Protection of witnesses
Resolution on procedures for dealing with witnesses.
On 13 November 2013 the House adopted a resolution setting out procedures to be observed by committees of the House in their dealings with witnesses. The resolution was in very similar terms to a draft resolution originally proposed by the Procedure Committee in its 1989 report Procedures for dealing with witnesses. Although not formally adopted, the draft resolution had served as a de facto guide to committee practice in the intervening years. Excerpts from the 2013 resolution are quoted under the relevant headings below.
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 717; ‘Private or in camera hearings’ at page 697; ‘Documents treated in confidence’ at page 721; and ‘Expunging material from evidence’ at page 724, and ‘Televising, filming and recording of proceedings’ at page 693.
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.
Over the years, however, there have been precedents for House of Representatives committees permitting witnesses to have counsel or advisers present in an advisory capacity during hearings, and the House has more recently formally adopted 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.
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.
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.
Witnesses may also be protected by the Act establishing a statutory committee.
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 House has adopted 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 697.
Protection of persons referred to in evidence
The House has adopted the following provisions for the assistance or protection of persons referred to in evidence:
Where 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 evidence is given 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.
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 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 1992–93 in respect of a Senate select committee inquiry into the Australian Loan Council. This case is referred to at pages 702 and 704 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.
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. In 2013 an inquiry by the Committee of Privileges and Members’ Interests was suspended because of sub judice considerations after a Member had been charged with criminal offences.
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.
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.