Chapter 17 - Witnesses
Publication of in camera evidence
As has been noted
above, it is open to a committee and to the Senate to publish evidence which
has been taken in camera. (See also Chapter 16, Committees, under Disclosure of
evidence and documents.)
Normally such
evidence is not published by either the committee or the Senate. Evidence is
usually taken in camera only when a committee has made a deliberate decision
that it is appropriate to do so for the protection of a witness. It may
subsequently be decided, however, that the appropriate protection of a witness
does not require that the evidence be kept confidential. As has also been noted
above, witnesses are completely protected against any use of their evidence
against them in subsequent proceedings in a court or tribunal, and against
penalty or injury in consequence of their evidence. A committee may decide that
this protection is sufficient to ensure that a witness is unharmed by the
publication of their evidence. If evidence has been taken in camera to protect
a witness against extra-legal difficulties, however, that decision is normally
sustained by the committee and the Senate subsequently.
Standing order 37(3) provides for
the disclosure by the President of unpublished evidence and
documents which have been in
the custody of the Senate for 10 years, and in camera evidence and
documents which have been in the custody of the Senate for 30 years. This
provides for access to material for the purposes of historical research.
In 1991 the Senate,
with the advice of
the Procedure
Committee, gave consideration to the question of whether senators who added a
dissenting report to a report of a
committee may refer to evidence taken in camera by the committee. This question
involved competing considerations. It is desirable that in camera evidence not
be disclosed except by a deliberate decision by a committee, but there is a
possibility of a majority of a committee suppressing evidence which is
essential for a senator to make out the senator’s case in a dissenting report.
As noted above, the purpose of gathering evidence is to support conclusions and
recommendations, and this applies equally to a dissent. The Senate therefore adopted
a resolution which requires that a committee and any dissenting senator seek to
reach agreement on the disclosure of any relevant in camera evidence, but
provides a residual ability of a dissenting senator to use in camera evidence
for making out a dissent. The relevant provisions are now contained in standing
order 37 (2):
A senator who
wishes to refer to in camera evidence or unpublished committee documents in a
dissenting report shall advise the committee of the evidence or documents
concerned, and all reasonable effort shall be made by the committee to reach
agreement on the disclosure of the evidence or documents for that purpose. If
agreement is not reached, the senator may refer to the in camera evidence or
unpublished documents in the dissent only to the extent necessary to support
the reasoning of the dissent. Witnesses who gave the evidence or provided the
documents in question shall, if practicable, be informed in advance of the
proposed disclosure of the evidence or documents and shall be given reasonable
opportunity to object to the disclosure and to ask that particular parts of the
evidence or documents not be disclosed. The committee shall give careful
consideration to any objection by a witness before making its decision.
Consideration shall be given to disclosing the evidence or documents in such a
way as to conceal the identity of persons who gave the evidence or provided the
documents or who are referred to in the evidence or documents.
The publication of
evidence taken in camera except by the authorisation of
the Senate or a committee is declared to be a contempt punishable by the Senate
(Privilege Resolution 6(16)). Such publication may also be prosecuted as a
criminal offence under section 13 of the Parliamentary Privileges Act 1987.
These provisions reinforce the protection of witnesses by the taking of
evidence in camera.
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