Reservation by Labor Senators
Refusal to answer a question
1. At the hearing on 17
February 2005, during questions relating to the Iraq Survey Group,
an officer of the Department of Foreign Affairs and Trade indicated that he had
made a communication by telephone with the office of the Minister for Foreign
Affairs. Subsequently, the officer declined to answer further questions to
confirm the mode of the communication. It is emphasised that the questions went
only to the mode of communication, not to the content of the communication.
2. The officer did not give any reason for declining to answer
those questions. The minister representing the Minister for Foreign Affairs,
Senator Hill, supported the officer in his refusal to answer the questions, on
the basis that, if the officer felt uncomfortable about answering the
questions, he should not be required to answer them. Senator Hill also did not
give any reason for a refusal to answer the questions, apart from speculating
that the reason might be "the privacy of communications between the
officer and his minister".[5]
3. Over many years, going
back to 1971, the Senate has passed, and reiterated, resolutions to the effect
that officers do not have a discretion to decline to answer questions.[6] On 16 July 1975 the Senate resolved that it is for the
Senate to determine any claim by the executive government to be excused from
answering questions or producing any documents on specified grounds.[7]
4. On 22 November 1999 the
Senate resolved, by adopting a report of the Procedure Committee, that all
questions going to the operations of departments are relevant questions for the
purposes of estimates hearings.[8]
Privilege Resolution No. 1 of the Senate, in paragraph (10), provides
that, if a witness declines to answer a question, the witness should state the
ground of the objection to the question so that the committee can consider the
objection. Particularly at estimates hearings, ministers are expected to take
responsibility for decisions about whether questions to ministers or officers
are to be answered, and to state grounds for any ministerial refusal to answer
a question.
5. It is expected that a
refusal by a minister to have a question answered will be taken on a claim for
public interest immunity, that is, that it would be contrary to the public
interest to answer a particular question on specified grounds. This expectation
is reflected in the resolution of the Senate of 30 October
2003, which provides
that a claim to withhold information from the Senate or a committee on the
ground of commercial confidentiality must be made by a minister and be
accompanied by a statement setting out the basis for the claim.[9]
1.
It would be highly detrimental to the proceedings of
the Senate and its committees if ministers were to fall into the habit of
refusing to answer questions without stating any public interest grounds for
such a refusal. It is equally undesirable that ministers should advance grounds
unrelated to the public interest, such as that an officer feels uncomfortable
with a question. It is perfectly reasonable for a minister to consider a
question and subsequently report to the committee where the minister wishes to
advance any claim for public interest immunity in relation to the question. It
should not be acceptable for a minister simply to refuse to answer a question
without advancing any public interest ground for such a claim.
7. It is therefore recommended that the Senate reiterate the
following principles in relation to proceedings of its committees:
- ministers
and officers do not have a discretion to decline to answer relevant questions;
- any
refusal to answer a relevant question should be made by a minister on the
basis of a properly advanced claim of public interest immunity based on
specified grounds; and
- it is
for the committee in the first instance and the Senate ultimately to
consider whether a properly advanced claim of public interest immunity is
to be sustained.
Senator Steve Hutchins
Senator Sue Mackay