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Chapter 17 - Witnesses
Members
or officers of other Houses
As noted in Chapter 2, under Power to conduct inquiries, as
a matter of comity between legislatures, and perhaps as a matter of law, the
Senate may not summon members of the House of Representatives or of state and
territory legislatures. Senate procedures reflect this rule.
If the Senate or
one of its committees requires the attendance of a member or officer of the
House of Representatives, standing order 178 requires a message to be sent
to that House. The message is framed as a request that the House give leave for
the member or officer to attend. A similar provision is in the standing orders
of the House of Representatives and is referred to in standing order 179, which provides
that, on receipt of a message from the House of Representatives, the Senate may
authorise the attendance of a senator or Senate officer before a House
committee.
The standing orders are interpreted as not preventing the voluntary
appearance by invitation of members and officers of one House before the
committees of the other. It is quite common for members of the House of
Representatives or of state parliaments to appear before Senate committees by
invitation, and many have done so. In 1981, a Speaker of the House of
Representatives appeared before a Senate committee for the first time, the
Select Committee on Parliament’s Appropriations and Staffing (see SD, 19/11/1981, p. 2409). On
several occasions, House of Representatives ministers have appeared before
Senate committees, rather than following the usual practice of being
represented by a Senate minister. The Senate Industry, Science and Technology
Committee, for example, during its inquiry into the Australian Nuclear Science
and Technology Organisation Amendment Bill 1992 in May 1992, heard evidence
from the Minister for Science and Technology who was a member of the House of
Representatives, the New South Wales Minister for the Environment and a state
member. The systematic consideration of bills by Senate committees has resulted
in more frequent appearances by state parliamentarians representing their
interests in relation to bills affecting Commonwealth-State relationships, such
as the Forest Conservation and Development Bill 1991, the Medicare Agreements
Bill 1992 and the Native Title Bill 1993. The Community
Affairs Legislation Committee on 5 May 1998 heard evidence from most state and territory health
ministers simultaneously in relation to the Health Legislation (Health Care
Amendments) Bill 1998. The Select Committee on Medicare in 2003 heard several state
health ministers. The New South Wales Minister for Justice represented all his
state and territory counterparts at the hearing of the Legal and Constitutional
Legislation Committee into the Anti-terrorism Bill (No. 2) 2004. State and
territory ministers appeared before the Employment, Workplace Relations and
Education Legislation Committee in its inquiry into workplace agreements and
workplace relations legislation in October and November 2005.
This informal
procedure of appearance by invitation is used only in cases where members are
offering their views on matters of policy or administration under inquiry by
Senate committees. The procedure has not been used in cases where the conduct
of individuals may be examined, adverse findings may be made against
individuals or disputed matters of fact may be under inquiry. For such cases it
is considered that the formal process of message and authorisation to appear
should be employed. This procedure was
invoked in December 1993 when the House requested the appearance of a senator
before its Committee of Privileges in relation to an investigation of an
alleged unauthorised disclosure of the draft report of a joint committee of
which the senator was a member. The Senate authorised the appearance of the
senator before the House Committee of Privileges (16/12/1993, J.1077; see also 5/12/1986, J.1576; 7/3/2001, J.4043).
The standing orders are also not regarded
as preventing the Privileges Committee of one House seeking the written
comments of a member of the other House on a matter under inquiry. This has
been done by the Senate Privileges Committee on occasions when it has conducted
inquiries into unauthorised disclosures of documents of joint committees. The
committee has, on these occasions, written to members of the House of
Representatives and asked them whether they have any relevant knowledge about
the matter under inquiry. To have members of one House attend for examination
before a committee of the other, however, would require the formal process of a
message. The rationale of this distinction between providing written
information and giving oral evidence is that a written inquiry is in the nature
of a preliminary step to see whether a full formal hearing is warranted,
whereas submitting a member to examination before a committee is a more formal
and rigorous inquiry process which also involves a much greater possibility of
inquiry into the conduct of the member. (By contrast, see report of the United
Kingdom House of Commons Standards and Privileges Committee, HC 447 2003-04,
for a contempt found, against a minister (the Lord Chancellor), in the absence
of a culpable intention, after he gave evidence voluntarily before the
committee.)
Although the standing orders refer to the House to which a request is
made giving permission for its member to appear, it is open to that House to
compel the member to appear. As either House may compel its members to appear
for the purposes of its own inquiries, it follows that a House can compel its
members to appear in an inquiry by another House.
The granting of permission for members of one House to appear before
the other House or its committees does not, however, suspend the rule that one
House may not inquire into or adjudge the conduct of a member of the other
House, other than the conduct of a minister in that capacity. The Senate so
declared in granting permission for senators to appear before the House
Privileges Committee in an inquiry into the unauthorised disclosure of joint
committee documents in 2001 (7/3/2001, J.4043). (See also Chapter 19, Relations
with the Executive Government, under Ministerial accountability and censure
motions, for material on censure of private members of the other House.)
One of the rare occasions of the use of the procedure
under standing order 178 highlights this
principle, as well as a probable limitation on the Senate’s power to compel
evidence. The Select
Committee on the Powers, Functions and Operation of the Australian Loan Council
was appointed on 3 November 1992 to investigate reports that the state of Victoria had exceeded its
borrowing limits with the knowledge of the federal Treasurer. The committee’s
invitations to appear were met with refusals from several witnesses, including
members of state parliaments and the House of Representatives. The committee
sought advice from the Clerk of the Senate
on whether the Senate could compel members of the House of Representatives and
members of state parliaments to appear.
The Clerk’s advice
was that the Senate did not possess this power. Two bases for the advice were
given. The first was that it is a parliamentary rule that a house of parliament
does not seek to compel the attendance of members of the other house, as a
matter of comity between the houses and of respect for the equality of their
powers. This rule is embodied in standing order 178. The Clerk
advised that this parliamentary rule should be regarded as extending to the
houses of state and territory parliaments, as a matter of comity with those
houses and respect for their powers of inquiry.
Secondly, it was advised that, should the matter ever be adjudicated by
the courts, the courts could find that as a matter of law the Senate does not
possess this power. The courts could arrive at such a finding by reading the
parliamentary rule as a rule of law, as courts have done with other
parliamentary rules in the past, or, more probably, could find in the
Constitution an implied limitation on the powers of the federal Houses in
respect of each other and the state houses, on the basis of the doctrine of
integrity of state institutions which has been expounded in other judgments.
The committee was also advised that the House of Representatives and the state
houses could, at the request of the Senate, compel their members to attend
before a Senate committee if they considered it was in the public interest to
do so. (The advice is contained in the interim report of the committee, March
1993, PP 78/1993.)
The committee presented a report to the Senate on 30 September 1993
(Second Report, PP 153/1993), recommending that the Senate request the
House of Representatives and certain state houses to require the attendance of
certain of their members before the committee to give evidence. The Senate
agreed to a resolution to make the various requests on 5 October (J.566). A
message from the House of Representatives, declining to accede to the request
in respect of the Treasurer, was received on 7 October. Responses from the
Victorian Houses were received on 20 and 21 October. The Victorian Houses did
not accede to the requests to require their members to appear, but passed
resolutions giving the members leave to appear if they thought fit. As these
resolutions were passed without debate, it is not clear whether the view was
taken that the Houses do not have the power to require their members to appear
before a committee of another house, or whether the Senate’s requests were
declined for other reasons. The New South Wales Legislative Assembly accepted a
statement by its Speaker that it did not have the power to compel its members
to appear before a Senate committee.
The Select
Committee on Unresolved Whistleblower Cases (report, PP 344/1995, pp 138-40)
and the Select Committee on the Victorian Casino Inquiry (report, PP 359/1996)
received and accepted similar advice.
For an instruction
by the Senate to a committee to
invite the Prime Minister and another
minister to give evidence, see 9/3/1995, J.3063-4.
In the course of its inquiry into the regional partnerships program in
2005, the Finance and Public Administration References Committee received
evidence about the conduct of members of the House of Representatives, but did
not consider such evidence except to the extent that it was relevant to the
matter under inquiry by the committee (statement by Senator Forshaw, chair of
the committee, transcript of hearing 3/2/2005, pp 26-7).
The Privileges Committee in 2007 refrained from finding the contempt of
improper refusal to provide evidence on the part of a person because a full
hearing of the matter would have involved allowing the person to question a
member of the House of Representatives (131st report of the committee, PP
171/2007, endorsed by the Senate 20/9/2007, J.4463).
This probable
immunity of members of other houses does not apply to former members. During
the course of an inquiry by the Select Committee on Certain Foreign Ownership
Decisions in relation to the Print Media in 1994, evidence was taken from two
former Treasurers and a former Prime Minister, all of whom had ceased to be members
of the House of Representatives. One former Treasurer appeared voluntarily but
the other two former members appeared only in response to summonses. The former
Prime Minister subsequently reappeared before the committee voluntarily.
In 2002, in the context of the Senate
Select Committee on a Certain Maritime Incident, which investigated, amongst
other things, the role of ministers and former ministers in election publicity
about refugees, a claim was raised by the Clerk of the House of Representatives
that former House of Representatives ministers, and ministerial staff (see
below), possess some kind of immunity against being summoned by a Senate
committee. This was based on a notion of a supposed exclusive right of the
House, and inability of the Senate, to hold ministers accountable, a notion
which, given rigid executive government control of the House, amounts to a
rejection of parliamentary accountability. Advice provided by the Clerk of the
Senate and a senior barrister experienced in parliamentary privilege law and
litigation made it clear that there is no constitutional or legal basis for any
such immunity. The claim was not accepted by any members of the committee,
although they disagreed about whether a former minister should be summoned. (report
of the committee, 23/10/2002, PP 498/2002; SD, 23/10/2002, pp 5756-7)
The question has occasionally arisen as
to whether Senate committees may summon ministerial staff and departmental
liaison officers to appear before them and give evidence. Such persons have no
immunity against being summoned to attend and give evidence, either under the
rules of the Senate or as a matter of law. Departmental liaison officers are
not in any different category from other departmental officers. From time to
time it has been suggested that ministerial staff are in a special category and
should not give evidence before parliamentary committees (Senator Collins, SD
30/5/1996, p. 1391). Such staff have, however, appeared before Senate
committees and given evidence, both voluntarily and under summons. In February
1995 the then Minister for Finance, Mr Beazley, declined to allow the Director of the
National Media Liaison Service (NMLS) to appear before a Senate
committee to give evidence about the activities of the NMLS on the ground that
that person was a member of ministerial staff. The Senate passed a resolution directing
that person to appear before the committee, and he subsequently appeared and
gave evidence accordingly (7/2/1995, J.2895-7). The preamble to the Senate’s
resolution pointed out that the NMLS was provided with public funds, and it was
stated in debate that the resolution did not set a precedent for summoning
ministerial staff, but the passage of the resolution indicates a view on the
part of the Senate at that time that such persons can be summoned in appropriate
circumstances. A report by the Finance and Public
Administration References Committee on the role and accountability of
ministerial staff recommended measures to increase their accountability (16/10/2003, J.2591, PP 266/2003).
In 1975 the
private secretary to the Prime Minister and the private secretary to the
Minister for Labour and Immigration appeared before the Senate Standing
Committee on Foreign Affairs and Defence in the course of its inquiry into the
contentious matter of South Vietnamese refugees.
In other
jurisdictions governments have resisted the appearance of ministerial staff and
advisers before legislative committees, but the legislatures and their
committees have asserted their right to summon such persons. (See the Fourth
Report of the Transport, Local Government and the Regions Committee of the United
Kingdom House of Commons, HC 655 2001-02; First Special Report of 2005-06 of
the United Kingdom House of Commons Select Committee on Public Administration,
HC 690 2005-06.) In the United
States various
administrations have claimed that it is not appropriate for presidential staff
and advisers to give evidence to congressional committees, but many such
persons have appeared, both voluntarily and under summons. A judgment of a
District Court in 2008 held that they have no immunity (Committee on the
Judiciary v Miers, 31/7/2008, not reported).
A ministerial
staff member appeared under summons before a committee of the New South Wales
Legislative Council (the Orange Grove inquiry) in August 2004, among others
attending voluntarily.
In June 2008 the
government issued a code of conduct for ministerial staff (J.656). The code
seeks to overcome problems with the lack of accountability of ministerial
staff, particularly by prescribing that such staff do not have executive
functions or the power to direct public servants.
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