Powers of committees
Source of power
Section 49 of the Constitution confers on both Houses the powers, privileges and immunities possessed by the United Kingdom House of Commons in 1901. Section 50 confers on each House the right to make rules or orders concerning its powers and conduct of business. This power extends to committees and is delegated to a committee by the standing orders, by the resolution of appointment, or by the relevant statute.
A committee possesses no authority except that which it derives by delegation from the House or Houses appointing it, or which has been specifically bestowed by legislation in the case of statutory committees. The power of a House or joint committee is determined by the power possessed by the House or Houses and the degree to which this has been delegated.
‘Powers’ explicitly granted to a committee by the standing orders are:
to appoint subcommittees (S.O. 234);
to conduct proceedings using approved means (S.O. 235(a));
to conduct proceedings at any time or place as it sees fit, and whether or not the House is sitting (S.O. 235(c));
to call witnesses and require that documents be produced (S.O. 236);
to consider and make use of the evidence and records of similar committees appointed during previous Parliaments (S.O. 237);
to confer with a similar committee of the Senate (S.O. 238);
to authorise publication of any evidence given before it or documents presented to it (S.O. 242); and
to report from time to time (S.O. 243).
While the use of the word ‘power’ is traditional, most of these matters can be regarded as authorisations. The real power possessed by a committee, as the word is more usually understood, is the power to order the attendance of witnesses and the production of documents.
These powers and authorisations apply to all committees of the House, except as provided in another standing or sessional order, or as otherwise ordered by the House. Similar powers are also generally included in resolutions establishing joint committees.
A committee’s powers should not be taken for granted. To determine the extent of the authority delegated to any committee, recourse must be had to the standing and sessional orders, and if applicable, to a committee’s resolution of appointment and any later amendments, and any other orders agreed to by the House subsequent to the committee’s appointment.
In the case of a statutory committee, the constituting Act must be consulted. In some cases the Act makes provisions for terms of reference, powers and procedures. This is the case in respect of the Joint Committee on Public Works, the Joint Committee of Public Accounts and Audit, and the Joint Committee on Intelligence and Security. In some other cases, such as the Joint Committees on Corporations and Financial Services, Law Enforcement, and Law Enforcement Integrity, it is provided that matters relating to the powers and proceedings of the committee shall be determined by resolution of both Houses of the Parliament. This approach may be seen as avoiding some of the practical and theoretical difficulties that could be associated with complex and detailed statutory provision for committees.
Derivation and extent of investigatory powers
Some doubts have been expressed as to the precise extent of the investigatory powers which the Houses may exercise or delegate to committees. By virtue of section 49 of the Constitution the powers of the House and of committees to which it delegates these powers are those of the United Kingdom House of Commons at 1901. Based on this there could be a claim of extremely wide powers. In 1845 Lord Coleridge said that as the ‘general inquisitors of the realm’ the Commons could inquire into anything it wanted to. A corollary of this was the authority to compel the attendance of witnesses. The Commons exercised these powers in aid of both its legislative responsibilities and of its responsibility as the ‘Grand Inquest of the Nation’. There was no limit to the subject matters on which the Commons could legislate and as the ‘Grand Inquest of the Nation’ it considered itself entitled to advise or remonstrate with the Crown on all affairs of State and in regard to any grievance of the monarch’s subjects. Thus, there was no practical limit to the subject matters into which the House of Commons could inquire at 1901.
In R. v. Richards: ex parte Fitzpatrick and Browne the High Court held in unequivocal terms that section 49 is incapable of a restricted meaning and that the House of Representatives, until such time as it declares otherwise, enjoys the full powers, privileges and immunities of the United Kingdom House of Commons. If such is the case, either House of the Commonwealth Parliament, or its committees, could be said to have the power to conduct any inquiry into any matter in the public interest and to exercise, if necessary, compulsive powers to obtain evidence in any such inquiry.
On the other hand, there is the view that the compulsive investigatory powers which the House may delegate to its committees is limited to matters on which the Parliament may legislate. This view was argued on the basis of a judgment by the Judicial Committee of the Privy Council in 1914. It was held that the Commonwealth Parliament could not legislate to grant a royal commission, appointed by the Commonwealth Government, power to compel witnesses to attend and give evidence before it unless the royal commission’s terms of reference were limited to matters on which the Parliament could legislate. It has been suggested that neither House could achieve by resolution that which it could not achieve by statute and that consequently the limitations on the granting of compulsive powers to royal commissions must apply equally to the delegation of such powers to parliamentary committees. However, there must be some doubt as to whether a court would find the so-called Royal Commissions Case relevant to the question of the powers of parliamentary committees, as that case was concerned with a different form of inquiring body and the exercise of a different head of constitutional power.
Attorney-General Greenwood and Solicitor-General Ellicott did not accept that the House has unlimited power of inquiry:
Although, for the time being, s. 49 of the Constitution has conferred on each House the powers of the Commons as at 1901, it does not, in our view, enlarge the functions which either House can exercise. In considering the effect of s. 49, it is important to bear in mind that there is a distinction between ‘powers’ and ‘functions’. The section, as we construe it, is intended to enable the Commonwealth Parliament to declare what the powers, privileges and immunities of its Houses and their members and committees shall be for the purpose of enabling them to discharge the functions committed to them under the Constitution. What the Commons did as ‘the Grand Inquest’ was not done in aid of its legislative function but represented the exercise of an independent and separate function said to be as important as that which it exercised as part of the legislature. However, it would not, in our view, be proper to construe s. 49 as conferring such an important and independent function on the Australian Houses of Parliament. Not only is it unlikely that such a function would be left to implication and then only until Parliament provided otherwise but the exercise of such a function by the House of Representatives or the Senate would in some respects be inconsistent with the Constitution. For instance, the notion that either House could impeach a person for trial before the other is inconsistent with the notion that judicial power is to be exercised by the Courts as provided in Chapter III. Again, the Commons could as the Grand Inquest inquire into any matter or grievance. It would surely be inconsistent with the federal nature of our Constitution that a House of the Commonwealth Parliament could inquire into a grievance which a citizen had in relation to the execution of a law wholly within State competence.
It is our view, therefore, that neither of the Houses of the Commonwealth Parliament has been vested with the function which the Commons exercised as the Grand Inquest of the Nation. This view was also expressed by Forster J. in Attorney-General v. Macfarlane & Ors.
Nevertheless, the law officers differentiated between the virtually unlimited power of inquiry and the legal limitations of the inquiry power, which would arise only when it was sought to enforce that power, for example, by compelling persons to attend a parliamentary committee. A similar view was taken by Fullagar J. in Lockwood v. The Commonwealth.
Even though Greenwood and Ellicott stated that there are legal limits to the facts and matters into which the Houses can, by compulsion, conduct an inquiry, for practical purposes they also noted that these limits are extremely wide, as a consideration of the various heads of Commonwealth legislative power will quickly reveal. They added that each House:
… is entitled to investigate executive action for the purpose of determining whether to advise, censure or withdraw confidence. It would indeed be odd if a House could not inquire into the administration of a department of State by a Minister in order to judge his competence before determining whether to advise him, censure him or withdraw its confidence in him. Each House of the Commonwealth Parliament can, therefore, in our view, as a necessary consequence of the existence of responsible government, exercise investigatory powers through committees in order to exercise what might broadly be called an advisory function.
A recognised authority on constitutional law, Professor Geoffrey Lindell, has observed that, even if the power to establish parliamentary committees is federally limited, two factors would lessen the practical significance of such a limitation: the limitation may not come into play unless a committee was armed with powers to compel the attendance of witnesses and the production of documents, and the difficulty of establishing that a matter may never be relevant to the Commonwealth’s legislative powers.
It may be a very long time before the courts make any authoritative judgment on the limits on the Houses in these matters. First, committees rarely use their compulsive powers but rather rely on voluntary assistance and cooperation. Secondly, political realities, conventions and courtesies arising from the federal framework of the Constitution are likely to continue to inhibit the House and its committees from pressing hard for information on matters wholly, or even largely, within the constitutional jurisdiction of the States (see ‘Evidence from State public servants and State Members’ in the Chapter on ‘Committee inquiries’). Thirdly, the courts have been reluctant to intervene in the affairs of the Parliament, particularly with respect to parliamentary privilege and the Houses’ powers to investigate and deal with alleged contempt, which underpin the Houses’ powers to compel the giving of evidence. (However, punitive action under the Parliamentary Privileges Act 1987 may involve a court of competent jurisdiction.)
Delegation of investigatory powers
Without authority from the House a committee has no power to compel witnesses to give oral or documentary evidence. The power to call witnesses and require that documents be produced is now given to all House committees by standing order 236, but may be limited by another standing order (as in the case of the Committee of Privileges and Members’ Interests) or by resolution.
Special provisions have sometimes been made. When first appointing the Joint Committee on Foreign Affairs in 1952, the Houses imposed an unusual qualification on the committee’s power to send for persons, papers and records in the resolution:
… the Committee shall have no power to send for persons, papers or records without the concurrence of the Minister for External Affairs and all evidence submitted to the Committee shall be regarded as confidential to the Committee …
The Committee of Privileges and Members’ Interests has power to call for witnesses and documents, but when considering a matter concerning the registration or declaration of Members’ interests it must not exercise that power, or undertake an investigation of a person’s private interests, unless the action is approved by not less than six members of the committee other than the chair. The Parliamentary Joint Committee on Intelligence and Security has, by virtue of the Act establishing the committee, some limitations in respect of the gathering and use of evidence.
A committee would have no authority to consider or use the evidence and records of a similar committee appointed in previous Parliaments or sessions without specific authority in a constituting Act or granted by the House. Standing authority in relation to House committees is now granted by standing order 237, but previously was granted to committees on an individual basis by the sessional or standing orders or resolution of appointment.
A committee may only exercise compulsive powers in relation to the matters which the House has delegated to the committee to investigate by way of its terms of reference.
Powers of joint committees
Doubts have been expressed as to whether joint committees are invested with the same powers, privileges and immunities as the committees of the individual Houses. These doubts have been expressed because section 49 of the Constitution invests the two Houses and the committees of each House with the powers, privileges and immunities of the United Kingdom House of Commons and its committees at the time of Federation. No express mention is made of joint committees. If joint committees were not covered by section 49, the implications could have far-reaching and significant effects for those without relevant statutory provisions. However, it is relevant that section 3 of the Parliamentary Privileges Act 1987 provides that, in the Act, ‘committee’ means a committee of a House or of both Houses (and subcommittees).
In response to a request by the Joint Committee on War Expenditure in 1941, the Solicitor-General advised that in his opinion absolute privilege attached to evidence given before a joint committee just as it did to evidence given before a select committee of one House. He also gave the opinion that a joint committee authorised to send for persons, papers and records had power to summon witnesses. He suggested that it was doubtful, however, whether a joint committee had the power to administer oaths to witnesses.
Statutory secrecy provisions
A number of provisions in Commonwealth Acts prohibit the disclosure of certain information and create criminal offences for disclosure in contravention of the provisions. Examples are to be found in the Income Tax Assessment Act and the Family Law Act. The application of such provisions could become an issue in respect of either House directly, but is more likely to arise in respect of committee inquiries, and did so in 1990 and 1991. Different views were expressed as to whether such provisions prevented the provision of such information to a committee, but in August 1991 the Solicitor-General advised as follows:
Although express words are not required, a sufficiently clear intention that the provision is a declaration under section 49 must be discernible. Accordingly, a general and almost unqualified prohibition on disclosure is, in my view, insufficient to embrace disclosure to Committees. The nature of section 49 requires something more specific.
(The advice went on to state that certain provisions in the National Crime Authority Act which limited activities of the Joint Committee on the National Crime Authority were sufficient to fetter the otherwise wide powers of the committee.)
It is also to be noted that should information prohibited from disclosure under a general secrecy provision be disclosed in a submission received by a committee or in oral evidence to a committee, the law of parliamentary privilege would effectively block prosecution because the disclosure would have occurred as part of ‘proceedings in Parliament’.