Chapter 17 - Witnesses
(a) legal
protection
Under the Parliamentary
Privileges Act 1987, the giving of evidence and the production of documents
by a witness has the same legal status as a senator’s participation in Senate
proceedings, and therefore attracts the very wide protection which is given to
proceedings in Parliament against prosecution, suit, examination or question
before any court or tribunal (see Chapter 2, Parliamentary Privilege). The
action of a witness in giving evidence and producing documents and the evidence
given therefore cannot be used against the witness in any sense in subsequent
proceedings before a court or tribunal.
It must be emphasised
that a person is protected in the act of submitting a document to the Senate or
a committee even if they do not accept the document. The act of submitting the
document also cannot be used as evidence against the person in any action
relating to the composition or acquisition of the document. If the document is
composed or acquired for the purpose of submission to the Senate or a
committee, the composition or acquisition of the document is also protected.
Witnesses occasionally submit statutory declarations to committees,
apparently to add credibility to their statements. If such a declaration is
prepared for the purpose of submission to a committee, however, making it is an
empty gesture; because of parliamentary privilege no prosecution for a false declaration,
under the laws relating to such declarations, can proceed. Committees deal with
such declarations as normal submissions.
Standing order 181 declares that
“A witness examined before the Senate or a committee is entitled to the protection
of the Senate in respect of the evidence of the witness.”. This is a
declaration by the Senate that it will use its powers to protect witnesses
against any adverse consequences arising from their giving evidence. The Privilege
Resolutions of the Senate of 25 February 1988 (see also Chapter 2, Parliamentary
Privilege) declare that any interference with a witness and
the infliction of any penalty on a witness in consequence of their giving
evidence may be treated as a contempt (Resolution 6, paragraphs (10) and (11)).
In 1984, after apparent threats to a witness engaged in a particular inquiry,
the Senate had occasion to issue a reminder that interference with witnesses
could be dealt with as a contempt. The following resolution was passed:
That the Senate —
-
reaffirms the
long-established principle that it is a serious contempt for any person to
attempt to deter or hinder any witness from giving evidence before the Senate
or a Senate Committee, or to improperly influence a witness in respect of such
evidence; and
-
warns all persons against
taking any action which might amount to attempting to improperly influence a
witness in respect of such evidence. (13 September 1984
J.1129)
Committees have also issued general warnings against interference with
witnesses. In April 2005 the Finance and Public Administration References
Committee placed advertisements in local newspapers containing such warnings.
The Senate and its Privileges Committee have always taken very
seriously, and investigated thoroughly, any suggestion that witnesses have been
interfered with in any way in respect of their evidence, and in several cases
persons have been adjudged guilty of contempt for that offence; usually
remedial action by the offenders has avoided the imposition of penalties (for
particular cases, see Chapter 2, Parliamentary Privilege, under Matters
constituting contempts, and Appendix 3).
Interference with witnesses may also be prosecuted as a criminal
offence under section 12 of the Parliamentary Privileges Act 1987.
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