Chapter 17 - Witnesses
Public servants as
witnesses
Special rules are provided in Privilege Resolution 1(16) in relation to
public servants as witnesses. An officer of the Commonwealth or state public
service must not be asked to give opinions on matters of policy and must be
given reasonable opportunity to refer questions to a superior officer or to a
minister.
The rule relating to the giving of opinions on matters of policy is
designed to avoid public servants becoming involved in discussion or
disputation with committee members about the merits of government policy as
determined by ministers. Public servants may explain government policy,
describe how it differs from alternative policies, and provide information on
the process by which a particular policy was selected, but may not be asked to
express opinions on the relative merits of alternative policies.
The rule concerning reasonable opportunity to refer questions to a
superior officer or to a minister is designed to ensure that an officer is not
required to answer a question where all the necessary information may not be
available to the officer, and that, if there is any difficulty in answering a
question, the difficulty is referred to a superior officer, and, if necessary,
ultimately to a minister, for resolution. It is not the role of a public
service witness to refuse to provide information to a committee. If there is
some difficulty in providing information the officer states that there is a
difficulty and indicates its nature to the committee, and asks that a superior
officer or a minister consider the matter. If a superior officer considers that
the information should not be supplied, the matter is referred to the minister.
A decision to decline to provide information to a committee is thereby made
only at ministerial level by the office-holder who can accept political
responsibility for any dispute between a committee and the executive
government.
In adopting a
report by the Privileges Committee in 1993 the Senate resolved that public
servants should receive training in accountability to Parliament (42nd
report, PP 85/1993, 21/10/1993, J.684; resolution reaffirmed, with requirement
that departments report on compliance, 1/12/1998, J.225-6; see also 64th
and 73rd reports, PP 40/1997, 118/1998).
In 1999 the Senate
endorsed the Procedure Committee’s condemnation of public service witnesses giving
evidence on legislation bringing with them private persons in support of the
legislation (29/4/1999, J.815). The committee considered that such a practice
violated a committee’s right to select witnesses. There was also concern
arising from the payment of the private witnesses’ expenses (see above, under
Protection of witnesses).
The government issues a document, entitled ‘Guidelines for
official witnesses appearing before parliamentary committees’, which sets out
practices and principles to be followed by public service witnesses (for text
of guidelines, see SD, 30/11/1989, pp 3693-3702). The guidelines are based on
the principle that public servants have a duty to assist parliamentary
inquiries, and are generally consistent with the rules laid down by the Senate,
but have no status in proceedings of Senate committees other than as persuasive
principles. (See Supplement)
For claims by the executive government to public interest immunity from
giving evidence to committees, see Chapter 19, Relations with the Executive
Government, under that heading.
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