Oral evidence

Invitation to give oral evidence

Sometimes, depending on the particular circumstances, a person who has not lodged a written submission is granted the opportunity to give evidence at a hearing. Committees need however to have some knowledge of the nature of evidence to be presented so that they can consider in advance, for example:

whether the prospective witness is likely to be acting in good faith;
whether the evidence is likely to be relevant and/or useful in the inquiry;
what lines of questioning they would like to adopt; and
whether the evidence should be taken in private.

Occasionally committees have sent questionnaires to appropriate organisations and used the responses to these questionnaires to form the basis for questioning at hearings.[29]

It is completely within a committee’s discretion to decide whether or not a person who has lodged a submission should be invited to appear as a witness. When persons give oral evidence their examination is usually substantially based on their written submissions, but it is not considered that committee members must confine their questions to matters dealt with in submissions. Witnesses may also be asked their opinions of other evidence. Sometimes oral evidence is thought unnecessary and no invitation is issued.

Procedures at hearings

Hearings are normally held in public but at the committee’s discretion they may be held in private. The authority to conduct public hearings is contained in standing order 235(a), which provides that a committee or a subcommittee may conduct proceedings by hearing witnesses, either in public or in private. This authorisation is reflected in the standing order which provides that a committee or subcommittee may admit visitors when it is examining a witness or gathering information in other proceedings.[30] Hearings are frequently attended by the general public and by media representatives. It is standard practice for the committee secretariat to notify the media in advance of proposed hearings and to advise individuals or organisations who have asked to be informed.

The chair or presiding member may open a hearing with a brief statement of its purpose and background, and may also outline the procedures to be followed by the committee. The first witness or witnesses are called to the table and may be required to swear an oath or make an affirmation (see page 696). The witness then sits at the table and is usually asked to state his or her full name and the capacity in which he or she is appearing before the committee, and whether the witness wishes to propose any amendment to the submission (see page 687). Before questions are put by committee members, it is usual for the chair to invite the witness to make a short statement to the committee.

The examination of witnesses before a committee or a subcommittee is conducted according to the procedure agreed on by the committee.[31] While procedures vary to some extent between committees, all operate on the principle that questions are asked and answered through the chair and in an orderly manner. All members should be given an equal opportunity to put questions to a witness. Questions put to witnesses are normally substantially focussed on the witnesses’ written submissions, but it is considered that committees are not confined to questioning witnesses only about matters raised in their submissions.

A member of the committee or a witness may object to a question, in which case the chair decides whether the witness should be required to answer. If there is any dissent by a Member from the chair’s decision, the chair may suspend the public hearing and have the witness (and other visitors) leave while the committee determines the matter in private, by vote if necessary.The committee may insist on the question being answered (see page 698).

The House has adopted the following provisions to be observed by committees of the House:

The Chair of a committee shall take care to ensure that all questions put to witnesses are relevant to the committee’s inquiry and that the information sought by those questions is necessary for the purpose of that inquiry.

Where a witness objects to answering any question put to him or her on any ground, including the grounds that it is not relevant, or that it may tend to incriminate him or her, he or she shall be invited to state the ground upon which he or she objects to answering the question. The committee may then consider, in camera, whether it will insist upon an answer to the question, having regard to the relevance of the question to the committee’s inquiry and the importance to the inquiry of the information sought by the question. If the committee determines that it requires an answer to the question, the witness shall be informed of that determination, and of the reasons for it, and shall be required to answer the question in camera, unless the committee resolves that it is essential that it be answered in public. Where a witness declines to answer a question to which a committee has required an answer, the committee may report the facts to the House.[32]

Other parts of the provisions (which are reprinted in full as an attachment to the standing orders) are quoted elsewhere in this chapter, although four particular provisions should be noted here:

A witness shall be given notice of a meeting at which he or she is to appear, and shall be supplied with a copy of the committee’s terms of reference and an indication of the matters expected to be dealt with during the appearance. Where appropriate a witness may be supplied with a transcript of relevant evidence already taken in public.

A witness may be given the opportunity to make a submission in writing before appearing to give oral evidence.

A witness shall be given reasonable access to any documents or records that the witness has produced to a committee

Witnesses shall be treated with respect and dignity at all times.[33]

During a hearing a witness may be asked to provide information or a document which is not immediately available. In such cases the witness may be asked or may volunteer to provide the information later in writing or, less often, at a subsequent hearing.

No person other than a member of the committee, or another Member participating by authorisation of the committee, may question a witness during examination. No witness may question a member or any other person present, but a witness may ask for clarification of a question. In 1971 the Speaker made a private ruling that (like committee staff) specialist advisers must not be permitted to question witnesses, comment on the evidence or otherwise intervene directly in formal proceedings at a public hearing.

Documents provided to a committee, including maps, diagrams, or other illustrated and written material, are sometimes included in the committee’s records as exhibits (see page 686). Historically, where it was thought necessary to incorporate material in the transcript and there was no objection to this course, the chair usually so ordered, although modern practice is that the transcript is regarded as a record of oral evidence only, and the incorporation of material is kept at a minimum. Hansard prepares a written transcript of evidence taken at hearings. Witnesses are given an opportunity to make corrections to the transcript. However, suggested amendments are acceptable only insofar as they provide a true record of what the witness said; the meaning cannot be changed.

The House has adopted the following provisions:

Reasonable opportunity shall be afforded to witnesses to request corrections in the transcript of their evidence and to put before a committee additional written material supplementary to their evidence. Witnesses may also request the opportunity to give further oral evidence.[34]

It is customary at the conclusion of public hearings for motions to be passed authorising the publication of the evidence taken (see page 717), thus conferring privilege on the publication of the transcript.

Witnesses may request that their evidence be taken in private and that documents submitted be treated as confidential. Such requests are usually but not necessarily granted (see ‘Private or in camera hearings’at page 697).

Less formal proceedings

Less formal means of gathering information are provided for by standing order 235, which provides for proceedings ‘in the form of any other meeting, discussion or inspection conducted under the practice of committees of the House’.

Inspections

In addition to gathering formal evidence, committees frequently undertake visits or inspections at which informal discussions take place. Such inspections permit members to familiarise themselves with places, processes, and matters which are important to their inquiries but which cannot be adequately described in formal evidence. If a quorum is present, these are formal proceedings (private meetings), and the committee’s minutes will reflect the nature of the inspections, as with private briefings.

Seminars, informal discussions, public meetings and workshops

Committees frequently decide that public meetings, round table discussions, seminars, workshops, discussions, briefings, or other similarly informal proceedings would be more appropriate for their purposes than formal hearings. Such procedures have been used:

to conduct preliminary discussions prior to the adoption of a formal reference;
to permit general background discussions at the beginning of an inquiry;
as a device for discussions on matters of interest to the committee but not the subject of a formal inquiry;
to obtain general community views; and
to obtain expert advice and scrutinise it with experts collectively.

Committees have made use of public meetings where there is widespread community interest in an inquiry and where, because of the large number of persons involved, the formal public hearing approach may be time-consuming and repetitive, yet still exclude many from the committee’s processes. Public meetings not only enable committee members to be exposed to community attitudes but also provide an opportunity for a large number of private citizens to put views to the committee.

As an alternative to a public meeting, some committees have followed a formal public hearing with a period during which members of the public present can seek to make a short (three to five minute) statement to the committee to express their views on the matter being investigated.

Committees also sometimes arrange discussions in a ‘round table’ format, either in public or in private, at which committee members sit at a table with invited participants, each person being given the opportunity to speak and to contribute to the general discussion. Round table public hearings, while still formal hearings, have witnesses from different organisations at the table being examined simultaneously.

Seminars and workshops can allow committee members to question experts and others, and such persons can also question each other directly. This process provides immediate opportunities to both clarify the issues and explain particular opinions.

The Standing Committee on Aboriginal and Torres Strait Islander Affairs has followed a practice of conducting informal discussions with Aboriginal communities and groups and a range of other community organisations during field trips in connection with its inquiries. As these discussions are not conducted under standing orders they are much more informal and allow for a much freer interchange of views than is normally possible in a public hearing context. In particular, they enable people who may be unwilling to submit themselves to the more formal procedures of a public hearing to express themselves openly. Hansard produces a precis of the informal discussions which is not published by the committee.

Although alternative processes of this nature can be helpful in particular inquiries, they are not regarded as a substitute for the normal hearing process under which witnesses may be questioned as fully as necessary to allow committee members to inform themselves on a matter. The information obtained in this manner does not have either the forensic value nor the technical status of formal evidence, although it can be used in committee reports, provided that the report indicates the manner in which the information has been obtained. Depending on the circumstances, the extent to which such informal proceedings enjoy parliamentary privilege could become an issue.

Minutes or a report, or both, on public meetings or seminars can be included in the committee’s records as an exhibit. The Hansard record of such proceedings is often not authorised for publication although it may be incorporated into the committee’s records as an exhibit.

Hearings by video or teleconference

A committee may conduct proceedings using audio visual or audio links with members of the committee or witnesses not present in one place. If an audio visual or audio link is used, committee members and witnesses must be able to speak to and hear each other at the same time regardless of location. A committee may resolve for a subcommittee to use audio visual or audio links.[35]

The following guidelines have been issued by the Procedure Committee to assist committees in deciding whether to conduct meetings using audio visual or audio links; they are to be used by each committee as it sees fit:

Audio visual or audio links may be used for deliberative meetings or for hearing oral evidence from witnesses or for any other proceeding described in standing order [235(b)].
Audio visual or audio links should only be used to hear evidence in camera if the committee is satisfied that the evidence will not be overheard or recorded by any unauthorised person and that the transmission is secure.
The following factors should be considered by a committee in deciding whether an audio visual or audio link is suitable for use in any particular circumstance:
1. whether use of the link will confer any benefit not available using traditional meeting processes eg cost or time savings, access to evidence not otherwise obtainable;
2. any benefit of traditional methods which may be lost. These may include the value of the committee being present at a location away from Canberra; the benefit of including regional, rural and remote areas in the work of the committee; the value of the public being able to observe the committee at work; or possible restrictions on the committee being able to interact freely with a witness;
3. real cost comparisons of alternative means of evidence collection;
4. the type of evidence to be heard. Specialist or expert evidence may be suited to hearing in this way. Audio visual or audio links may make it feasible to hear evidence from witnesses located outside Australia, however, the committee should take into account the fact that the protection afforded by parliamentary privilege would not extend beyond Australia; and
5. whether evidence is likely to be contentious or a witness needs to be tested rigorously for truthfulness or there is any concern about the identification of the witness. If the committee wishes to administer an oath an authorised officer must be present with the witness to administer it.
Any other factors which the committee considers relevant should be taken into account and a decision made appropriate to the particular circumstances of the proceeding, inquiry or witness.[36]

An early example of a public hearing conducted by video conference was a hearing of the Aboriginal and Torres Strait Islander Affairs Committee on 3 November 2003—the committee meeting was in Parliament House and the witnesses in Darwin. Hearings of this kind by video or teleconference are now not uncommon.

Committees have also taken evidence from witnesses overseas by electronic means. For example, in 2005 the Family and Human Services Committee took evidence via teleconference from a witness in Taiwan for the inquiry into the adoption of children from overseas. The teleconference took place during a private meeting of the committee. The witness was advised that her evidence would not be covered by privilege outside Australia. After seeking agreement from the witness the committee authorised publication of the transcript.

Also in 2005 the Family and Human Services Committee gave evidence collectively via a live audio-visual link to a committee of the Scottish Parliament. The ‘witnesses’ gave evidence as a committee in a formal meeting in order to ‘bolster’ the privilege associated with the hearing for both committees. The evidence given by the members of the Australian committee was taken as formal evidence by the Scottish committee and authorised by it for publication. In 2008 the Petitions Committee took evidence by teleconference from the Public Petitions Committee of the Scottish Parliament for its inquiry into electronic petitioning.

Televising, filming and recording of proceedings

Public hearings in Parliament House are regularly televised for the House monitoring system, thus allowing them to be viewed live by occupants of Parliament House and to be webcast on the Parliament’s web site. The signal is also available to networks for rebroadcast.

Committees of the House are permitted to allow the recording of their proceedings for radio or television broadcasting, subject to a number of conditions set down by the resolution of the House of 9 December 2013, which authorised the broadcasting and re-broadcasting of proceedings, including committee proceedings.[37] The resolution provides as follows:

3. Broadcast of committee proceedings The following conditions apply to the broadcasting of committee proceedings:

Recording and broadcasting of proceedings of a committee is subject to the authorisation of the committee;

A committee may authorise the broadcasting of only its public proceedings;

Recording and broadcasting of a committee is not permitted during suspensions of proceedings, or following an adjournment of proceedings;

A committee may determine conditions, not inconsistent with this resolution, for the recording and broadcasting of its proceedings, may order that any part of its proceedings not be recorded or broadcast, and may give instructions for the observance of conditions so determined and orders so made. A committee shall report to the House any wilful breach of such conditions, orders or instructions;

Recording and broadcasting of proceedings of a committee shall not interfere with the conduct of those proceedings, shall not encroach into the committee’s work area, or capture documents (either in hard copy or electronic form) in the possession of committee members, witnesses or committee staff;

Broadcasts of proceedings of a committee, including excerpts of committee proceedings, shall be for the purpose only of making fair and accurate reports of those proceedings, and shall not be used for:

political party advertising or election campaigns; or

commercial sponsorship or commercial advertising;

Where a committee intends to permit the broadcasting of its proceedings, a witness who is to appear in those proceedings shall be given reasonable opportunity, before appearing in the proceedings, to object to the broadcasting of the proceedings and to state the ground of the objection. The committee shall consider any such objection, having regard to the proper protection of the witness and the public interest in the proceedings, and if the committee decides to permit broadcasting of the proceedings notwithstanding the witness’ objection, the witness shall be so informed before appearing in the proceedings.

Important questions of principle arise in respect of the rights and legitimate interests of witnesses and of third parties who may be the subject of comment in proceedings conducted under privilege. The atmosphere in which the televised proceedings are held might also affect a witness significantly in some cases, as experience of the televising of committee proceedings in some jurisdictions would seem to suggest. Such considerations are recognised in the conditions set out above. While the concerns of witnesses must be recognised, committees have been encouraged to permit televising of their proceedings to increase awareness of the activities of committees.

Because these matters are not covered by the Parliamentary Proceedings Broadcasting Act, the protection attaching to a television or film company may be found to be similar to that enjoyed by any person who, with the approval of the committee, published a report of its proceedings—that is, qualified privilege only may apply. Members of a committee and witnesses appearing before it would have the usual protection from action in respect of statements made by them during the proceedings. The fact that the proceedings were telecast or filmed would not alter their legal position.[38]

Mainly because of the potential distraction to members and witnesses, photographs of committee proceedings are not permitted without the committee’s authority. Committees may agree to pose for photographs before or after a hearing or during a suspension of proceedings, or may permit photographs to be taken during proceedings.

People taking film, video or still photographs should have regard to the powers of each House to deal with any act which may be held to be a contempt or a breach of the rules applying to the taking of photographs in Parliament House.

Any person permitted by a committee to attend a hearing may make an audio recording of the proceedings. It is the responsibility of the person concerned to ensure that the recording is not used improperly or in contravention of the Parliamentary Proceedings Broadcasting Act or any other statute. Further, such a recording of proceedings has no special standing in terms of the laws governing the broadcasting of proceedings or the laws of parliamentary privilege.

Compulsory attendance

If a witness declines an invitation to give evidence, a committee may order the witness to attend the committee by summons, issued by the committee secretary.[39] The form of the summons is not prescribed by standing orders or by statute.

It appears to have been the practice of committees established in the early years of the Parliament to issue what were called ‘summonses’ to prospective witnesses, whether or not they had shown any reluctance to appear. Contemporary practice is for prospective witnesses to be invited to appear before the committee. The House has adopted the following provision:

A witness shall be invited to attend a committee meeting to give evidence. A witness shall be summoned to appear (whether or not the witness was previously invited to appear) only where the committee has made a decision that the circumstances warrant the issue of a summons.[40]

In 1963 the Joint Select Committee on Parliamentary and Government Publications summonsed two witnesses to appear before it. The witnesses were required to give evidence in relation to alleged threats to a witness because of evidence he had given to the committee. Each summons, which was signed by the clerk to the committee (i.e. committee secretary), showed the full name, designation and address of the person being summonsed.

On occasion witnesses, although not unwilling to give evidence, have not wanted to be seen as appearing on their own initiative—for example, because of concerns that the evidence that they might give could affect future employment prospects or affect business relationships with other witnesses. In such cases committees have assisted witnesses by summonsing them to appear. The use of a summons has also been considered necessary where evidence was sought from a witness on matters subject to a requirement of confidentiality.[41]

On relatively rare occasions, committees intent upon obtaining evidence from particular individuals or organisations reluctant to provide it have drawn attention to their powers to compel the giving of evidence and to the possibility that failure to comply with their orders might be dealt with as a contempt of the House. This approach has usually avoided the necessity of resorting to the issue of a summons.

It is unlikely that the House would take any action against, or in relation to, a recusant witness until that witness had refused or neglected to obey a formal summons. Failure to accept an invitation or request to appear before a committee could not be interpreted as a failure to obey an order of the committee. This view was supported by the Attorney-General in 1951 when the Senate Select Committee on National Service in the Defence Force reported to the Senate the failure of the Chiefs of Staff of the armed services and other specified officers of the Commonwealth service to appear before it (see page 712).[42]

In 2000 a witness was summonsed to appear before the Joint Standing Committee on Electoral Matters after he had been invited and had agreed to appear at a public hearing, but had failed to appear. The witness also failed to appear in response to the summons. However, he contacted the committee secretariat to explain his reasons for not attending, and appeared before a subsequent public hearing, and the committee did not take the matter of the failure to respond to the summons further.[43] In the 40th Parliament a public service official who had declined an invitation to appear before a joint committee was summonsed but still did not appear. The committee sought an explanation from the agency head and the official later appeared voluntarily. In the 43rd Parliament the House Standing Committee on Infrastructure and Communication summonsed individuals from certain companies to provide evidence in general terms on how information technology is priced in Australia, after written invitations to attend hearings had been repeatedly declined.[44]

Witness in prison

There is no longer an explicit House standing order relating to a witness in custody. According to May, when a witness is in prison, the person responsible for the prisoner’s custody may be directed by warrant issued by the Speaker to bring the witness to be examined.[45] If a joint committee were to require a witness to be brought from prison, it would appear to be desirable that the warrant be issued jointly by the Speaker and the President. In 2000 a witness serving a sentence appeared before a joint committee, but she did so voluntarily and with the co-operation of the prison authorities.

Witnesses’ expenses

Witnesses are not paid fees. At the discretion of the committee, payments may be made to witnesses for reasonable travel and accommodation expenses. This does not occur often. The ability of witnesses to appear by telephone or video link, and the capacity for committees to travel, have assisted with keeping down costs associated with witnesses appearing before committees.

Swearing of witnesses

There are no provisions in the standing orders for the swearing of witnesses. Committees of the House which have the power to call for persons, documents and records have the power to administer an oath to witnesses. This power is derived from the United Kingdom House of Commons by virtue of section 49 of the Constitution and on the basis that the UK Parliamentary Witnesses Act 1871 empowered the House of Commons and its committees to administer oaths to witnesses and attaches to false evidence the penalties of perjury.[46] There has been some doubt cast on whether joint committees [47] have this power [48] but some, such as the Joint Committee on Foreign Affairs, Defence and Trade, have sworn witnesses. According to May, a witness who refused to be sworn or to take some corresponding obligation to speak the truth could be dealt with by the House for contempt.[49]

The practice of swearing witnesses has become less common in recent years. Committees may exercise their discretion as to whether they require a witness to take an oath. In some situations it may be regarded by a committee as unnecessary in view of the House’s power to punish a witness who gives false evidence even when not under oath. If witnesses are not sworn, the committee should formally warn that the deliberate misleading of the committee may be regarded as a contempt of the House.

A reluctant witness, especially one who has been summonsed, should probably be sworn to impress upon him or her the importance and solemnity of the occasion and to ensure that an obligation to tell the whole truth is understood.

A witness who does not wish to take an oath is given the opportunity to make a solemn affirmation. The oath or affirmation is administered to the witness by the committee secretary. The oath and affirmation used by committees of the House take the following form:

Oath

Secretary: Please take the Bible in your right hand. Do you swear that the evidence you shall give on this examination shall be the truth, the whole truth, and nothing but the truth. So help you God.

Witness: I do. So help me God.

Affirmation

Secretary: Do you solemnly and sincerely affirm and declare that the evidence you shall give on this examination shall be the truth, the whole truth, and nothing but the truth.

Witness: I do.

An oath need not necessarily be made on the authorised version of the Bible. Every witness taking an oath should take it in a manner which affects his or her conscience regardless of whether a holy book is used or not.[50]

Private or in camera hearings

The standing orders refer only to private hearings; these are the same thing as in camera hearings referred to in the Parliamentary Privileges Act and in former standing orders. Private or in camera hearing of evidence is explicitly provided for by standing order 235 as follows: ‘A committee or a subcommittee may conduct proceedings … by hearing witnesses, either in public or in private’.

Visitors, including committee members’ personal staff and other Members who are not members of the committee, must leave when a committee or subcommittee is conducting a private hearing.[51]

Witnesses may request a private hearing but a committee will agree only for compelling reasons. Evidence which committees would normally take in private and not publish because of possibly adverse effects includes: evidence which might incriminate the witness, commercial-in-confidence matters, classified material, medical records and evidence which may bring advantage to a witness’s prospective adversary in litigation. In the last case the witness could be disadvantaged by having the details of a case made known to an adversary or by informing the adversary of the existence of certain evidence relevant to the witness’s case and even how the evidence might be obtained. Other reasons for private hearings could include evidence likely to involve serious allegations against third parties, a matter which is sub judice (see page 714) or a matter on which a Minister may otherwise claim public interest immunity (see page 710). When a witness makes an application for a private hearing, the committee decides the issue on the balance of the public interest and any disadvantage the witness, or a third party, may suffer through publication of the evidence.

The House has adopted the following provisions in relation to the taking of in camera evidence:

A witness shall be offered, before giving evidence, the opportunity to make application, before or during the hearing of the witness’s evidence, for any or all of the witness’s evidence to be heard in camera, and shall be invited to give reasons for any such application. The witness may give reasons in camera. If the application is not granted, the witness shall be notified of reasons for that decision.

Where a witness objects to answering any question put to him or her on any ground, including the grounds that it is not relevant, or that it may tend to incriminate him or her, he or she shall be invited to state the ground upon which he or she objects to answering the question. The committee may then consider, in camera, whether it will insist upon an answer to the question, having regard to the relevance of the question to the committee’s inquiry and the importance to the inquiry of the information sought by the question. If the committee determines that it requires an answer to the question, the witness shall be informed of that determination, and of the reasons for it, and shall be required to answer the question in camera, unless the committee resolves that it is essential that it be answered in public. Where a witness declines to answer a question to which a committee has required an answer, the committee may report the facts to the House.

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.[52]

Where a committee has wished to take evidence in public but wished also to protect the privacy of persons or their families, it has allowed witnesses to be identified as 'Witness 1, etc', although the secretariat has obtained the witnesses’ names.[53] UK House of Commons committees have occasionally taken evidence from witnesses whose names are not divulged where it is thought that ‘private injury or vengeance might result from publication’.[54]

Even though evidence is taken in private or documents received in confidence there can be no absolute guarantee that the evidence or documents will not at some future date be authorised for publication—see ‘Disclosure of private or in camera evidence’ below.

The Standing Committee on Aboriginal and Torres Strait Islander Affairs has on several occasions taken evidence in private which witnesses knew beforehand would be authorised for publication. This approach has been followed in order to make the process of giving evidence less stressful for the witnesses.

Answers to questions, provision of information

A committee may demand that witnesses answer questions. May states that witnesses are bound to answer all questions put to them and cannot be excused on grounds such as that:

they may become subject to a civil action;
they have taken an oath not to disclose a matter;
a matter was a privileged communication (for example by a client to a solicitor);
they have been advised that they cannot answer without the risk of incriminating themselves or being exposed to a civil suit; or
they would be prejudiced as defendants in pending litigation.

It is acknowledged that some of these grounds would be accepted in a court of law. May also notes that a witness cannot refuse to produce documents in his or her possession on the ground that they are under the control of a client who has given instructions that they not be disclosed without the client’s authority.[55]

Section 10 of the Evidence Act 1995 provides that that Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament.

As a committee may only exercise compulsive powers in relation to matters which the House has delegated to the committee by way of its terms of reference, a witness may object to a question on the grounds that it is outside the committee’s terms of reference or that the terms of reference are outside the House’s constitutional powers.

If a witness objects to a question the committee may, and frequently does, exercise its discretion in the witness’s favour. If the objection is overruled, the witness is required to present the oral or documentary evidence required. Failure to provide such evidence may be reported to the House and the witness may be punished for contempt.

The House has adopted the following provisions:

The Chair of a committee shall take care to ensure that all questions put to witnesses are relevant to the committee’s inquiry and that the information sought by those questions is necessary for the purpose of that inquiry.

Where a witness objects to answering any question put to him or her on any ground, including the grounds that it is not relevant, or that it may tend to incriminate him or her, he or she shall be invited to state the ground upon which he or she objects to answering the question. The committee may then consider, in camera, whether it will insist upon an answer to the question, having regard to the relevance of the question to the committee’s inquiry and the importance to the inquiry of the information sought by the question. If the committee determines that it requires an answer to the question, the witness shall be informed of that determination, and of the reasons for it, and shall be required to answer the question in camera, unless the committee resolves that it is essential that it be answered in public. Where a witness declines to answer a question to which a committee has required an answer, the committee may report the facts to the House.[56]

There has been no case where a witness, after declining to answer a question from a committee, has been reported to the House by that committee. If a committee wished to raise a matter it could resolve that the Chair, pursuant to standing order 51, raise the issue in the House as a matter of privilege. However, it is always preferable for a committee to resolve disputes with witnesses rather than escalate them to the House.

In 1982 the Joint Committee of Public Accounts summonsed the Commonwealth Crown Solicitor to appear before it with a number of files the committee considered would be pertinent to an inquiry. The Crown Solicitor refused to produce the documents sought by the committee, and in answer to a question without notice the Attorney-General stated that the reason the Crown Solicitor would not produce the documents was on the ground of legal professional privilege.[57] On the following day the chair of the committee, by leave, made a statement to the House to the effect that the Commonwealth Crown Solicitor’s claim was inappropriate. In addition, the chair incorporated a legal opinion supporting the committee’s argument and the chair also drew attention to the Greenwood and Ellicott paper which stated:

It also follows from the wide powers which committees can exercise that, if ordered to produce a document which contained communications which were privileged before Courts of law (e.g. between solicitor and client), a person would be in contempt if he did not do so.

Although these privileged communications are usually respected by committees, committees are not restricted in the same way as the Courts.[58]

Committees have at times had to negotiate with witnesses who were reluctant to provide specified evidence. The success of committees in such negotiations has been largely due to their ability to draw attention to their undoubted powers and the means by which they may be enforced.[59]

The House has adopted the following provision to be observed by committees:

Where a committee desires that a witness produce documents or records relevant to the committee’s inquiry, the witness shall be invited to do so, and an order that documents or records be produced shall be made (whether or not an invitation to produce documents or records has previously been made) only where the committee has made a decision that the circumstances warrant such an order.[60]

For discussion of the effect of a secrecy provision in an Act on the provision of information to a parliamentary committee see ‘Statutory secrecy provisions’ in Chapter on ‘Parliamentary committees’.

Evidence from Commonwealth public servants

The House has adopted the following provision to be observed by committees of the House:

A departmental officer shall not be asked to give opinions on matters of policy, and shall be given reasonable opportunity to refer questions asked of him or her to superior officers or to the appropriate Minister.[61]

The Government has issued guidelines to assist official witnesses in their dealings with the Parliament—Government guidelines for official witnesses before parliamentary committees and related matters.[62] As the title suggests the guidelines are intended to provide general guidance, and not inflexible rules. Basically their purpose is to assist Commonwealth public servants appearing before parliamentary committees by informing them of the principles they are required by the Government to follow. However, the guidelines state that they must be read in conjunction with relevant parliamentary and statutory provisions.[63]

The guidelines set out the Government’s views on matters such as: attendance at committee hearings; the Government’s expectations in the content of submissions; privilege considerations; aspects which might give rise to claims for public interest immunity; publication provisions; means of correcting evidence; and discretions relating to the extent to which the guidelines are applied.

Whilst these guidelines have not been accepted or endorsed by either House, they were issued after consultation with parliamentary staff and should be regarded as an attempt to assist government personnel and the Parliament by setting down the basic position of the Executive on a wide range of detailed matters connected with the operations of committees.

In 1969 the Joint Committee of Public Accounts set down its practice on questions to public servants about government policy. This practice, while to some extent reflecting the particular concerns of that committee, nevertheless represents a sensible balance between meeting the needs of most investigatory committees and recognising the role and responsibility of public servants. The joint committee said:

This Committee does not examine public servants on matters of Government policy. The understanding of Government policy, however, is itself essential to the effective operation of the Committee during specific inquiries as the Committee is concerned with the administrative out-workings of such policy. In these circumstances, the Committee has normally proceeded on the basis of asking public servants to outline for it the particular policy of the Government which is being administered by them. It does not ask public servants, however, to comment on the adequacy of such policies. It is not unusual to find that in the implementation of Government policy, departments and authorities develop administrative policies. In the past, the Committee has regarded this type of policy as within its purview and has examined public servants in the administrative policy field.[64]

(See also ‘Public interest immunity’ at page 710.)

Evidence from State public servants and State Members

State public servants have appeared before House and joint committees in response to an invitation. The need to have due regard to the position and responsibilities of State and Territory Governments is recognised. Most recent practice has been for committee chairs to write to the relevant State or Territory Premiers or Chief Ministers seeking cooperation with inquiries. Subsequently contact may occur at staff level. Cooperation is usually forthcoming but in some cases State Governments have been seen as unhelpful because of either refusal to cooperate or failure to contribute to an inquiry.[65]

As with Commonwealth officials it is accepted practice that State officials will not be asked to comment on government policy. In fact, State authorities have often insisted on agreement to this condition before permitting their officials to give evidence. Committee requests for personal appearances by State officials are usually directed to the relevant Minister, unless a contact official has been nominated, and adequate notice of the need for attendance is given.

The question of State public servants being compelled to give evidence before committees of the House of Representatives poses special problems, as constitutional issues are added to those relating to the role and responsibilities of government officials.

As noted previously, it is unclear in law as to whether the Commonwealth Houses and their committees have the full investigatory powers of the House of Commons or whether they are limited to those matters on which the Commonwealth Parliament may legislate. If the latter were the case, committees of the House could not expect that any demand that witnesses attend before them and give evidence on matters outside these constitutional limits could be enforced; beyond those limits evidence could be sought only on a voluntary basis from any person.

No committee of the Commonwealth Parliament has been prepared to summons a State public servant or Minister to give documentary or oral evidence which they have been unwilling to provide. If such a summons were issued, a State Government could seek to challenge it in the High Court or simply claim public interest immunity. In the highly unlikely event of either House of the Commonwealth Parliament attempting to deal with a State Minister or Government for contempt, the matter would appear to be one to be decided by the High Court.

In 1953 the Parliamentary Standing Committee on Public Works sought the Solicitor-General’s advice as to its power to summons a State official to give evidence before it. The Solicitor-General considered the matter so doubtful that the advice given was against making a test case by summoning a State official.[66] The relevance of this opinion to the powers of other committees is unclear as the Public Works Committee derives its power from statute, whereas committees appointed by resolution or pursuant to standing or sessional orders, given the appropriate authority, enjoy the powers of committees of the House of Commons as at 1901 by virtue of section 49 of the Constitution.

In light of the unclear constitutional situation, a committee would be wise to assume it would be found not to have authority to summons State officials or State Ministers to provide oral or documentary evidence where such persons have not provided material requested. A further complication could arise in the case of a former or retired State official. It would seem that if such a person is a citizen without any immunity he or she could be compelled to appear. However, difficult questions could arise if a committee sought to compel the production of information in respect of his or her duties as a State official. Advice can be sought in particular cases, and this was done in 1982 when the Standing Committee on Aboriginal Affairs was concerned over what it regarded as a lack of co-operation by a State Government in two of its inquiries. The committee sought the Attorney-General’s advice, which confirmed that the committee did not have the power to require the attendance of State officials. If the resolution of appointment of the committee was to be amended to give the committee this power, then the Attorney-General’s advice was that serious constitutional questions would arise. The committee felt that it was being hampered in making worthwhile recommendations and it reported its view that the State Government deserved strong condemnation for its lack of willingness to cooperate with the committee.[67]

During the course of an inquiry into the Australian Loan Council in 1993 a Senate select committee sought to receive evidence from five Members of State Parliaments. The committee recommended in a special report that the Senate ask the State Houses involved to require the attendance of the Members in question. The Senate passed such a motion.[68] Odgers reports that the Houses of the Victorian Parliament did not agree to require their Members to attend, but gave leave for them to appear if they thought fit and the Legislative Assembly of New South Wales accepted a statement by its Speaker that it did not have the power to compel its Members to appear before the committee.[69] In the event none of the Members listed in the motion gave evidence.[70]

In 2006 a Tasmanian government Minister and a Western Australian government Parliamentary Secretary appeared voluntarily before the Standing Committee on Family and Human Services. Neither was sworn although it was the practice of the committee at the time to swear witnesses. It was considered that there was some doubt about the committee’s power to swear witnesses from another Parliament.

Evidence from Members and Senators

Members or Senators may appear as witnesses before committees of the House. If a Member, including a Minister, volunteers to appear before a House committee the Member may do so and does not need to seek leave of the House. Ministers, including a Prime Minister, have appeared before committees of the House, and Ministers have briefed general purpose standing committees at the commencement of inquiries, or held discussions with committee members concerning possible inquiries or previous inquiries.[71]

May states:

A Member who has submitted himself to examination without any order of the House is treated like any other witness.[72]

If a committee wishes a Member to attend as a witness, the chair writes inviting the Member to attend. If the Member refuses to attend or to give evidence or information as a witness, the committee cannot summon the Member again, but must advise the House.[73] It is then for the House to determine the matter. These procedures have never had to be implemented in the House of Representatives. In appearing before the Committee of Privileges, Members (and Senators) have been required to swear an oath or make an affirmation and have been dealt with in the same manner as other witnesses.[74]

Senators cannot be compelled by the House to appear before it or before one of its committees, or to produce evidence. The same applies to Members in relation to the Senate and its committees. This immunity is entrenched practice, but derives ultimately from section 49 of the Constitution.

In 1920 a Senator of his own volition sought consent of the Senate to appear before a House of Representatives committee. The Senate, by motion, granted the Senator leave to attend and give evidence to the committee if he thought fit.[75] However, in 1973 and 1976 Senators appeared before the House of Representatives Standing Committee on Environment and Conservation without seeking leave of the Senate. Their appearance was at their own request. In 1994 members of a Senate committee attended a private meeting of the House Procedure Committee for informal discussions on the Senate committee’s experience with videoconference technology. In 2015 a Senator made a submission to the House of Representatives Standing Committee on the Environment and appeared before the committee without seeking leave of the Senate.[76]

There have been several instances of Members of the House who have appeared, as Ministers, before Senate committees.[77] In 1981 the Speaker appeared voluntarily before the Senate Select Committee on Parliament’s Appropriations and Staffing. In the same year the chair of the Senate Standing Committee on Finance and Government Operations wrote to a former Minister regarding an apparent conflict in evidence given to the committee during the course of its inquiry into the Australian Dairy Corporation and its Asian subsidiaries.[78] The former Minister, who at the time had another portfolio, wrote to the committee. There was still a discrepancy between the sworn evidence of one witness and the recollections of the Minister as expressed in the letter. As a result of further correspondence the Minister made a personal explanation in the House of Representatives. During the course of this personal explanation the Minister stated:

I do not believe it appropriate that a Minister of this House should appear and give sworn evidence before a committee of the other House.[79]

A copy of this personal explanation was forwarded to the committee and the chair made a statement to the Senate shortly afterwards.

Standing orders of both Houses set down procedures to be followed if a member of the other House is to be called to give evidence before a committee. If a committee of the House wishes to call before it a Senator who has not volunteered to appear before it as a witness, a message is sent to the Senate by the House requesting the Senate to give leave to the Senator to attend for examination.[80] Upon receiving such a request the Senate may authorise the Senator to attend.[81] In 1901 the Senate ordered that a Senator have leave to give evidence before the Select Committee on Coinage if that Senator thought fit [82] and, in response to a request from the House of Representatives,[83] the Senate has granted leave to authorised Senators to attend and give evidence before the House of Representatives Committee of Privileges.[84] The Senators appeared and gave evidence having sworn oaths/made affirmations.[85] On 7 March 2001 the Senate gave leave to seven Senators, members of the Joint Standing Committee on Foreign Affairs, Defence and Trade, to appear before the House Privileges Committee, ‘subject to the rule, applied in the Senate by rulings of the President, that one House of the Parliament may not inquire into or adjudge the conduct of a member of the other House’.[86]

Using similar procedures to those followed by the House,[87] the Senate has requested that Members of the House be given leave to attend and be examined by Senate committees. House standing order 252(a) provides that if the Senate asks the House by message for a Member to attend before the Senate or one of its committees, the House may authorise the Member to attend, provided the Member agrees. In its early years the House several times resolved to grant such leave to Members, adding the qualification that the Member may attend and give evidence ‘if he think fit’.[88] In 1913 the House considered a request from the Senate that six named Members, including the Prime Minister, be granted leave to be examined as witnesses before the Senate Select Committee on General Elections. On motion moved by the Prime Minister, the House resolved to grant such leave only to three of the Members, all of them opposition Members. The Prime Minister explained that the three government Members whose attendance had been requested were not included in the motion because they did not desire to attend.[89] After the receipt of the message from the House was announced in the Senate, the President stated in answer to a question:

The Senate sent a request to the House of Representatives; but it is no part of our duty, nor have we any right to dictate to the House of Representatives as to what it should or should not do. We have no right to ask it to give reasons as to why it has complied with a part and not the whole of our request.[90]

A similar request for the attendance of Members before another Senate committee was received later on the same day and was dealt with in the same manner.[91]

In 1993 the Senate requested the House to require the attendance of the Treasurer before a Senate select committee. The request was considered by the House, but rejected, in the following terms:

That the House of Representatives … :

notes that the Senate’s request that the House require the attendance of a Member of the House before a committee of the Senate does not conform with the practice of requesting the House to give leave for a Member to attend;

resolves that it is not appropriate that a Minister of this House should appear and give evidence before a committee of the Senate against the Minister’s will;

further resolves that it is not appropriate that any Member of the House of Representatives be required to appear before a committee of the Senate against the Member’s will;

confirms that it is for each Member to determine whether the Member thinks fit to appear before a committee of the Senate; and

declines to require the Honourable John Dawkins MP to attend before the Senate Select Committee on the Functions, Powers and Operation of the Australian Loan Council.[92]

In 1901 the House granted a Member leave, if he thought fit, to attend and be examined by a select committee of the Victorian Legislative Assembly.[93]

The Speaker has declined an invitation to make a submission to the Senate Committee of Privileges in connection with an inquiry into matters arising at a joint meeting of the Houses held in October 2003, instead referring the committee to a statement he had made in the House.[94] In 2005 Speaker Hawker made a written submission to the Senate Committee of Privileges in connection with a general inquiry into the unauthorised disclosure of committee information.

Evidence from former Members and Senators

Opinions differ over whether the immunity of Members and Senators from compulsion by the other House extends to former Members and Senators. Odgers asserts that it does not, citing the case of a former Treasurer and a former Prime Minister, no longer Members, being summonsed to appear before a Senate committee in 1994.[95] This question again arose in 2002 during the inquiry by the Senate Select Committee on a Certain Maritime Incident. Legal opinions provided to the committee and advice from the Clerk of the House and the Clerk of the Senate did not agree on whether the former Minister for Defence, a former Member of the House, could be compelled to give evidence to the committee relating to his conduct as a Minister and Member. The view of the Clerk of the House was that the immunity probably extended to former Members.[96] The committee accepted the view of the Clerk of the Senate, but decided not to summons the former Minister, stating that it believed the summons would be contested in the courts, incurring expense for the taxpayer and causing delay to the inquiry.[97]

Evidence from parliamentary staff

If a committee of the House wishes to call a Senate staff member to give evidence, a message is sent to the Senate by the House requesting the Senate to give leave to the staff member to attend for examination.[98] Upon receiving such a request the Senate may authorise the staff member to attend the committee.[99] If the Senate were to ask the House by message for an employee of the House to attend before the Senate or one of its committees, the House may instruct its own employee to attend.[100]

In 1975 the Joint Committee on the Parliamentary Committee System formally sought the agreement of the Clerk of the House to the appearance before it of two employees of his department. It was noted that the standing orders concerning the appearance of parliamentary staff before committees were always interpreted liberally. Formal approval was sought in this case because the staff concerned sought to present personal views rather than to speak on behalf of the department. The Clerk gave approval.

In 1971, at the request of the Committee of Privileges, the Clerk Assistant and the Serjeant-at-Arms appeared before the committee to give their account of proceedings referred to in an article in the Daily Telegraph which had been referred to the committee.[101] In 1973 the Secretary of the Joint Committee on Prices appeared before the Committee of Privileges and in 1987 members of a select committee secretariat gave evidence to the committee. In 1978 the Clerk of the House and the Serjeant-at-Arms appeared before the Senate Committee of Privileges to give evidence relating to the security of Parliament House.[102] The Clerk and other House staff have appeared informally before the Broadcasting Committee and the Procedure Committee to discuss matters being considered by the committee.[103] At the request of the Standing Committee on Community Affairs, the Assistant Secretary (Committees) appeared at a public hearing in 1995 in relation to the committee’s inquiry into migrant access and equity.[104]

The Clerk of the House is routinely invited to make submissions to inquiries by the Procedure Committee, and to provide oral evidence. In recent years the Clerk has lodged written submissions addressing issues relevant to the administration or interests of the Department of the House of Representatives to several committee inquiries. The Clerk and senior officers have also given oral evidence in association with submissions.[105] In 2015 the Clerk provided submissions to the Senate Standing Committee on Finance and Public Administration inquiries into the Parliamentary Service Amendment Bill 2014, and into proposed Parliament House security upgrade works. In 2017 the Clerk gave oral evidence to the Senate Select Committee on a National Integrity Commission in relation to the adequacy of the Australian Government’s framework for addressing corruption and misconduct. In 2018 the Clerk made a submission to the Joint Committee on Intelligence and Security, providing advice on the privilege implications of the Foreign Influence Transparency Bill 2017.

Secretariat staff members of joint committees have appeared before the Privileges Committee in relation to inquiries into the possible unauthorised disclosure of proceedings or private evidence.[106]

Evidence as to proceedings

Only if the House grants permission, may an employee of the House, or other staff employed to record evidence before the House or one of its committees, give evidence relating to proceedings or give evidence relating to the examination of a witness.[107]

In 1974 an inquiry was conducted by the Australian Broadcasting Control Board into allegations that certain television stations had suppressed television news coverage of a report presented by the Joint Committee on Prices.[108] The Clerk of the House received a request for the clerk to the committee (i.e. committee secretary) to make a statement and, if necessary, to give evidence before the board of inquiry. In giving permission for the clerk to the committee to make a statement it was made clear that he could not give evidence in respect of any proceedings before the committee without the leave of the House, and that this restriction was imposed by the standing orders of both Houses.[109] The clerk to the committee appeared before the inquiry and read a statement in which no reference was made to any proceedings of the committee and which contained only factual information as to when and to whom copies of the committee’s report had been distributed after it had been presented to the Senate and ordered to be printed.

Subsection 16(6) of the Parliamentary Privileges Act provides that neither the section nor the Bill of Rights prevents or restricts the admission in evidence and examination of proceedings in connection with the prosecution for an offence against an Act establishing a committee. Section 17 of the Act provides, inter alia, that a certificate signed by or on behalf of the Speaker or President, or a committee chair, in relation to committee records, evidence, etc. is evidence of the matters contained in the certificate. (And see Chapter on ‘Parliamentary Privilege’.)

Evidence from judges

Judges have appeared as witnesses before House committees. These appearances have been voluntary and have concerned matters of law and policy.[110]