Appendix 6
![Australian Senate - Clerk of the Senate](e06_1.gif)
cladvsenrc_18081
24
May 2012
Senator
the Hon Richard Colbeck
Suite
S1 47
The
Senate
Parliament
House
Canberra
ACT 2600
Dear
Senator Colbeck
Possible false or misleading evidence given to the Rural and
Regional Affairs and Transport Legislation Committee
You have asked for advice on options available to you
under the procedures of the Senate to deal with a possible case of misleading
evidence given to the Rural and Regional Affairs and Transport Legislation
Committee on 23 May 2012 in relation to expenditure under the Government’s $20
million Tasmanian Exporters Assistance package.
Privilege Resolution 6 sets out matters which the Senate
may treat as contempts. These include the giving of false or misleading
evidence to a committee. Paragraph (12)(c) of the resolution provides that a
witness before the Senate or a committee shall not give any evidence which the
witness knows to be false or misleading in a material particular, or which the
witness does not believe on reasonable grounds to be true or substantially true
in every material particular.
The Senate Committee of Privileges has investigated
numerous allegations of possible false or misleading evidence before committees
although it has not found a contempt in any of those cases. It has, however,
been highly critical of the lack of knowledge by public servants of their
obligations and responsibilities to the parliament and was instrumental in
having this recognised as a training priority for senior officers. An essential
element of a finding of contempt is that there should be evidence of an
intention to mislead a committee. In several cases, the Privileges Committee
found that the effect of certain evidence was to mislead the committee
concerned, but that the witness did not intend to do so. In these
circumstances, no contempt was found.
In your comments to the Rural and Regional Affairs and
Transport Legislation Committee this morning, you indicated that you did not
think this was a case of officers intentionally misleading the committee, but
that events outside the committee overtook the evidence that was given,
suggesting a political dimension to the situation.
Senate committees are entitled to expect that the
evidence given to them will be comprehensive and accurate and that ministers
will take responsibility for ensuring that their officers are fully prepared in
order to assist committees. Given that the evidence provided by officers to the
committee yesterday does not accord with announcements that appeared in today's
press, and witnesses are expected to provide committees with any corrections to
their evidence as soon as practicable, the committee could reasonably expect to
be provided with a further explanation. In the meantime, however, it would be
advisable for the committee to seek an explanation for the discrepancy, both
from the departmental officers and from the minister at the table who I
understand was Senator Kim Carr, representing the Minister for Infrastructure
and Transport, Mr Albanese.
Having received the explanations, the committee should
then consider whether it wishes to raise as a matter of privilege a possible
case of misleading evidence. A decision by the committee not to proceed in
raising a matter of privilege does not prevent you as an individual senator
doing so and I can provide further advice on this matter if you so wish.
It would be appropriate for the committee to include an
account of this matter in its report on the estimates and you may wish to
comment on the matter in a motion to take note of the committee's report on its
presentation to the Senate (a motion for which leave would be required). Alternatively,
you may wish to speak to the second reading of the appropriation bills and
indicate your concerns using that opportunity.
There are numerous other procedures of the Senate that
are available to you to either obtain further information about this matter or
to voice your concerns about it. These include:
- following up immediately with questions on notice
through the estimates process;
- asking a question without notice in relation to the
minister's role in the events (and following this up with commentary in debate
on a motion to take note of the answer);
- lodging questions on notice in the Senate (which, if
they remained unanswered for more than 30 days after they were asked, would
give you earlier access to the provisions under standing order 74 for raising
these matters in the chamber than your estimates questions on notice — because
the clock does not start ticking on these until 30 days after the date set by
the committee for submission of answers);
- raising the matter in debate on relevant document,
committee report or Auditor-General's report;
- speaking to a matter of public importance under standing
order 75 on a topic relating to government performance and integrity;
- raising the matter in matters of public interest
(Wednesdays from 12.45 pm) or an adjournment debate;
- framing a motion expressing your views on the management
of the process and the arrangements for the announcements of particular
expenditures under the fund.
There may also be scope for an order for production of
documents if any likely documents can be identified.
If it appears that there is insufficient evidence to
support an allegation of deliberate misleading of the committee by the
witnesses at the table, there remains the issue of serious discourtesy by the
responsible minister to the estimates process, which can be raised using any of
the above procedures.
Please let me know if I can provide any further
assistance in relation to this matter.
Yours sincerely
Rosemary
Laing
Clerk of the Senate
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