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 722.
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 personal details such as addresses 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 724.)
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 714) 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 House has adopted the following provision in relation to the disclosure of in camera evidence:
Before giving any evidence in camera a witness shall be informed whether it is the intention of the committee to publish or present to the House all or part of that evidence, that it is within the power of the committee to do so, 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. 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 accordance with the resolution of the House cited above, a member, in a protest or dissent added to a report, shall not disclose evidence taken in camera unless so authorised by the committee.
The 1998 resolution on the disclosure of in camera evidence (see below) was considered to apply to dissenting reports, although it did not mention them specifically.
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 722), 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 Paperwithout 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.
In practice, it is rare for committees to publish confidential evidence against the objections of a witness where the evidence has been taken in-confidence. If a committee is considering this course of action it would need to comply with the following provision:
Before giving any evidence in camera a witness shall be informed whether it is the intention of the committee to publish or present to the House all or part of that evidence, that it is within the power of the committee to do so, 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.
The committee in complying with this procedure should advise the witness if it intends to publish undisclosed evidence. The witness may then provide additional reasons why the evidence should not be disclosed and the committee may consider these views before proceeding. The committee would consider whether the public interest outweighs the witness’s claims of confidentiality. In negotiating the publication of evidence, the committee could agree with the witness to publish extracts of the evidence with sensitive material removed. If a committee were to demonstrate a pattern of publishing undisclosed evidence against the advice of witnesses, it could run the risk in future inquiries of witnesses being reluctant to give evidence in camera or to provide confidential submissions.
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.
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 718.