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Chapter 17 - Witnesses
Inquiries and
witnesses
In order that this information-gathering process may be effective, the
Senate has the power to require persons to attend and give evidence and to
produce documents, and may punish any default as a contempt of Parliament,
although, as is noted below, these powers are in practice seldom used. (See
also Chapter 2, Parliamentary Privilege, particularly under Power to conduct
inquiries.)
The necessity of
the inquiry function and of the power to
compel evidence and documents as an essential attribute of the legislative
power was well expressed by the United States Supreme Court in 1927:
A legislative body cannot legislate
wisely or effectively in the absence of information respecting the conditions
which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information — which not infrequently is
true —
recourse must be had to others who do possess it. Experience has taught that
mere requests for such information often are unavailing, and also that
information which is volunteered is not always accurate or complete; so some
means of compulsion are essential to obtain what is needed. (McGrain v
Daugherty 1927 273 US 135 at 174-5)
Inquiries are normally
conducted through the medium of Senate committees, which are appointed by the
Senate and are given the task to inquire into particular matters on behalf of
the Senate and report to the Senate on those matters (see Chapter 16,
Committees). The Senate may, however, conduct inquiries and hear evidence
directly, and has occasionally done so by requiring witnesses to appear before
the Senate. The considerations applying in relation to witnesses apply equally
to witnesses before the Senate and witnesses before committees, and are
therefore analysed in this chapter.
In practice, the
power to compel the attendance of witnesses and the production of documents is
normally not used in the conduct of inquiries. Senate inquiries proceed on a
voluntary basis, with witnesses invited to make submissions, to produce other
documents and to appear and give oral evidence. Witnesses are normally very
willing to place their views and the information they possess before the Senate
to assist in an understanding of issues and in the framing of legislation. On rare occasions,
however, witnesses are summoned to give evidence and required to produce
documents where the Senate or its committees believe that the proper conduct of
inquiries entails the exercise of those inquiry powers. Some witnesses ask to
be summoned in the mistaken belief that this gives them greater legal
protection (see under Protection of Witnesses, below), and committees accede to
such requests.
The Senate may
order particular witnesses to appear before committees and give evidence. For
precedents, see 7/2/1995, J.2895-7; 6/6/1995, J.3364-5; 22/10/1997, J.2673; 21/10/1999, J.1966; 10/4/2000, J.2582-3, 2585; 28/11/2000, J.3594-5; 19/6/2001, J.4322; 12/3/2002, J.154-6; 25/11/2003, J.2709-10. In all cases the orders were complied with (witnesses duly appeared, or,
in one case, required documents were produced). They were all public
office-holders; this procedure has not been used in respect of private
citizens. (See Supplement)
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