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Chapter 17 - Witnesses

(b)    procedural protection

The Senate has adopted a number of procedures for the protection of its witnesses. These procedural measures for the protection of witnesses are mainly contained in Privilege Resolution 1, which is shown in full in appendix 2. This resolution provides rules which all Senate committees are obliged to observe in their dealings with witnesses. If the Senate were to conduct an inquiry directly, with witnesses appearing before the Senate, the Senate would also follow these rules so far as they were applicable.

The principal procedural rules contained in Resolution 1 are as follows:

• Witnesses are normally invited to appear, and are summoned (ie, formally ordered to appear) only where a committee makes a deliberate decision that the circumstances warrant the issue of a summons.

• Similarly, a formal order for the production of documents is made only if a committee makes a deliberate decision that such an order is warranted.

• Witnesses are given reasonable notice of a meeting at which they are to appear, and are supplied with a copy of the committee’s terms of reference, a statement of the matters to be dealt with during the witness’s appearance, a copy of Resolution 1 and a copy of any relevant evidence already taken.

• Witnesses are given an opportunity to make a submission in writing before appearing to given oral evidence.

• Witnesses are offered the opportunity to give their evidence in private session (in camera), and any application to do so must be considered by a committee.

• Witnesses are to be informed whether any evidence given in camera is to be published.

• Committees are enjoined to ask only relevant questions necessary for their inquiries.

• Witnesses may object to answering any questions on any grounds, and committees must consider and determine any objections by a witness.

• Persons must be given reasonable opportunity to respond to any evidence adversely reflecting on them.

• Where appropriate witnesses may be accompanied by, and may consult, an adviser.

• Committees are required to investigate, and report to the Senate on any evidence that a witness may have been interfered with or penalised in respect of their evidence.

Special procedural protections are provided for witnesses involved in investigations by the Privileges Committee into allegations of contempt of the Senate (Resolution 2; see Chapter 2, Parliamentary Privilege, under Proceedings before the Privileges Committee). The reason for this is that the Privileges Committee investigates in particular cases whether contempts have been committed. If a finding of contempt is adopted by the Senate, the consequences for the person or persons concerned are very serious. A finding of contempt may in itself damage a person’s reputation or professional standing, and it is open to the Senate to impose a penalty of up to 6 months’ imprisonment or a fine of up to $5 000 for a natural person and $25 000 for a corporation. Witnesses before the Privileges Committee are therefore given all the rights of persons involved in legal proceedings, and additional rights not available to such persons.

It is in practice rare for a committee to order the attendance of a witness because it is rare for anyone to refuse a committee’s invitation to give evidence. A summons may be issued whether or not an invitation has been issued. This is necessary because an obligation to invite in every instance could conceivably result in an essential but reluctant witness refusing an invitation and then becoming incommunicado. In such a situation a summons might not be capable of effective delivery and a failure to answer it may not therefore be justly punished. Where this is anticipated a committee may issue a summons in the first instance. These principles also apply where a committee wishes to order the production of documents.

Before a witness is invited to attend before a committee to give oral evidence they must be given a reasonable opportunity to make a written submission (Resolution 1(4)). This does not mean that no witness may appear unless they have made a submission. The rule is to ensure that witnesses have an opportunity to make a considered written statement about the matters before a committee. Witnesses often appear, at the committee’s invitation, without first submitting a document. This can occur, for example, when time is short. A witness ordered to attend, however, must be given reasonable opportunity to formulate a written submission before an order to attend would be enforced by the Senate.

Where a witness has supplied documents to a committee, whether in response to an invitation or a summons, reasonable access must be given to the witness to consult those documents (Resolution 1(6)). Documents received by legislative and general purpose standing committees remain in the custody of the Senate after the completion of an inquiry (SO 25(15)). An original submission received from a submitter will not be returned, although where necessary a copy may be provided to them. Where a committee insists on examining original documentary evidence in relation to a matter and receives and accepts this material in response to its invitation or order, the documents may not be returned to the sender without an order of the Senate to that effect (precedent: 16/5/1990, J.90-1). This circumstance in which original documents are required seldom arises. Photocopies of relevant documents are normally adequate for most committee purposes.

A witness must be given reasonable notice of the meeting at which they are to appear (Resolution 1(3)). Every effort is made by committees to give such reasonable notice. However, there are occasions when a committee will seek the cooperation and tolerance of witnesses given very late notice of a hearing at which their evidence would be helpful. For example, when bills have been referred to committees for inquiry and report within extremely short times, witnesses may receive no more than 72 or even 48 hours notice. In many cases, the witnesses concerned are keen to ensure that the committee is made aware of their views and hears their evidence and committees are appreciative of their cooperation in making themselves available.

A witness has a right to certain information and documents about a committee. This information usually accompanies the committee’s invitation to attend. A witness must receive a copy of the committee’s terms of reference, a statement of the particular matters expected to be dealt with during the appearance of the witness and a copy of Resolution 1. Where appropriate a witness is provided with a transcript of relevant evidence already taken. There is a committee discretion here: not every witness receives as a matter of course every transcript. The requirement is designed to ensure fairness to a witness whose proposed evidence may be affected by, or has already been referred to during, an earlier committee hearing.

Evidence which reflects adversely on another person, including a person who is not a witness, must be made known to that person and reasonable opportunity to respond given. The committee must consider whether to hear the evidence, publish it, and seek a response to it from another person. These rules, in Resolution 1(11) to (13), do not define the meaning of evidence which reflects adversely on another person. However, certain general principles of interpretation apply.

Evidence given to a committee encompasses written statements or submissions accepted by the committee as well as oral presentations at hearings. The rules do not apply to evidence merely on the basis that it is contrary to other evidence. For the purposes of its inquiry, a committee will seek as many considered views on the subject matter as is reasonably possible. In many cases, the views offered will, and should, differ, contradicting each other and criticising the rationality, accuracy or acceptability of alternative or competing opinions. Thus, evidence adverse to another witness’s case does not fall within the application of the rules. The rules deal with adverse “reflections”, that is, evidence which reflects adversely “on a person” (including an organisation) rather than on the merits or reliability of an argument or opinion. To bring the rules into operation, a reflection on a person must be reasonably serious, for example, of a kind which would, in other circumstances, usually be successfully pursued in an action for defamation. Generally, a reflection of poor performance (for example, that relevant matters have been overlooked) is not likely to be viewed as adverse. On the other hand, a statement that a professional person lacks the ability to understand an important conceptual or practical aspect of their profession and, therefore, is not a reliable witness, would be regarded as an adverse reflection. Reflections involving allegations of incompetence, negligence, corruption, deception or prejudice, rather than lesser forms of oversight or inability which are the subject of criticism in general terms, are regarded as adverse reflections. Mere disagreement with another person’s views, methodology or premises is not considered as an adverse reflection.

If during a public hearing a committee believes it is about to hear evidence which “may reflect adversely on a person”, the committee must consider whether it would be more appropriate to hear that evidence in private session. On so resolving, the committee meets in camera and the transcript of evidence then taken must not be published except in accordance with procedures for the disclosure of in camera evidence (see below). In some circumstances, a committee might realise that evidence adverse to a person is about to be given and that it is likely to be irrelevant to the inquiry. In this case the committee may direct the witness to say no more. In most cases, however, a committee does not know in advance that an adverse reflection will be made in oral evidence and a problematic statement may be made by a witness, the acceptability of which the committee must determine. In such cases, the committee must initially decide whether the statement is an adverse reflection. If it is considered to be such, the committee must then decide whether it amounts to relevant evidence for the purpose of the inquiry. If it is so considered, the committee may continue to hear it in public because of its potential significance to the inquiry, or may decide to proceed in camera.

If the committee considers some evidence to be an adverse reflection and irrelevant to the inquiry, the committee must consider whether it would be proper to expunge that evidence from the transcript of evidence and to forbid the publication of it by anyone including, for example, members of the public or media at the hearing.

Committees are very reluctant to expunge any material from transcripts of evidence. Expungement results in the public record of proceedings not being a complete and accurate record. In considering expungement a committee must balance the need to protect persons from unnecessary or irrelevant defamatory evidence, perhaps by witnesses intent on misusing the privileged environment of a committee, against the need to maintain an accurate record of its proceedings and evidence. A committee may properly conclude that irrelevant adverse reflections by a witness about others should remain on the record where this provides an insight into the witness’s credibility and responsibility.

In relation to written evidence, if it is not relevant to a committee’s inquiry, the committee may determine that the evidence is to be treated as not received and returned to the submittor, or retained but not considered by the committee. If either of those courses is followed, there is no occasion for the application of the adverse reflections rule.

If evidence contains allegations of criminal conduct, and those allegations could be investigated, or contains matter relevant to a criminal investigation in progress, the committee may invite the submittor to provide the evidence to the police or other investigating authority. If the evidence contains matter relevant to a criminal trial or a civil action in progress, the submittor may be invited to have the evidence put before the courts. In these circumstances, the adverse reflections procedures need not be followed. In making such decisions a committee should have regard to the nature of its inquiry and to the risk of creating more material which is unexaminable in court proceedings because of parliamentary privilege and which may thereby cause difficulties in those proceedings (see Chapter 16, Committees, under Privilege of proceedings). It is preferable for the evidence concerned not to be published.

The fact that a person against whom adverse evidence is given is notorious, or has had ample opportunity to respond to allegations through public controversy, does not affect the application of the right-of-reply procedure (see, for example, report of the Legal and Constitutional Legislation Committee on additional estimates 2004-05, PP 64/2005, p. 165).

Where evidence is given which reflects adversely on a person and which is relevant to an inquiry, the committee must provide the person reflected on with a reasonable opportunity to have access to that evidence and to respond to it in writing and by appearing before the committee. In practice, access to the evidence means obtaining a copy of the relevant submission or hearing transcript. In the case of in camera evidence the committee will disclose only the adverse reflection and such other contextual evidence as it considers to be reasonably necessary to enable the person to respond.

While the person reflected on has a right to be notified of the evidence and to make a written response, they have no automatic right of audience before the committee on the matter. The committee must provide a “reasonable opportunity” for the person to write and appear. “Reasonable opportunity” means that the person must have a proper and timely opportunity to consider the matter and respond to it. The circumstances of the inquiry, including the nature and seriousness of the reflection, its significance to the inquiry, the other demands on committee members’ time, the ability of the committee or a subcommittee to meet the person, and the person’s resources and ability to travel to Canberra or elsewhere, must all be considered in deciding what would amount to a “reasonable opportunity”. In the first instance what is a reasonable opportunity is a matter for the committee to determine. It would, however, be a matter for the Senate to consider if an aggrieved person contended that a reasonable opportunity to respond in person to an adverse reflection had not been afforded and that, therefore, the order of the Senate had not been complied with by the committee. A written response is now regarded as affording a reasonable opportunity to respond in most cases, even where an oral hearing is requested.

If the adverse reflections are on a group of persons, for example, on a company, whether relevant persons are invited to make a response will be a matter of judgment. For example, if it is an existing company the principals of the company may be invited to make a response, but if it is an obscure company no longer registered such an invitation need not be issued.

In the interests of fairness, the process of informing a person of an adverse reflection should not be delayed but should proceed as soon as possible, to enable the person concerned to respond as soon as possible.

The fact that evidence contains adverse reflections is not, of itself, a reason for not publishing the evidence in the usual way. However, immediately prior to releasing unpublished evidence, for example, a submission containing an adverse reflection, the person reflected on should be notified that the evidence is to be published and advised of their rights under the Privilege Resolutions.

It would not be viewed as fair practice for a committee not to publish a person’s response to an adverse reflection, if the person requests it, at least to the same degree as the adverse reflection was published.

If a response goes beyond responding to the original evidence and contains new and irrelevant adverse reflections on persons, the committee has the option of not accepting the response and directing that it be reframed so as to confine it to a relevant response to the original evidence. If a response is accepted and contains new adverse reflections on persons other than the person who provided the original evidence, it should be treated as new evidence. If multiple exchanges of adverse reflections, in responses to responses, ensue or appear likely, the committee at any time may indicate to the parties that the subject is closed and that the committee will not receive any further responses.

Responses by persons to evidence adversely reflecting on them may be presented to the Senate where the committee concerned has concluded the relevant inquiry (by the President: 25/11/1993, J.895; by report of the committee: Standing Committee on Rural and Regional Affairs, report on a matter arising from the committee’s consideration of the Plant Breeder’s Rights Bill 1994, 2 June 1994, PP 183/1994; see also document tabled by that committee, 9/2/1995, J.2927; by the former chair of a select committee: 9/5/1996, J.138). In 1999 the Community Affairs References Committee presented to the Senate responses by witnesses to a document which, although prepared as a result of a recommendation by the committee, had not been published by the committee (29/4/1999, J.814).

Privilege Resolution No. 1 provides in paragraph (13) a right of witnesses to respond to adverse references to them in evidence. Although this could be interpreted as allowing responses only to remarks by other witnesses, it has been taken to refer to any remarks made at a committee hearing (9/8/2001, J.4642).

Any proposal to take evidence in private session is always considered carefully by a committee. In camera hearings defeat the purpose of parliamentary inquiries of informing the public. The other main purpose of gathering evidence is that the evidence may be used to support conclusions and recommendations, and may be seen by the public to support those conclusions and recommendations. The vast majority of hearings of evidence by committees are therefore in public. When they occur in Parliament House they are all sound broadcast and many are also televised. In camera hearings, however, are occasionally used as a means of protecting witnesses and their interests which may be harmed by disclosure of information.

A witness must be informed of, and be offered, the opportunity to apply at any time for their evidence to be heard in camera. The witness will be asked for reasons, the statement of which may itself be heard by the committee in public or in private. The committee then must consider the application. It may do so either in public or in private, in the presence of the witness or in their absence, as the committee considers appropriate. Where the application to proceed in camera is refused, the committee must notify the witness of its reasons. As a matter of practice and interpretation, while an immediate explanation may be given orally to the witness by the chair, a written statement repeating or elaborating on them must be supplied to the witness within a reasonable time to comply with the requirement of notification (Resolution 1(7)).

The grounds on which a witness may ask to be heard in camera include the grounds on which objection may be taken to a question (see below).

There is no obligation on a committee to publish the fact that a witness has applied for their evidence to be received or heard in camera or to publish the reasons for the application or the committee’s reasons for its decision. Where an application is made during the course of a public hearing, the fact, the reasons and the outcome may be on the public record. Where an application is made in writing for a written submission or oral evidence to be received or heard in camera, the matter may not come to light. Public disclosure that a witness desired their evidence to be treated in secret could be prejudicial to the witness. As a matter of principle the same approach is adopted for this question and its determination as is applied to the question whether the substantive evidence should be received or heard in camera.

Before giving evidence in camera, a witness must also be informed that the committee, and the Senate itself, have the power subsequently to publish the evidence if they so decide. The witness must also be informed whether in fact the committee intends to publish all or any of the in camera evidence (Resolution 1(8)). This second requirement can present a committee with a dilemma, as it may be difficult to assess at that stage the overall value for the inquiry and the report of the particular evidence. In practice, the rule is interpreted to mean that a witness must be informed of the committee’s intention where this has been decided, or that no decision has been made. The purpose of the rule is to ensure that the witness is as fully informed of the committee’s intentions as possible. (For the publication of in camera evidence, see below.)

Apart from taking evidence in camera, committees may take other precautions to protect witnesses; for example, their identity may be concealed by not including their names in transcripts of evidence and in reports (see Economics References Committee, inquiry into operations of the Australian Taxation Office, published transcripts of in camera evidence, report PP 37/2000).

The provisions whereby a committee must consider and determine any objection by a witness to answering any question (Resolution 1(10)) is seldom in practice formally invoked. If witnesses have some difficulty in answering a question, they usually indicate that difficulty and the committee does not press the question or seeks the desired information by an alternative form of questioning. Where a witness raises a formal objection to answering a question, it is normal for the committee, having followed the procedures set out in the resolution, to adopt the same methods of overcoming the objection. It is for a committee to decide whether a particular objection will be sustained and whether a question will be pressed. Where a committee considers that the answer to the question is essential for the purposes of its inquiry, or that the objection to answering the question is not well founded, the committee insists on an answer to the question, and reports any refusal to answer to the Senate.

Grounds on which a witness may object to answering a question include:

• The question is not relevant to the committee’s inquiry. It is for the chair of the committee in the first instance and the committee ultimately to determine whether a question is relevant (Resolution 1(9)).

• Answering the question may incriminate a witness. As has been noted, witnesses are completely protected against any use of their evidence against them in any legal proceedings. An answer to a question may, however, incriminate a witness in the non-technical sense that it may make publicly known offences or improprieties committed by the witness, which may affect the witness’s dealings with others, or may lead to investigations of the witness by other agencies (other than by making direct use of the witness’s evidence).

• The information required by a question is otherwise protected from disclosure, and the committee ought not to disclose it. Committees are not bound to observe prohibitions on disclosure of information which operate elsewhere (see Chapter 2, Parliamentary Privilege, under Parliamentary privilege and statutory secrets provisions), but a committee may consider that the fact that information is protected from disclosure elsewhere should persuade the committee not to disclose the information in its public hearings.

• The disclosure of information required by a question would be prejudicial to the privacy or the rights of other persons, particularly parties in legal proceedings.

In some cases the difficulty a witness has in answering questions may be overcome by hearing the answers in camera (see above).

For the grounds on which the executive government may seek to withhold information from a parliamentary inquiry see Chapter 19, Relations with the Executive Government, under Public interest immunity.

Witnesses do not normally apply to be accompanied by counsel, and a committee would not normally grant such an application unless its inquiry involved contentious and complex matters in relation to which a witness might seriously prejudice their interests by ill-advised or hasty answers. Such inquiries are rare. The Privileges Committee, however, is required to extend to witnesses the right to be represented by counsel (Resolution 2).

Witnesses are not paid fees, but committees normally meet the travel costs and other reasonable expenses of witnesses other than public officials. In 1999 the Senate, adopting a report of the Procedure Committee, resolved that committees should be informed of any payment of witnesses’ expenses by others, the rationale being that a committee may need to assess whether evidence is influenced by such payment (29/4/1999, J.815).

In carrying out the requirement in Resolution 1(18) to investigate possible interferences with witnesses, committees may take their investigations as far as they consider necessary, and may resolve such matters themselves or recommend to the Senate that they be referred to the Privileges Committee (for an example see report by the Environment, Communications, Information Technology and the Arts Committee on two privilege matters, PP 176/2007).

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