear that it does not warrant the application of the sub judice convention, the committee can authorise publication. Equally, a committee may publish such evidence once the possibility of its publication interfering with the course of justice has passed.
In 1975 a witness before a subcommittee of the Standing Committee on Environment and Conservation sought to give evidence relating to the circumstances of a legal action against him in the High Court. The evidence was taken in private. In the 37th Parliament the Standing Committee on Transport, Communications and Infrastructure conducted an inquiry into aviation safety. At the time of the inquiry a coronial inquest was taking place into one aircraft accident and a judicial inquiry was being conducted into another. Having regard to the sub judice convention, the committee agreed to a resolution that it should take no evidence on either matter unless the resolution was rescinded, and it completed the inquiry without changing this decision. In 2000 care was taken to try to ensure, by taking evidence in private, that a committee inquiry concerning military justice did not cause any interference with actions being taken within the Defence Forces.
Charges against Members
Unless another committee is so directed by the House, only the Committee of Privileges and Members’ Interests may inquire into, or make findings in respect of, the conduct of a Member of the House. If a committee other than the Committee of Privileges and Members’ Interests receives information or an allegation charging a Member, the committee must inform the Member concerned of the details of the charge and give the Member an opportunity to make a statement on the matter to the committee. Unless the committee considers the matter is without substance, it must report the matter to the House and may not proceed further on the information or allegation without being directed by the House to do so.
In 1975 a witness before the Joint Committee on Pecuniary Interests of Members of Parliament alleged that a Senator, who was a member of the committee, was ineligible under paragraph 44(v) of the Constitution to serve as a Senator. The committee resolved that, in accordance with standing orders, the Senate should be acquainted with the relevant evidence. The chair wrote to the President describing the information brought before the committee and enclosing a copy of the relevant transcript of evidence. The President reported to the Senate, read the committee chair’s letter and presented the letter and transcript of evidence. The Senator was given leave to make a statement in which the allegations were denied and it was indicated that the Senator had resigned from the committee as the nature of the allegations was such as to place in question the Senator’s objectivity in dealing with the issues before the committee. The Senate resolved to refer the matter to the High Court of Australia, in its jurisdiction as the Court of Disputed Returns, and to grant the Senator two months’ leave of absence. The Court upheld the Senator’s eligibility to serve as a Senator.
Swearing of witnesses
There are no provisions in the standing orders for the swearing of witnesses. Committees of the House which have the power to call for persons, documents and records have the power to administer an oath to witnesses. This power is derived from the United Kingdom House of Commons by virtue of section 49 of the Constitution and on the basis that the UK Parliamentary Witnesses Act 1871 empowered the House of Commons and its committees to administer oaths to witnesses and attaches to false evidence the penalties of perjury. There has been some doubt cast on whether joint committees have this power but some, such as the Joint Committee on Foreign Affairs, Defence and Trade, have sworn witnesses. According to May, a witness who refused to be sworn or to take some corresponding obligation to speak the truth could be dealt with by the House for contempt.
The practice of swearing witnesses has become less common in recent years. Committees may exercise their discretion as to whether they require a witness to take an oath. In some situations it may be regarded by a committee as unnecessary in view of the House’s power to punish a witness who gives false evidence even when not under oath. If witnesses are not sworn, the committee should formally warn that the deliberate misleading of the committee may be regarded as a contempt of the House.
A reluctant witness, especially one who has been summonsed, should probably be sworn to impress upon him or her the importance and solemnity of the occasion and to ensure that an obligation to tell the whole truth is understood.
A witness who does not wish to take an oath is given the opportunity to make a solemn affirmation. The oath or affirmation is administered to the witness by the committee secretary. The oath and affirmation used by committees of the House take the following form:
Secretary: Please take the Bible in your right hand. Do you swear that the evidence you shall give on this examination shall be the truth, the whole truth, and nothing but the truth. So help you God.
Witness: I do. So help me God.
Secretary: Do you solemnly and sincerely affirm and declare that the evidence you shall give on this examination shall be the truth, the whole truth, and nothing but the truth.
An oath need not necessarily be made on the authorised version of the Bible. Every witness taking an oath should take it in a manner which affects his or her conscience regardless of whether a holy book is used or not.
Offences by witnesses
Conduct by a witness which improperly interferes with the free exercise by a committee of its authority or functions may be found to constitute contempt of the House. Such an offence may be punished by the House and penalties can include fine and imprisonment. These matters are discussed in more detail in the Chapter on ‘Parliamentary privilege’.
Examples of contempt cited by May in relation to the conduct of witnesses include:
- interrupting or disrupting the proceedings of a committee;
- refusing to be sworn or to take some corresponding obligation to speak the truth;
- refusing to answer questions;
- refusing to produce evidence or destroying documents;
- giving false evidence;
- wilfully suppressing the truth;
- persistently misleading a committee;
- trifling with, or being insolent or insulting to a committee;
- appearing in a state of intoxication before a committee;
- removing any record or document from the Clerk’s custody or falsifying or improperly altering such records or documents;
- non-compliance with orders for attendance made by committees with the powers to send for persons;
- disobedience to committee orders for the production of documents;
- avoiding or assisting someone else to avoid being served with a summons.
If a witness who is summonsed fails or refuses to attend before a committee, or to give evidence before it, the committee may draw the circumstances to the attention of the House, which may deal with the matter as it sees fit. Other contempts are in practice dealt with in a similar way, using the procedures established for raising a matter of privilege in the House.
A committee’s report to the House on an alleged contempt must be made at the earliest opportunity if the matter is to be given precedence. The report, therefore, might be in the form of a statement to the House by the chair. Despite this requirement it is considered that a committee should seek to form some preliminary view on a matter, and that a matter should be identified in specific terms, before bringing it before the House, and unless the committee has done so the Speaker may direct it to consider the matter further. In order to inform itself on the matter a committee would take such steps as writing to the person or organisation suspected of offending or alleged to have offended, indicating the nature of the concern and seeking a response. By such means a committee can seek to have the essential allegations clarified so that it can make an informed decision as to whether to proceed with a complaint to the House.
Protection of witnesses
A straightforward protection which can be afforded a witness is that of taking evidence in private and treating documents in confidence—see ‘Limited publication’ at page 698; ‘Private or in camera hearings’ at page 700; ‘Documents treated in confidence’ at page 703; and ‘Expunging material from evidence’ at page 706.
Counsel or advisers
There is no provision in the standing orders nor any statutory provision for a witness before a committee of the House to be represented by counsel. Furthermore, there is no precedent for such representation before the House of Representatives or its committees. Applications by witnesses to be represented by counsel have been rejected, for example, by the Committee of Privileges and the Standing Committee on Environment and Conservation.
There are precedents, however, for House of Representatives committees to permit witnesses to have counsel or advisers present in an advisory capacity during hearings. On several occasions the Committee of Privileges has permitted witnesses to be accompanied by, and to confer with, counsel or advisers. Historically, save for seeking clarification on and making submissions concerning their own involvement, counsel have not been permitted to address the committee directly. However, procedures agreed by the Committee of Privileges and Members’ Interests in 2009 now provide for a more extensive role for such persons—see Chapter on ‘Parliamentary privilege’.
Persons permitted to accompany and assist witnesses need not be lawyers—for example, Members appearing before the Committee of Privileges have been accompanied by research assistants. On another occasion a Member appearing before the Committee of Privileges was accompanied by another Member. The role of such persons was emphatically that of adviser rather than representative. Witnesses have been permitted to converse freely with such advisers, but the advisers have not been permitted, for example, to:
- present evidence in support of a witness or the witness’s submission;
- object themselves to procedures or lines of questioning pursued by the committee; or
- ask questions of witnesses or committee members.
On one occasion a committee intervened to prevent what it saw as an attempt to avoid these restrictions by the passing of notes to a witness or providing the witness with written responses to questions. These limitations attempt to ensure that the witness answers the questions and presents his or her own evidence while at the same time allowing the witness to readily obtain, for example, advice or help as to legal or other issues arising in the giving of evidence. Counsel or advisers may be permitted, at the committee’s discretion, to attend a private hearing of a client’s evidence.
In 1970 the Joint Committee on the Australian Capital Territory permitted a firm of solicitors to prepare a submission on behalf of certain licensed grocers because there was no organisation then in existence which could adequately represent them and because of their limited command of English. The grocers alone were permitted to address the committee but were permitted, when necessary, to consult counsel.
In 1973 a representative of the Yirrkala people indicated to the Standing Committee on Aboriginal Affairs that they wished to be assisted in the preparation of their submission by a nominated barrister and solicitor, who had special ties with, and knowledge of, the Yirrkala people. The committee considered it essential to the success of its inquiry that the assistance be granted. The solicitor sought reimbursement for the cost of necessary air travel and accommodation and a daily fee, and the Speaker agreed to these costs being met. The solicitor was permitted to address the committee.
During the course of the 1983–84 inquiry of the Standing Committee on Aboriginal Affairs into the effect of asbestos mining on the Baryulgil community, former miners and residents of that community had their submissions to the committee prepared for them by the New South Wales Aboriginal Legal Service. Staff of that service also appeared before the committee.
In 1985, during the conduct of the Transport Safety Committee’s inquiry into passenger coach safety, a solicitor, whose firm had been given the responsibility for preparing and conducting a coach company’s case before the Arbitration Commission in a particular award matter, helped prepare that company’s submission to the committee. The solicitor was permitted to appear before the committee, together with representatives of the company, as a witness having specialist knowledge of the award provisions, their history and the implications for that company. Also in 1985 the House of Representatives Select Committee on Aircraft Noise received a submission which was prepared by a solicitor on behalf of a client.
The Procedure Committee has proposed the adoption of the following rule:
A witness may make application to be accompanied by counsel or an adviser or advisers and to consult counsel or the adviser(s) in the course of the meeting at which he or she appears. If such an application is not granted, the witness shall be notified of reasons for that decision. A witness accompanied by counsel or an adviser or advisers shall be given reasonable opportunity to consult with counsel or the adviser(s) during a meeting at which he or she appears.
In 2003 the Standing Committee on Legal and Constitutional Affairs allowed a witness’s solicitor to address the committee in his own capacity, but also as adviser to the witness, in view of the fact that the witness had limited English.
Special arrangements were made during the inquiries of two Senate select committees appointed in 1984 to inquire into matters concerning a judge. During the first inquiry witnesses were permitted to be accompanied by counsel and were given all reasonable opportunity to consult counsel during their appearance. Counsel were allowed to make statements to the committee in writing or orally, but were not able to cross-examine other witnesses. During the second inquiry more detailed rules were adopted. Amongst other things, counsel assisting and counsel for the judge were able to cross-examine witnesses (with certain qualifications) and counsel for other witnesses had a similar right, although the committee’s statement of rules and procedures included provision that it could stop any secondary cross-examination if it considered it repetitive or oppressive.
May describes UK House of Commons practice:
…a select committee may not hear counsel unless authorized by the House. However, by leave of the House, parties whose conduct forms the subject, or one of the subjects, of an investigation by a select committee, or whose rights and interests, as distinct from those of the general public, are directly affected by a public bill or other matter which has been referred to the consideration of such a committee, have sometimes been allowed to be heard in person or by counsel before the committee. The terms of such orders have given the committee leave to hear counsel to such extent as it shall see fit; or to hear parties by themselves, their counsel or agents.
Protection in legal proceedings
Standing order 256 states ‘Any witness giving evidence to the House or one of its committees is entitled to the protection of the House in relation to his or her evidence’. The protection available to witnesses however also has another source—it derives from Article 9 of the Bill of Rights (applying by virtue of section 49 of the Constitution and re-asserted by the Parliamentary Privileges Act) which declares that …‘proceedings in Parliament ought not to be impeached or questioned in any court …’. The term ‘proceedings in Parliament’ includes committee proceedings, and witnesses giving evidence to a committee are protected from legal proceedings on account of that evidence (for a more complete coverage see Chapter on ‘Parliamentary privilege’). However, it is important that a committee is properly constituted at the time of a hearing, to remove any possible concerns as to the protection of parliamentary privilege.
The protection afforded a witness in relation to oral evidence given before a committee also applies to documentary evidence that the witness may give. This protection is now conferred explicitly under the Parliamentary Privileges Act. The protection of parliamentary privilege applies as equally to the evidence of a voluntary witness as it does to the evidence of a witness summonsed by the committee. It is immaterial whether the evidence is given on oath or not.
The absolute privilege derived from the Bill of Rights and enhanced by the Parliamentary Privileges Act applies essentially to oral or written statements which form part of parliamentary proceedings, although some related actions may also be covered. The Parliamentary Papers Act provides absolute protection to the publisher of documents, including submissions and transcripts, whose publication is authorised by the House or its committees. While a statement made by a witness in the course of committee proceedings is absolutely privileged, the same statement repeated by that witness elsewhere is not. Similarly, the separate publication of a document presented to a committee is not absolutely privileged unless publication has been authorised by the House or the committee.
Protection from improper interference, arrest and molestation
Witnesses are protected from arrest (other than on criminal charges), molestation, tampering or other acts aimed at deterring them from giving evidence before a committee or punishing or penalising them for having given such evidence under the traditional power of the House to punish contempts. These matters are described in detail in the Chapter on ‘Parliamentary Privilege’.
Witnesses are also protected by the Parliamentary Privileges Act. Section 12 of the Act provides for substantial penalties to be imposed against persons or corporations:
- who by fraud, intimidation, force or threat, by the offer or promise of any inducement or benefit, or by other improper means, influence a person in respect of evidence given or to be given before a committee or who induce another person to refrain from giving evidence; or
- who inflict any penalty or injury upon, or who deprive of any benefit, a person on account of the giving or proposed giving of any evidence, or any evidence given or to be given, before a committee.
For the purposes of the Act the submission of a written statement is, if so ordered by the House or a committee, deemed to be the giving of evidence, and thus the protection of section 12 can be gained. Under section 14 of the Act, a person who is required to attend before a House or a committee on a particular day may not be required to attend before a court or a tribunal, or arrested or detained in a civil cause, on that day.
If a committee becomes aware of allegations that an offence or contempt may have been committed against a witness or a prospective witness, it should take all reasonable steps to ascertain the facts of the matter. This could include publishing details of the allegation to the person alleged to have offended, so that the person is able to respond.
The Standing Committee on Procedure has proposed the adoption of the following provision:
Where a committee has any reason to believe that any person has been improperly influenced in respect of evidence which has been or may be given before the committee, or has been subjected to or threatened with any penalty or injury in respect of any evidence given or in respect of prospective evidence, the committee shall take all reasonable steps to ascertain the facts of the matter. Where the committee considers that the facts disclose that a person may have been improperly influenced or subjected to or threatened with penalty or injury in respect of evidence which may be or has been given before the committee, the committee shall report the facts and its conclusions to the House.
The careful and proper application of procedural rules and discretions is significant in the protection of committee witnesses, as well as other persons—see immediately below, and also ‘Private or in camera hearings’ at page 700.
Protection of persons referred to in evidence
The Procedure Committee has recommended that the following provisions be adopted for the assistance or protection of persons referred to in evidence:
When a committee has reason to believe that evidence about to be given may reflect on a person, the committee shall give consideration to hearing that evidence in camera.
When a witness gives evidence which reflects upon a person, the committee may provide a reasonable opportunity for the person reflected upon to have access to that evidence and to respond to that evidence by written submission or appearance before the committee.
While these recommendations have not been formally adopted by the House, in practice committees do have regard to such considerations.
Protection of witnesses—joint committees
In 1988 the Senate adopted a detailed resolution to govern the way in which Senate committees deal with witnesses. Provisions included a requirement that witnesses be invited, in the first instance, to give evidence, that they be given an opportunity to make a submission in writing before appearing, that they be given a reasonable opportunity to raise matters of concern before appearing, that they be given a statement of the matters expected to be dealt with during the appearance, and that they be given the opportunity to apply to give evidence in camera, to object to questions and to apply to be accompanied by counsel. These rules are followed by joint committees.
Payment to witnesses
At the discretion of the committee, payments may be made to witnesses for reasonable travel and accommodation expenses.
Evidence as to proceedings
Only if the House grants permission, may an employee of the House, or other staff employed to record evidence before the House or one of its committees, give evidence relating to proceedings or give evidence relating to the examination of a witness.
In 1974 an inquiry was conducted by the Australian Broadcasting Control Board into allegations that certain television stations had suppressed television news coverage of a report presented by the Joint Committee on Prices. The Clerk of the House received a request for the clerk to the committee (i.e. committee secretary) to make a statement and, if necessary, to give evidence before the board of inquiry. In giving permission for the clerk to the committee to make a statement it was made clear that he could not give evidence in respect of any proceedings before the committee without the leave of the House, and that this restriction was imposed by the standing orders of both Houses. The clerk to the committee appeared before the inquiry and read a statement in which no reference was made to any proceedings of the committee and which contained only factual information as to when and to whom copies of the committee’s report had been distributed after it had been presented to the Senate and ordered to be printed.
Subsection 16(6) of the Parliamentary Privileges Act provides that neither the section nor the Bill of Rights prevents or restricts the admission in evidence and examination of proceedings in connection with the prosecution for an offence against an Act establishing a committee. Section 17 of the Act provides, inter alia, that a certificate signed by or on behalf of the Speaker or President, or a committee chair, in relation to committee records, evidence, etc. is evidence of the matters contained in the certificate. (And see Chapter on ‘Parliamentary Privilege’.)
Publication of evidence
Authorisation for publication of evidence
Standing order 242 provides for committees to authorise publication of evidence:
A committee or subcommittee may authorise publication of evidence given before it or documents presented to it. A committee’s or subcommittee’s evidence, documents, proceedings and reports may not be disclosed or published to a person (other than a member of the committee or parliamentary employee assigned to the committee) unless they have been:
- reported to the House; or
- authorised by the House, the committee or the subcommittee.
A committee may resolve to:
- publish press releases, discussion papers or other documents or preliminary findings; or
- divulge evidence, documents, proceedings or reports on a confidential basis to persons for comment.
A committee may resolve to authorise a member of the committee to give public briefings on matters related to an inquiry. An authorised member may not disclose evidence, documents proceedings or reports which have not been authorised for publication. The committee shall determine the limits of the authorisation.
The Parliamentary Papers Act, inter alia, empowers a committee of either or both Houses to authorise the publication of any document laid before it or of any evidence given before it. It also grants protection from civil or criminal proceedings to any person publishing any document or evidence published under an authority given pursuant to the provisions of the Act. Section 16 of the Parliamentary Privileges Act provides that the term ‘proceedings in Parliament’ includes ‘the formulation, making or publication of a document including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published’. This means that absolute privilege attaches to such actions and documents and, by virtue of section 3 of the Act, the reference to a committee includes a subcommittee. A practical difference between the two statutory provisions is that motions to authorise publication under the Parliamentary Papers Act can only be moved in respect of evidence which has been given or documents which have been presented to a committee (or a House). This limitation does not apply in respect of action under section 16 of the Parliamentary Privileges Act.
The Senate has ordered the publication of documents held by a committee but which the committee had decided not to publish.
Standing order 237 authorises committees to consider and make use of the evidence and records of similar committees appointed during previous Parliaments. Some committees have relied on this standing order to authorise a wider publication of such material than was authorised by the predecessor committee. See also ‘Access to old evidence and documents’ at page 704.
A committee may limit the publication of confidential documents or evidence to particular individuals. This approach may be adopted, for example, to enable individuals to respond to allegations made against them in a submission or at a private hearing by another witness.
Limited publication may also be used to enable the testing of conclusions or the vetting of draft reports by persons with expert knowledge. For example, the Standing Committee on Expenditure held private hearings towards the end of its inquiries to test its preliminary conclusions with relevant government departments. The hearings were held in private to avoid speculation about the committee’s recommendations. Departments were informed that the evidence would be published when the committee’s report had been presented. In May 2008 the Joint Committee of Public Accounts and Audit authorised the release, on a confidential basis, of its draft report of the inquiry into certain taxation matters to the Treasury ‘for factual and technical comment’ prior to adoption of the report by the committee.
In some cases committees have authorised the publication of submissions or other documents with certain information deleted. Names and addresses of persons may be suppressed, for example, to allow views or facts to be disclosed while still protecting privacy. It is now the usual practice for identifying details to be omitted from submissions from individuals published on committee web pages.
On occasion a submission may contain material that a committee considers should not have widespread dissemination protected by parliamentary privilege. For example, material may be regarded as offensive or relate to a matter that is sub judice. In such cases the committee may decide to authorise publication with certain material omitted. In 2010 the Joint Select Committee on Cyber-Safety suppressed footnotes in a submission which linked to ‘Refused Classification’ material and placed the following disclaimer on its website:
The Committee reserves the right to exercise its discretion not to publish any submission, or part of a submission, which in its view contains objectionable material, or material that is or purports to be Refused Classification or links directly to Refused Classification material.
(See also ‘Expunging of material from evidence’ at page 706.)
Committees have a responsibility to ensure that inaccurate media reports of their proceedings which may adversely affect witnesses, or the committee or its members, are corrected.
A notable instance occurred in 1972, when the Joint Committee on the Australian Capital Territory insisted that a newspaper correct an article in which it was alleged, inter alia, that an officer of the Department of the Interior had written the committee’s report. The newspaper published on its front page a correction, withdrawal and apology. It apologised unreservedly ‘for any reflection that may have been cast upon members and officers of the committee, the Department of the Interior, and officers of the department’. No further action was taken by the committee.
Section 10 of the Parliamentary Privileges Act provides that it is a defence to an action for defamation that the defamatory matter was published by a defendant without any adoption by the defendant of the substance of the matter and was contained in a fair and accurate report of proceedings at a meeting of a House or a committee.
Private or in camera hearings
The standing orders refer only to private hearings; these are the same thing as in camera hearings referred to in the Parliamentary Privileges Act and in former standing orders. Private or in camera hearing of evidence is explicitly provided for by standing order 235 as follows: ‘A committee or a subcommittee may conduct proceedings…by hearing witnesses, either in public or in private’.
Visitors, including committee members’ personal staff and other Members who are not members of the committee, must leave when a committee or subcommittee is conducting a private hearing.
Witnesses may request a private hearing but a committee will agree only for compelling reasons. Evidence which committees would normally take in private and not publish because of possibly adverse effects includes: evidence which might incriminate the witness, commercial-in-confidence matters, classified material, medical records and evidence which may bring advantage to a witness’s prospective adversary in litigation. In the last case the witness could be disadvantaged by having the details of a case made known to an adversary or by informing the adversary of the existence of certain evidence relevant to the witness’s case and even how the evidence might be obtained. Other reasons for private hearings could include evidence likely to involve serious allegations against third parties, a matter which is sub judice (see page 936) or a matter on which a Minister may otherwise claim public interest immunity (see page 928). When a witness makes an application for a private hearing, the committee decides the issue on the balance of the public interest and any disadvantage the witness, or a third party, may suffer through publication of the evidence.
The Procedure Committee has recommended that the following provisions be adopted in relation to the taking of in camera evidence:
A witness shall be offered, before giving evidence, the opportunity to make application, before or during the hearing of the witness’s evidence, for any or all of the witness’s evidence to be heard in camera, and shall be invited to give reasons for any such application. The witness may give reasons in camera. If the application is not granted, the witness shall be notified of reasons for that decision.
When a witness objects to answering any question put to him or her on any ground, including the grounds that it is not relevant, or that it may tend to incriminate him or her, he or she shall be invited to state the ground upon which he or she objects to answering the question. The committee may then consider, in camera, whether it will insist upon an answer to the question. The committee shall have regard to the relevance of the question to the committee’s inquiry and the importance to the inquiry of the information sought by the question. If the committee determines that it requires an answer to the question, the witness shall be informed of that determination, and of the reasons for it, and shall be required to answer the question in camera, unless the committee resolves that it is essential that it be answered in public. When a witness declines to answer a question to which a committee has required an answer, the committee may report the facts to the House.
When a committee has reason to believe that evidence about to be given may reflect on a person, the committee shall give consideration to hearing that evidence in camera.
Where a committee has wished to take evidence in public but wished also to protect the privacy of persons or their families, it has allowed witnesses to be identified as “Witness 1, etc”, although the secretariat has obtained the witnesses’ names. UK House of Commons committees have occasionally taken evidence from witnesses whose names are not divulged where it is thought that ‘private injury or vengeance might result from publication’.
Even though evidence is taken in private or documents received in confidence there can be no absolute guarantee that the evidence or documents will not at some future date be authorised for publication—see ‘Disclosure of private or in camera evidence’ below.
The Standing Committee on Aboriginal and Torres Strait Islander Affairs has on several occasions taken evidence in private which witnesses knew beforehand would be authorised for publication. This approach has been followed in order to make the process of giving evidence less stressful for the witnesses.
Disclosure of private or in camera evidence
It is an offence under the Parliamentary Privileges Act, as well as a contempt of the House, for any person to disclose or publish a document or evidence taken in camera without the authority of the House or a committee. The Parliamentary Privileges Act also provides that a court or tribunal may not require the production of, or admit into evidence, such documents or evidence. The Parliamentary Privileges Act, however, does not prevent disclosure during the course of proceedings in Parliament, and the House has the power, which is delegated to committees by standing order, to authorise the publication of any evidence given or any document presented even if it has initially been taken in private. The final authority in the publication of evidence given in private rests with the House itself. Although it is highly improbable that the House would insist on the publication of evidence received in a private hearing, a committee cannot give a witness an absolute guarantee that the witness’s evidence will not be published (but see paragraph (c) of the 1998 resolution noted below).
Witnesses granted permission to give their evidence in private should be warned that it is within the committee’s (or the House’s) discretion to publish the evidence subsequently, if it thinks fit. For obvious reasons a committee should authorise publication of private evidence only when there is a real and justifiable need or when subsequent events have removed the need for confidentiality, or when the evidence given does not warrant the confidential treatment which it was originally thought might be necessary. For example, having heard the evidence the committee might form the opinion that the arguments in favour of publication in the public interest carry more weight than the grounds of confidentiality claimed, or that a claim that the evidence is sub judice (see page 936) cannot be sustained. Committees, while not authorising publication of evidence generally, may in some cases need to authorise publication of the evidence to a person named in it, so that the person may be informed of statements made and given the opportunity to respond.
In the 34th and 35th Parliaments petitions were received from solicitors requesting leave to take possession of certain ‘confidential’ committee documents in order that they might be produced in court. In each case the House referred the matter to the appropriate committee to determine whether the documents should be presented to the House by the committee for the purpose of the House’s granting leave for a subpoena to be issued and served for the production of the documents in court. In the first case the committee recommended that the action proposed be taken and the documents were subsequently presented to the House, the subpoena was served and the House approved the documents being passed to the appropriate court. In the second case, while the matter for which the documents were originally required was settled out of court before the committee reported, the committee nevertheless advanced two propositions to the House, namely, that:
- there was a strong presumption that evidence taken in camera, or documents treated as confidential by parliamentary committees should not be released; and
- this presumption was related to the effectiveness in the working of parliamentary committees.
If a committee does want to publish evidence taken in private, it should inform the witness and consider any objections raised.
The Procedure Committee has recommended that the following provision be adopted in relation to the disclosure of in camera evidence:
Before giving any evidence in camera a witness shall be informed that it is within the power of the committee to publish or present to the House all or part of that evidence, and that the House has the authority to order the production and publication of undisclosed evidence. Should the committee decide to publish or present to the House all or part of the evidence taken in camera, the witness shall be advised in advance of the publication. A member, in a protest or dissent added to a report, shall not disclose evidence taken in camera unless so authorised by the committee.
Disclosure of in camera evidence in dissenting reports
In its 1989 report on procedures for dealing with witnesses, the Standing Committee on Procedure argued that in camera evidence should not be disclosed by members in dissenting reports, unless authorised by the committee. It proposed the inclusion of a provision to enforce this prohibition in resolutions to be adopted by the House to guide committees in dealings with witnesses (see above). Although it did not mention dissenting reports specifically, the 1998 resolution on the disclosure of in camera evidence (see below) was considered to apply.
Senate standing orders (observed by joint committees) have provisions which allow Senators to refer to in camera evidence or unpublished committee documents in a dissenting report, to the extent necessary to support the reasoning of the dissent, in cases when a committee has not reached agreement on the disclosure of the evidence or documents for that purpose.
Disclosure of in camera evidence after 30 years
Pursuant to a resolution of the House on the disclosure of evidence (see page 704), the Speaker has the authority to permit access to unpublished in camera evidence after 30 years, subject to certain conditions; the Speaker and the President of the Senate have similar authority in respect of joint committees.
Resolution on disclosure of in camera evidence
The Standing Committee on Procedure reviewed the question of the disclosure of in camera evidence in 1991 and concluded that a rigorous mechanism should be put in place to ensure that in camera evidence could only be disclosed in the most outstanding circumstances. The committee repeated this recommendation when it reviewed the committee system in 1998. As a result of the committee’s recommendations the House agreed to a resolution on the disclosure of in camera evidence on 3 December 1998. The resolution was introduced as a trial, effective initially for a year and later extended to the end of the session. The resolution was not renewed in later Parliaments.
The resolution applied the following conditions to the disclosure of evidence taken in private by a committee of the House:
- Committees may take evidence in the following manner:
- By written submissions, whether in hard copy or electronic form;
- By oral evidence taken in public; and
- In private session.
- A committee may, on its own initiative or at the request of, or on behalf of, a witness or organisation, hear evidence in private session. A witness shall be informed that it is within the power of the committee and the House to disclose all or part of the evidence subsequently. Publication of evidence would be the prerogative of the committee and it would only be disclosed if the majority of the committee so decided by resolution.
- Where a committee has agreed to take evidence in camera, and has given an undertaking to a witness that his or her evidence will not be disclosed, such evidence will not be disclosed by the committee or any other person, including the witness. With the written agreement of the witness, the committee may release such evidence in whole or in part.
- Where a Member of the House of Representatives discloses in camera evidence other than as prescribed, the House may impose a penalty on the Member following investigation and report of the matter by the Committee of Privileges.
- Evidence taken in camera which discloses a serious crime may, in respect to that part, be conveyed to the Speaker for appropriate action by the Chair, with the committee’s approval.
- No person not being an officer of the committee when the evidence was given will have access to evidence taken in camera, unless authorised by the full committee.
- If a motion is to be moved in the House to release evidence taken in camera by one of its committees, notice must be given. Such notice will not be placed on the Notice Paper without the approval of the Speaker, who must consult the Attorney-General, the Chair of the relevant committee, the Prime Minister and the Leader of the Opposition and report the outcome of that consultation to the House.
Documents treated in confidence
The principles applying to requests for hearing evidence in private apply equally to requests for non-publication of documents. Section 13 of the Parliamentary Privileges Act applies to documents prepared for the purpose of submission, and submitted, to a committee and directed to be treated as evidence taken in private.
A request by a witness that evidence given remain in confidence is often granted but on occasions a committee may consider that the public interest outweighs the private interest of the witness and choose not to accede to the request. In 1975 the Select Committee on Road Safety refused to accept documentary evidence from a witness on a confidential basis, insisting that it was in the public interest that the evidence be published. After protracted negotiations the evidence was provided and was published in the committee’s report.
Steps are taken to retrieve confidential documents from members of committees of previous Parliaments and from members of any committees which cease to exist, or requests are made that the documents be destroyed. Similar action is taken when a Member ceases to be a member of a committee or a Member of the House. After the House is dissolved former committee members are not given access to such documents, unless they have been authorised for publication.
An important case occurred in 1986 involving the production of records, including confidential material, of the Standing Committee on Aboriginal Affairs for use in court proceedings—see ‘Aboriginal Affairs Committee inquiry’ in Chapter on ‘Parliamentary Privilege’.
Access to old evidence and documents
Pursuant to a resolution of the House, the Speaker may permit any person to examine and copy evidence submitted to, or documents of, committees, which are in the custody of the House, which have not already been published by the House or its committees and which have been in the custody of the House for at least 10 years. However, if such evidence or documents were taken in camera or submitted on a confidential or restricted basis, disclosure shall not take place unless the evidence or documents have been in the custody of the House for at least 30 years, and, in the opinion of the Speaker, it is appropriate that such evidence or documents be disclosed. The Speaker must report to the House the nature of any evidence or documents made available under the resolution and the persons to whom they have been made available. Subject to the same conditions, the Speaker and the President of the Senate have been authorised to release records of joint committees. Any such release must be reported to both Houses. This procedure applies to documents which have not been made public.
In 2000 the House agreed to a resolution in relation to in camera evidence of the Privileges Committee, making specific provision for release after 30 years.
The time periods specified in the above resolutions do not prevent the House from authorising (by separate resolution) the publication of any document or evidence in its possession. In 2008 the House resolved to authorise the President of the HMAS Sydney II Commission of Inquiry to access, subject to certain conditions, exhibits held for less than 10 years and confidential submissions received by the Joint Standing Committee on Foreign Affairs, Defence and Trade during its 1999 inquiry into the loss of HMAS Sydney.
Unusual secrecy provisions
For considerations of national security unusual secrecy provisions were applied to the Joint Committee on Foreign Affairs when it was appointed in 1952. The committee’s resolution of appointment required that it sit in camera, that its proceedings be secret, and that it report only to the Minister for External Affairs. Whenever it reported to the Minister the committee was to inform the Parliament that it had reported. The Minister decided whether or not the reports should be tabled in the Parliament and printed. These restrictions were modified and ultimately removed from the resolutions of appointment of the committee’s successors in subsequent Parliaments. Because of these restrictions and other limitations imposed on the committee, the Opposition refused until 1967 to nominate members to the committee.
Schedule 1 of the Intelligence Services Act 2001 places restrictions on the disclosure to Parliament of certain matters. In a report to a House the Joint Committee on Intelligence and Security must not disclose the identity of a person who is or has been a staff member or an agent of certain intelligence agencies; or any information from which the identity of such a person could reasonably be inferred. In addition the committee must not, in a report to either House, disclose operationally sensitive information or information that would or might prejudice Australia’s national security or the conduct of Australia’s foreign relations; or the performance by an agency of its functions. The committee is required, before presenting a report to either House, to obtain advice of the responsible Minister or Ministers concerned as to whether the disclosure of any part of the report would or might disclose such a matter.
Unauthorised disclosure or publication of evidence
Subject to section 4 of the Parliamentary Privileges Act, it may be regarded as a contempt for any person, including the originator, to publish or disclose oral or documentary evidence received by a committee before the evidence has been reported to the House or its publication has been authorised by the committee or the House. The restriction on publication of a document, including a submission, applies once the document comes into the committee’s possession—that is, when it is received by the committee, or by the secretary of the committee. In addition, section 13 of the Parliamentary Privileges Act enables substantial penalties to be imposed for the publication or disclosure of documents directed by a committee to be treated as evidence taken in camera or oral evidence taken in camera or a report of such oral evidence.
Committees exercise discretion in dealing with breaches of these provisions, and it has not been common for cases of unauthorised publication of evidence to be reported to the House. However, committees have at times deemed it necessary to stress to those concerned the seriousness of their action. A complaint is more likely to be made if the disclosure is seen as particularly damaging or as indicating possible impropriety of some kind. For the processes followed in raising such a matter as a contempt see Chapter on ‘Parliamentary privilege’.
An instance of the discretion used by committees arose in 1975. A subcommittee of the Standing Committee on Environment and Conservation acceded to a request by two witnesses that their evidence be taken in camera because of their fears of physical harm from persons whom they wished to name in their evidence. One of the witnesses subsequently disclosed the transcript of evidence to a journalist who published parts of it. The other witness, who had not been consulted on disclosure of the evidence, informed the committee that publication of the evidence may have placed him in jeopardy. The Speaker was informed of the circumstances and advice was sought. The Australian Federal Police were asked to investigate the possible need for the witnesses to be given protection, but this was found to be unnecessary. The Speaker advised against the incident being raised as a matter of privilege because of concern that further publicity might lead to a greater risk of harm to the witnesses. The Speaker wrote to the witness who had disclosed the evidence and to the editor of the newspaper which had published it. The Speaker stressed the seriousness of the disclosure, indicated that under normal circumstances the incident may have been raised as a matter of privilege, and stated why no further action had been taken.
It is standard practice for an acknowledgment of receipt of a submission by the committee secretary to give advice to the effect that submissions should not be published or disclosed unless or until such time as the committee has authorised their publication. From time to time publication has preceded receipt of this warning.
If witnesses are examined in public, but publication of the evidence is not authorised, no objection is usually taken to the publication by the press of evidence taken at the hearing, provided the reports are fair and accurate. Because it is now standard practice for committees, at the end of each public hearing, to authorise publication of all evidence taken, except confidential documents, this qualification of the non-disclosure provisions now has less relevance. However, it should be noted that additional documents or submissions received during a hearing may not be authorised until later examined.
Expunging of material from evidence
Part or all of the evidence given by a witness, or questions or statements by committee members, has been expunged from the transcript of evidence and an order made that any such material expunged be disregarded by the press. Advice on this matter to the Joint Committee on Pecuniary Interests of Members of Parliament relied on the provisions of the standing orders of each House, subsection 2(2) of the Parliamentary Papers Act 1908, May and Odgers. Instances cited of evidence which might be expunged included unfair allegations, use of improper language and hearsay. The advice noted that in all cases the references were to the authority of the committee and not of the chair and therefore recommended that any direction that material be struck out and be disregarded by the press be by order of the committee.
In its report on procedures for dealing with witnesses in 1989, the Procedure Committee recognised the difficulties that could be encountered in respect of orders for material to be expunged if, for example, the act of publication occurred prior to or in ignorance of an order that it be expunged. It considered that it would be better practice for committees to consider the evidence being given and that, where it was felt that the evidence was of such a nature that immediate publication would not be appropriate, a committee should give consideration to taking further evidence in private.
Witnesses have sometimes requested that material be expunged from the evidence they have given after it has been published, or that the committee revoke its authorisation for publication. Since evidence has been published on the internet the practical difficulty of removing material in this way has considerably increased. Since the committee can have no knowledge of who may have accessed or made copies of the evidence, removing it from the web site may not be fully effective, especially if such a request is made several years after the original publication.
See also ‘Partial publication’ at page 699.
Frequency of reporting
The frequency with which a committee may report is determined by standing or sessional orders or its resolution of appointment. Standing committees are authorised to report from time to time—that is, as the need arises. Select committees have had various limits placed on their power to report but they are usually required to report by a specified date or as soon as possible, in which case they may submit only one report (whereupon they cease to exist).
A committee without the power to report from time to time may, however, seek leave of the House to submit an ‘interim’ or ‘special’ report. A special report is one in which a committee draws attention to matters incidental to its inquiry and which relates to its powers, functions or proceedings. For example, the Committee of Privileges has submitted special reports seeking an extension of its reference and recommending that the House ask the Senate to grant leave to named Senators to appear before it. In 1976 the Joint Committee on the Parliamentary Committee System presented a special report seeking an amendment to its powers to elect a chair and deputy chair. The Joint Committee of Public Accounts has reported on the issue of whether it was able to sit while the Senate was sitting, and in 1988 it reported on revised procedures for its reports.
Instead of presenting a single report on a wide-ranging inquiry, a committee, properly authorised, may submit one or more interim reports. Such reports may deal with the committee’s method of inquiry, or report progress on the inquiry as a whole and/or contain the committee’s recommendations on facets of the inquiry.
The Senate has referred matters to committees for report on a specified date, or not before a specified date. The Clerk of the Senate has advised that such a reference cannot negate the power explicitly conferred by Senate standing orders for committees to report when they choose to.
From time to time committees have reported to the House without a formal inquiry reference or without following the normal procedures of inviting submissions and conducting public hearings. Circumstances in which committees have decided to report without following the normal inquiry processes have included situations:
- when a need to report quickly had been identified;
- where a committee wished to comment on aspects of the Government’s response to previous reports;
- where the issues were felt to have little public interest;
- where costs and other resource limitations had prevented a full inquiry;
- where extensive published material, letters and other documents were available; and
- where a report naturally flowed from informal briefings, seminars, round-table discussions or inspections.
This procedure provides a cost and time-effective way for a committee’s views to be placed before the Parliament, but should be used with care, as the committee could leave itself open to criticism that some community, government or interest groups have been excluded from the process. In addition the committee runs the risk that its conclusions and recommendations could be based on incomplete or incorrect information.
Committees have also presented annual reports. The annual report of the Department of the House of Representatives also contains some information on committees serviced by the department.
Drafting and consideration of reports
Technically, it is the duty of the chair of a committee to prepare a draft report. In order to pave the way for the preparation of a report after evidence has been received and reviewed, it is normal for members to discuss possible conclusions and recommendations at deliberative meetings. This process is normally assisted by advice and documentation from committee staff. In light of such discussions secretariats are able to develop draft report material for consideration, in the first instance, by the chair. A member other than the chair may give a draft report to the committee. In this case the committee must first decide which report it will consider.
The procedures for consideration of a draft report are set down in standing order 244:
The Chair of a committee shall prepare a draft report and present it to the committee at a meeting convened for report consideration. The report may be considered at once if copies have been circulated in advance to each member of the committee. The report shall be considered paragraph by paragraph. When consideration of the chapters of the report is completed, the appendices shall be considered in order. After the draft report has been considered, the whole or any paragraph may be reconsidered and amended. A member objecting to any portion of the report may vote against it or move an amendment when the particular paragraph or appendix is under consideration. A member protesting about the report or dissenting from all or part of it may add a protest or dissenting report to the main report.
The committee may consider groups of paragraphs together, by leave. Amendments may be proposed by any member and are determined in the same way as amendments to a bill during the consideration in detail stage. The committee may divide on any question. When all paragraphs and appendixes have been agreed to, with or without amendment, the question is proposed ‘That the draft report (as amended) be adopted’. The date which appears under the chair’s signature in the report is the date on which the report was adopted.
The procedures for the drafting, consideration, adoption, presentation and correction of inquiry reports apply equally to all committee reports, including special and interim reports.
Protest or dissent
Committee members may add a protest or dissenting report to a committee’s report. The difference between a ‘protest’ and a ‘dissenting report’ has not been strictly defined. A distinction would be to associate a protest with procedural matters concerning the conduct of an inquiry, and dissent with opposition to a committee’s conclusions or recommendations—however, in practice the term ‘dissenting report’ is generally used. A protest (which is a rarely used form) or dissenting report is attached to the committee’s report, and signed by the dissenting or protesting members. Additions to reports expressing disagreement or reservation have also been described in other ways, for example, as ‘additional comments’, ‘clarifying statement’, or ‘minority report’.
A member who proposes to present a protest or dissenting report is not required to seek authorisation from the committee, as this power resides with individual members, not with the committee. Accordingly, the protest or dissenting report need not be shown by its author to the chair or other members of the committee, although not to do so would be regarded as a discourtesy. On 22 November 1995 the Senate passed a motion to the effect that prior to the printing of a committee report a member or a group of members is not required to disclose to the committee any minority or dissenting report, or any relevant conclusions and recommendations, proposed to be added or attached to the report after it had been agreed. This has not been considered to preclude action by a committee to direct the circulation of dissenting reports to committee members on their receipt by the secretariat. The chair’s foreword, which is not subject to approval by the committee, has contained a rebuttal of claims in a dissenting report.
A protest or dissenting report must be relevant to the committee’s reference, as the authority delegated to the committee and its members is limited to those areas defined by the terms of the inquiry. The words ‘protest’ and ‘dissent’ imply some relationship with the committee’s report.
Alternative methods of recording dissent are:
- moving amendments to the draft report, the voting on which is recorded in the minutes which are subsequently presented and thereby become public;
- submitting an alternative draft report to the committee (S.O. 245);
- making a statement in the House, by leave, when the report is presented; or
- stating the dissent or protest in debate on any motion moved in relation to the report.
(For earlier precedents see pages 612–3 of the second edition.)
In extreme circumstances members may record their dissent by resigning from the committee. In such instances members have no automatic right to explain their resignation in the House but could do so in a statement made by leave.
If a committee is unable to agree upon a report, it may present a special report to that effect, with its minutes and the transcript of evidence. Even if the circumstances of the committee’s inability to agree are widely known, the committee should still report the circumstances to the House, if only as a matter of form and to place them on record.
See also ‘Disclosure of in camera evidence in dissenting reports’ at page 968.
Presentation of reports
Periods are reserved on Mondays in the House and the Federation Chamber for private Members’ business and parliamentary committee and delegation business, which includes presentation of reports and statements relating to inquiries—special procedures applying to these periods are described in detail in the Chapter on ‘Non-government business’. Reports can also be presented at any time when other business is not before the House.
A copy of the report, signed by the chair, and the committee’s minutes of proceedings are presented to the House by the chair or a member of the committee. Copies of the submissions to the inquiry and the corrected copy of the transcript of evidence, other than confidential evidence, should also be presented. A supplementary CD has been presented with a report, and a video explaining a committee’s report has been presented. It is normal practice for the report, with or without the accompanying documents, to be made a Parliamentary Paper.
A Member presenting a committee report at times other than the period allocated on Monday may be granted leave to make a brief statement on the report and this may be followed by statements, by leave, from other Members. The Member presenting the report may then move a specific motion in relation to the report—that is, that the House take note of the report, or that the report be adopted or agreed to. Normally the ‘take note’ motion is moved. Debate on the motion is then adjourned to a future day. Debate can be resumed in the House or, after referral by the House, in the Federation Chamber.
Generally, any subsequent debate on a motion to take note of a committee report is adjourned and the order of the day remains listed as House or Federation Chamber business on the Notice Paper, thus enabling further debate. If not called on for eight consecutive sitting weeks the order of the day is automatically removed from the Notice Paper.
Two reports have been presented together, with the single motion moved to take note of each of the reports giving rise to two separate orders of the day (later debated together in a de facto cognate debate).
In 1955 the House ordered that the Clerk read to the House the special report of the Committee of Privileges relating to the Bankstown Observer Case.
See also ‘Authority for release when House not sitting’ at page 713.
A committee chair or other member on behalf of the committee may report to the House by way of an oral statement. To enable debate a motion to take note may be moved in respect of a presented copy of the statement. In the 43rd Parliament a statement by the chair, made by leave, was used as an effective way of discharging a committee’s requirement to provide an advisory report on a bill referred to it by the Selection Committee, in cases where the committee had found no issues requiring a formal report.
Presentation of reports and minutes—joint committees
The standing orders provide that the proceedings of a joint committee shall be reported to the House by one of the Members it has appointed to serve on the committee. The provision of the Senate standing orders is similar except that one of the Senators appointed to the committee is required to report. Reports by joint committees are dealt with in the same manner as the reports of House or Senate committees except that joint committee reports are directed to, and presented in, both Houses. Senate standing orders do not require the presentation of minutes of proceedings with a committee’s report.
Committees usually aim to present reports to both Houses on the same day but this is not always possible—for example, when only one House is sitting and there is an urgent need for the report to be presented and published. A motion that the report be made a Parliamentary Paper (or be printed) need only be moved in one House. Special arrangements are provided if the House is not sitting when a joint committee has completed a report of an inquiry—see page 713.
Amendment of presented reports
Minor amendments to presented copies of committee reports (for example, to correct typographical errors) may be made with the approval of the Clerk of the House. Amendments are initialled by the committee secretary. The committee chair, or even the whole committee, would have to approve more substantial, even if still relatively technical, amendments. In the case of amendments of substance a corrigendum or a further report would have to be presented. Leave is not required for these purposes. Alternatively, the chair could make a statement in the House.
Premature disclosure or publication
Standing order 242 provides that a committee’s or subcommittee’s evidence, documents, proceedings and reports may not be disclosed or published to a person (other than a member of the committee or parliamentary employee assigned to the committee) unless they have been reported to the House or their publication has been authorised by the House, the committee or the subcommittee. This is a blanket prohibition which precludes unauthorised disclosure of all or part of a report, or of its contents.
Until 1998 the rule was that such disclosure or publication had to be authorised by the House. The present rule allows authorisation to be given by a committee or subcommittee, and in addition, specifically permits committees to resolve to:
- publish press releases, discussion papers or other documents or preliminary findings;
- divulge evidence, documents, proceedings or reports on a confidential basis to persons for comment; or
- authorise a member of the committee to give public briefings on matters related to an inquiry. An authorised member may not disclose evidence, documents, proceedings or reports which have not been authorised for publication. The committee shall determine the limits of the authorisation.
In accordance with these provisions a number of committees have adopted the practice of releasing their reports, before presentation, to the media under embargo. This early release gives the media advance information about a committee’s recommendations and enables more effective questioning of the committee at press conferences held after presentation. The practice also encourages greater media coverage of committee reports. Release under embargo is authorised by resolution of the committee.
Contravention of the rule on premature disclosure may be found to be a contempt. However, committees have chosen, from time to time, to take no action on unauthorised press articles partially disclosing the contents of their reports or commenting on committee deliberations during the drafting of reports; it has sometimes been thought counter-productive to give further publicity and credence to such articles.
On rare occasions a committee has been authorised or directed to disclose its report to Ministers before its presentation to the House. The resolution of appointment of the Joint Committee on War Expenditure provided that:
The Committee have power, in cases where considerations of National Security preclude the publication of any recommendations and of the arguments on which they are based, or both, to address a memorandum to the Prime Minister for the consideration of the War Cabinet, but, on every occasion when the Committee exercises this power, the Committee shall report to the Parliament accordingly.
In 1952 the Joint Committee on Foreign Affairs was directed by its resolution of appointment to forward its reports to the Minister for External Affairs. On every occasion when it did so, the committee was required to inform the Parliament that it had reported. In later Parliaments the committee’s resolution of appointment added that, in the case of inquiries not initiated by the Minister, the committee was not authorised to report, either to the Minister or to the Parliament, without the Minister’s consent. It was further provided that, if opposition Members were represented on the committee, copies of its reports to the Minister were to be forwarded to the Leader of the Opposition for his confidential information. It was left to the Minister to decide whether or not the committee’s reports would be published. These arrangements were justified on the ground of national security.
The Intelligence Services Act 2001 provides that the Joint Committee on Intelligence and Security is not permitted to present a report until the advice of the responsible Minister or Ministers has been obtained as to whether the disclosure of any part of the report would or might disclose certain matters which the committee is not permitted to disclose.
Authority for release when House not sitting
Special arrangements are required for times when the House is not sitting and a committee has completed a report of an inquiry. The committee may send the report to the Speaker, or to the Deputy Speaker if the Speaker is unavailable. When the Speaker or the Deputy Speaker receives the report, the report may be published; and he or she may give directions for the printing and circulation of the report. The committee must then present the report to the House as soon as possible. This procedure would normally be used only during a lengthy break when the House is not due to sit for some time, or in cases where the committee has a reporting deadline which falls on a non-sitting day. It has also been used for reports sent to the Speaker before dissolution, but not able to be presented until the new Parliament had met. These provisions also apply to joint committees.
Government responses to reports
The Government is obliged by resolution of the House to present its response to recommendations contained in a report by a House or Joint Committee within six months of the report’s presentation. If a response has not been presented within this period, the relevant Minister (or Minister representing the Minister) must present a signed statement stating the reasons for the delay, and must make him or herself available to the committee concerned to be questioned about the statement. If an explanatory statement has not been presented, and if questions on the statement have not been answered to the satisfaction of the committee, the committee may bring the matter to the attention, if appropriate, of the Auditor-General for assistance in resolving matters referred to in the report or to the Speaker for assistance in resolving the response process.
There are government guidelines for departments and agencies on the procedures to follow in relation to the approval and presentation of responses. These procedures do not apply to reports by the Parliamentary Standing Committee on Public Works and the Joint Committee of Public Accounts and Audit, and to advisory reports on proposed legislation. Government responses are made to reports by the Joint Committee on Publications resulting from inquiries, and reports by the Procedure Committee, but not to reports by other committees concerned with ‘internal’ matters. If appropriate, the Speaker may also respond to a committee report, and both Presiding Officers may respond to reports by joint committees which relate to their shared responsibilities.
Speakers have followed the practice of presenting to the House at approximately six-monthly intervals a schedule listing government responses to House of Representatives and joint committee reports as well as responses outstanding. Subsequently the Leader of the House presents a list of parliamentary committee reports showing the stage reached with the government response in each case. This list does not constitute the formal response, nor does correspondence from a Minister directly to a committee chair. The Government’s response to a committee report is considered to have been formally made only when presented directly to the House(s).