Legal Practice Briefing
21 December 1996
APPEARING BEFORE PARLIAMENTARY COMMITTEES
This briefing outlines issues relating to the following matters:
- The establishment of parliamentary committees and the sources of their powers.
- Appearing before parliamentary committees.
- The powers which parliamentary committees have to require the production of information to them.
- The circumstances in which disclosure of information or documents to a committee may not be appropriate.
- The consequences of failing to comply with a Committee's directions.
- Some practical points to remember when appearing before parliamentary committees.
Establishing Parliamentary Committees
The Power to Establish a CommitteeThe precise scope of the inquisitorial powers of each House of Parliament has not, to date, been authoritatively defined. However, it is well established that each House can establish a committee for the purpose of inquiring into any matter necessary to enable Parliament to carry out its legislative function or any matter which is capable of being the subject of valid federal legislation.1
How Committees are Established
Committees are generally established in one of the following ways.
Each House may establish a committee of that House by passing an appropriate motion. Additionally, the Standing Orders of each House provide for the appointment, at the commencement of each Parliament, of a number of standing committees. For example, order 25 of the Senate Standing Orders provides for the appointment of a number of Legislative and General Purpose Standing Committees to deal with a broad range of subject matters.
Joint committees, that is, committees consisting of members of both Houses, may be established by an appropriate motion of each House. However, joint committees are more commonly established by an Act of Parliament. For example, the Joint Committee of Public Accounts is established by the Public Accounts Committee Act 1951 and the Parliamentary Standing Committee on Public Works is established by the Public Works Committee Act 1969.2 In the remainder of this briefing, committees established by an Act of Parliament are called 'statutory committees' so as to distinguish them from committees created by a House or Houses of Parliament.
Sources of a Committee's Powers
The source from which a committee derives its powers will depend on the way in which that committee is established.
A statutory committee generally derives its powers from the legislation which establishes it.
Committees other than statutory committees derive their powers from section 49 of the Constitution. Section 49 provides:
'49.The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.'
The Parliament has, by enacting the Parliamentary Privileges Act 1987, made a partial 'declaration' of the powers, privileges and immunities of each House and its committees and members as provided for in the first part of section 49. Except to the extent provided for by the Parliamentary Privileges Act, or by any other provisions of an Act which can be construed as a 'declaration' for the purposes of section 49 of the Constitution, the powers, privileges and immunities derived from the House of Commons continue in force.3
Therefore, it remains necessary to ascertain the powers, privileges and immunities of the House of Commons, its committees and its members at 1 January 1901. These are determined by a branch of the common law known as 'the law and custom of parliament'. This is ascertained from reported decisions of the courts and also from texts such as Erskine May's A Treatise on the Law, Privileges and Usage of Parliament.. In most cases, however, it is now possible to determine the powers, privileges and immunities of the House of Representatives and the Senate by reference to relevant modern Australian texts such as Odgers' Australian Senate Practice and House of Representatives Practice.
Appearing Before a Committee
Preparing for Attendance
There are two documents with which any government officer called to appear before a committee should be familiar. They are the Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters (last issued in November 1989) and the Resolutions agreed to by the Senate on 25February 1988 relating to Parliamentary Privilege. The Guidelines provide practical and useful instruction to government officers on the procedure to be adopted when requested to assist a committee and, in particular, delineate the matters which are appropriately dealt with by officers and those which are more appropriately dealt with by a Minister. The Resolutions cover a broad range of privilege issues. The first of the Resolutions is particularly relevant to officers called to appear before a committee as it is concerned with the procedures to be followed by Senate Committees in relation to witnesses.
A Committee's Power to Require Attendance
As a general rule, a parliamentary committee is conferred with the power to require persons to attend before it.
In the case of a statutory committee, the legislation establishing the committee usually confers a power to summon witnesses.4 For example, subsection 21(1) of the Public Works Committee Act 1969 provides:
'The Chairman or a member authorized by the Committee by resolution may summon a person to appear before the Committee to give evidence and to produce such documents (if any) as are referred to in the summons.'
In the case of any other committee established by a House or by both Houses, section 49 of the Constitution empowers the Houses to confer on the committee a power to summon persons. It is clear that the House of Commons in 1901 had the power to summon persons and could give that power to its committees. Accordingly, each House of Parliament may confer a committee with the power to summon persons. The power to summon a witness is usually conferred either by a relevant motion of a House or by the Standing Orders of a House. For example, order 25(15) of the Senate Standing Orders provides that Legislative and General Purpose standing committees 'shall have power to send for persons and documents'. In relation to Senate Select Committees, order 34(1) provides that the 'Senate may give a committee power to send for persons and documents, and a committee with that power may summon witnesses and require the production of documents'.
Immunities of Witnesses Appearing Before a Committee
The Parliamentary Privileges Act 1987 now puts it beyond doubt that both the giving of evidence before a committee and the submission of documents to a committee (even if outside the formal hearing for the reception of evidence) form part of the 'proceedings in Parliament'.5 This means, in effect, that the giving of evidence before, and the submission of documents to, a committee are absolutely privileged.
The effect of absolute privilege is that a witness cannot be made the subject of any sanction for giving evidence before, or submitting documents to a committee, apart from any penalty for the offence of giving false or misleading evidence to that committee. Any attempt to do so is both a contempt of Parliament liable to punishment by the relevant House and also a criminal offence punishable by a court. Also subsection 16(3) of the Parliamentary Privileges Act 1987 makes it clear that, for example, a witness's evidence to a committee cannot be used as a basis for an attack on his or her credit in court or other proceedings.
It should be noted, however, that the actions of a committee contrary to the Standing Orders of the relevant House or otherwise without authority of that House probably are not 'proceedings in Parliament' as they could not relate properly to the 'business' of the House or the committee for the purposes of subsection 16(2) of the Parliamentary Privileges Act 1987.
Also it seems that, in general, correspondence to individual members of Parliament does not form part of 'proceedings in Parliament'.
Accordingly, evidence given to a committee acting without the authority of the relevant House, and correspondence with individual members of Parliament, probably do not attract absolute privilege. Care will need to be taken when disclosing information in those circumstances. For example, an officer should be careful not to disclose defamatory or self-incriminating information in the absence of absolute privilege.
Powers of Committees to Require Information
In addition to the power to require persons to attend before it, a committee is generally conferred with the power to order the production of information and documents to it. As with the power to summon persons, this power is derived:
- in the case of a statutory committee from the legislation creating the committee;6 and
- in the case of committees other than statutory committees from a House of Parliament exercising the powers it has under section 49 of the Constitution.
The power which a committee has to require production of information and documents is usually very broad. However, there may be circumstances in which it is not appropriate to disclose information or documents to a committee and where the committee will agree not to seek the information or documents.
Claims of Public Interest Immunity
This will most commonly be the case where the executive government considers that the public interest in information or documents remaining confidential outweighs the public interest in the information or documents being made public through disclosure to a committee. In those cases, the government may resist disclosure of the information or documents on the basis that they are subject to 'public interest immunity'. The procedure for making a claim of public interest immunity, and the kinds of information and documents which may be the subject of such a claim, are discussed in the Government Guidelines for Official Witnesses mentioned above.
The Senate accepts that public interest immunity may be claimed by Ministers (and officials can refuse to answer questions pending an opportunity for a Minister to make such a claim).7 However it does not accept that such claims by the Executive are a conclusive answer. The position adopted by the Senate has been that the claim may be determined by the Senate and, if determined against the Executive, that the Senate has the legal right to the information.8
In contrast, the Executive has adopted the view that a statement that disclosure is contrary to the public interest made by a Minister in response to a summons from a House or committee is conclusive.9 In the absence of any exercise of the penal powers of the Senate, the practical effect of this approach to date has been that conflicts are resolved in the political arena rather than in the courts.
In recent times, the predominant view, both in the Executive and the Senate, has been that the courts should not have jurisdiction to determine such claims of public interest immunity.10 It seems a consensus may be developing that the resolution of these disputes is essentially a matter of political judgment, not a question of legal rights and obligations.11
Legal Professional Privilege
Legal professional privilege is a common law principle which allows a person, in civil and criminal cases, to preserve the confidentiality of statements and other materials which have been made or brought into existence for the sole purpose of seeking or being furnished with legal advice by a practising lawyer, or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings.12 The principle has no formal application in parliamentary proceedings. However, the Government Guidelines for Official Witnesses suggest that material which is subject to legal professional privilege may in some circumstances also be subject to a claim of public interest immunity.13 The confidential nature of material which is subject to legal professional privilege is a consideration which a committee can take into account in deciding whether to press for its disclosure.
The fact that particular information is confidential, for example, because it relates to the commercial activities of a person or body, does not provide grounds for resisting disclosure of the information on the basis of public interest immunity. Nevertheless, a witness may inform a committee of the confidential nature of information and, in particular cases, a committee may agree not to require the production of such information. For example, a committee may not require production if it is evident that to do so would prejudice the future provision to the Government of the relevant kind of confidential information.
Matters of Policy
A government officer should not advocate, defend or canvass the merits of government policies when giving evidence to a committee. It is for the relevant Minister to assist the committee with such issues.14 A witness may, however, describe policies to a committee and, if the Minister agrees, discuss policy options for dealing with a particular issue.15
Relevance of Question
A committee can only inquire into matters which fall within its terms of reference. Accordingly, a witness is not required to disclose information or produce documents in response to a question or request which is not related to a committee's terms of reference. Similarly, a witness cannot be required to disclose information in response to a question relating to a matter which is the responsibility of a person within another part of the Government. For example, an officer of the Department of Immigration and Multicultural Affairs cannot be required to answer a question which relates to a matter for which the Department of Communications and the Arts is responsible.
As a general rule, a witness before a parliamentary committee cannot refuse to answer a question on the ground that to do so would be incriminating. That is because a witnesses response to a committee's question is privileged and therefore cannot be relied upon or questioned in court proceedings. The response could not be relied on as a basis for bringing criminal proceedings against the witness.16 The position is probably different in relation to some statutory committees where a witness is permitted to refuse to answer questions on grounds on which a witness in a court could do so, including self-incrimination. For example, section 25 of the Public Works Committee Act 1969 provides:
'A person summoned to appear or appearing before the Committee as a witness has the same protection and privileges, and is, in addition to the penalties provided by this Act, subject to the same liabilities in any civil or criminal proceeding, as a witness in proceedings in the High Court.'17
Giving Evidence in a Closed Hearing
As an alternative to resisting disclosure of information and documents, a witness may request that a committee hear certain evidence 'in camera', that is, in proceedings which are closed to the public. A witness before most Senate committees has the option of seeking a closed hearing for sensitive material.18 In certain circumstances a witness before the Parliamentary Standing Committee on Public Works or the Joint Committee of Public Accounts will have a right to give evidence in private and for that evidence to be kept confidential. For example, section 23 of the Public Works Committee Act 1969 relevantly provides:
(2) Where, in the opinion of the Committee, any evidence proposed to be given before, or the whole or a part of a document produced or proposed to be produced in evidence to, the Committee relates to a secret or confidential matter, the Committee may, and at the request of the witness giving the evidence or producing the document shall:
(a) take the evidence in private; or
(b) direct that the document, or the part of the document, be treated as confidential.
(4) Where, at the request of a witness, evidence is taken by the Committee in private:
(a) the Committee shall not, without the consent in writing of the witness; and
(b) a person (including a member) shall not, without the consent in writing of the witness and the authority of the Committee under subsection (6);
disclose or publish the whole or a part of that evidence.
(5) Where evidence is taken by the Committee in private otherwise than at the request of a witness, a person (including a member) shall not, without the authority of the Committee under the next succeeding subsection, disclose or publish the whole or a part of that evidence.
(6) The Committee may, in its discretion, disclose or publish or, by writing under the hand of the Chairman, authorize the disclosure or publication of, evidence taken in private before the Committee, but this subsection does not operate so as to affect the necessity for consent of a witness under subsection (4).'19
The option of a closed hearing is not available in the case of a Senate Legislation Committee when it is considering estimates of proposed or additional expenditure.20 However, such a committee may take evidence in camera when it is performing non-estimates functions.21
Secrecy provisions (that is, legislative provisions which purport to restrict disclosure of certain information) do not bar production of documents or information to a House or a committee, unless the secrecy provision concerned necessarily deals with such production. The power of a House or a duly authorised committee derived from section 49 of the Constitution to question witnesses or send for papers can only be taken away in an Act by express words or, probably also, a necessary implication of the legislation.
Has the Committee Made a Request?
A final point worth noting is that it is the committee, not individual members, which can require a witness to answer questions or produce documents. If an individual member asks a question or seeks documents, the witness may consider it appropriate to seek confirmation from the Chairperson of the Committee that the Committee requires a response to the member's question or request.
Contempt - Failing to Comply with a Committee's Directions
If a witness does not attend in response to a summons, or does not answer a question or produce a document, a committee has no power to compel these things.
A House of Parliament (as opposed to a committee of a House) has the power to impose a penalty of a fine or imprisonment where it finds that a person has committed an offence within the meaning of section 4 of the Parliamentary Privileges Act 1987. An 'offence' requires conduct which 'amounts, or is intended or is likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member'.
Section 9 of the Parliamentary Privileges Act 1987 now requires that a warrant committing a person to custody set out the particulars of the matters determined to constitute the breach of privilege or contempt. This provision now allows a court to determine whether the ground for the imprisonment was sufficient in law. It seems, however, that a court would not be entitled to examine 'proceedings in Parliament' for that purpose.22
Each House of Parliament has the power to fine as an alternative to imprisonment.23 A fine could be enforced using the general law for recovery of debts and, unlike imprisonment, does not require a resolution and a warrant setting out particulars of the matters determined to constitute the offence. This clearly still restricts the capacity of a court to review whether the conduct could amount to a breach of privilege.
Other sanctions, such as penalties imposed for offences in relation to the giving of evidence to the statutory committees24 would be dealt with by the criminal courts in the usual way.
Points to Remember
Before You Attend
Appearing as a witness before a Parliamentary Committee, or before a court or tribunal, can be a difficult experience. It is important that a witness be thoroughly prepared.
- Be familiar with the Committee's terms of reference.
- Be familiar with all the relevant material.
- In particular, ensure you are familiar with any formal Departmental or Government submission that has been made to the Committee.
- Ascertain what issues the Committee is particularly interested in. The Committee's Secretariat may be able to assist you in this regard.
- Prepare an outline of your presentation.
- Think about what questions might be asked, and develop answers.
- Consult with other relevant Departmental officers and, if necessary, your Minister.
It is also important that care be taken in answering questions.
- Listen carefully to the question.
- Consider whether it is appropriate for you to answer it. In particular, consider whether the question:
- is relevant to the terms of reference;
- relates to a matter which is the responsibility of another Department or agency;
- relates to a matter of policy;
- asks for material that is subject to public interest immunity or legal professional privilege;
- asks for material which will incriminate you; or
- asks for confidential material.
- If it is not appropriate for you to answer the question, raise this with the Committee, and if necessary your Minister.
- Consider whether you should ask that the answer be taken in camera.
- Consider whether you know the answer, if not, say so. Questions can be taken on notice.
- Answer clearly and concisely.
- If an extended answer is required, develop a structure to the answer. Explain that structure to the Committee, follow it, and summarise.
2 Other joint parliamentary committees are established by the Australian Security Intelligence Organization Act 1979; National Crime Authority Act 1984; Australian Securities Commission Act 1989; Native Title Act 1993; and Parliamentary Proceedings Broadcasting Act 1946.
10 Government submission to Senate Standing Committee of Privileges on the Parliamentary Privileges (Enforcement of Lawful Orders) Bill 1994 (August 1994); Senate Standing Committee of Privileges (49th Report) The Parliamentary Privileges (Enforcement of Lawful Orders) Bill 1994 (September 1994).
22 Subsection 16(3) of the Parliamentary Privileges Act 1987 would present an obstacle to a court having regard to the proceedings of Parliament for these purposes. The exception in subsection 16(6) appears to relate only to criminal prosecutions.
ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)
The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.