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.
Use of internet
The use committees make of the internet is evolving. In recent years some committees have used social media and online forums to publicise inquiries and to obtain information. Online questionnaires have also been used. Most committee hearings are audio webcast live and video footage of some hearings is available live or as video on demand.
The general practice of publication of submissions on the internet has caused committees to be aware of, and to adapt to, privacy and other considerations which were of less concern when publication, while authorised, was in practice restricted by the constraints of earlier technology. Some practices have been adjusted—for example, addresses and contact details of private citizens making submissions may be omitted.
Submissions and exhibits
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 and not previously published elsewhere;
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 or in hard copy, but in either case the submitter is required to provide their full name and sufficient information to enable the committee to make contact if necessary (for example, email or 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 697) 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 accept submissions they wish to receive.
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 document presented to a committee as a proposed submission, but which was substantially a reproduction of a document previously published by the witness, has been received as an exhibit. 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.
See also discussion of return of submissions and documents below.
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. For example, it would be impractical for a committee to write to a witness requesting all documents relating to an inquiry. A committee would need to provide a certain level of precision relating to its request. At the same time, a committee would not be expected to know document reference numbers or dates on which a document was created. In 2016 the House Economics Committee, as part of its review of the four major banks, exercised its power to call for documents. During public hearings the committee focused on certain topics within the context of the inquiry and called for certain documents such as board minutes relating to these issues. There was a certain level of precision with the requests and the banks complied by providing the committee with documents.
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.
It 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 have also accepted revised submissions in place of versions received and published earlier.
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.