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Chapter 17 - Witnesses
Witnesses
in custody
Standing order 180 applies to
witnesses who are in prison. It provides that a person in charge of the prison
may be ordered to bring the witness, in safe custody, to be examined. The
President may be ordered by the Senate to issue a warrant accordingly.
Use of this procedure would give rise to a difficulty if prisoners are
held in state or territory prisons, which, in the absence of any federal
prison, is invariably the case. As noted above and in Chapter 2, Parliamentary
Privilege, under Power to conduct inquiries, the Commonwealth Houses and their
committees do not, as a matter of comity between governments in a federal
system, and perhaps as a matter of law, exercise a power to summon state
office-holders, and this rule is extended to self-governing territories. The
Senate and its committees would not, therefore, issue an order to a state or
territory officer in charge of a prison, but would seek the co-operation of the
state or territory government. Prisoners, of course, are liable to be summoned
regardless of who has them in custody and regardless of whether they are
convicted of a state or territory or federal offence. If it appeared that a
state or territory government sought without justification to shield a prisoner
from a Senate inquiry, a summons to the prisoner could be issued and left at
the place of imprisonment, and the Senate could then test any refusal to
produce the prisoner, perhaps by means of a writ of habeas corpus.
There has been no occasion to use the procedure in the standing order,
but Senate committees have otherwise had access to witnesses in custody by
virtue of their general powers of inquiry. In 1989 the Standing Committee on
Environment, Recreation and the Arts met at the Brisbane Correctional Centre in
order to obtain evidence from two prisoners in relation to its inquiry into
drugs in sport. Although media representation was permitted at the hearing, the
public was excluded for security reasons and the meeting could not therefore be
regarded as a public hearing. The committee held a special private meeting at
which a transcript of evidence was taken, and subsequently published the
transcript, other than those parts containing in camera evidence. The
Parliamentary Joint Committee on the National Crime Authority in 1988 took evidence
from persons in custody in relation to its inquiry on witness protection.
Prisoners were brought to committee hearings at venues such as Commonwealth
Parliamentary Offices in State capitals, but the hearings were in camera.
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