The executive government and Senate committees
To a considerable extent, the effectiveness of Senate committee inquiries relies on the information and expertise provided by the executive government and its officials, that is, public servants. Senate committees regularly require the input of public servants when inquiring into current issues, into proposed legislation, and into estimates of government expenditure.
Government officials as witnesses
When appearing as witnesses, public servants have the same rights and responsibilities as other witnesses, but as servants of the executive government, some particular provisions apply. Paragraph (16) of Senate Privilege Resolution No. 1 places certain constraints on committees examining public servants, and the 1989 government guidelines for official witnesses before parliamentary committees should also be consulted.
The key point to note regarding government officials appearing before parliamentary committees is that committees cannot ask officials to give opinions on matters of policy. The advocacy and defence of government policies and administration is the preserve of ministers, not public servants. It is the role of public servants to provide full and accurate information to the Parliament about the factual and technical background to policies and their administration, in order to assist the committee’s understanding of the issues involved. Officials may, if the minister agrees, discuss policy options for dealing with a particular issue.
Where there is a difficulty in providing an answer to a committee, an official witness should state that there is a difficulty, indicate to the committee the nature of the difficulty, and seek to refer the matter to a superior officer or the minister. The official must be given reasonable opportunity to do this. It is ultimately the responsibility of the minister to resolve the issue. Only a minister can make the decision to decline to provide information to a committee, and therefore accept political responsibility for any subsequent dispute between the committee and the executive government.
Public interest immunity and claims of commercial confidentiality
The executive government and ministers are frequent subjects of attempts by the Senate to exercise its powers to require the giving of evidence and the production of documents. Ministers may seek to avoid attendance at committee hearings or avoid having to produce documents by claiming what was formerly known as crown privilege or executive privilege, and is now usually known as public interest immunity. This term refers to a claim of the executive government to be immune to the requirement to present certain documents or information to the courts or to the houses of Parliament. Grounds for claiming public interest immunity include, for example, that disclosure may be a threat to national security, or to individual privacy.
The Senate acknowledges that there is some information which ought not to be disclosed, and committees on occasion agree not to seek the information or documents. However, the existence of public interest immunity in respect of the Parliament can be determined only by the houses of Parliament themselves. The Senate has not conceded the existence of any conclusive public interest immunity in relation to its proceedings.
On 13 May 2009 the Senate passed an order setting out the process to be followed by public sector witnesses who believe that they have grounds for withholding information from Senate committees. In essence, the order requires that witnesses state recognised public interest grounds for withholding information and, at the request of a committee or any senator, refer the matter to the responsible minister, who is also required to state recognised public interest grounds for any claim to withhold the information. The order does not change the existing procedures of the Senate, but consolidates the formerly established, but not always followed, process, for the guidance of public sector witnesses in the future.
Claims that particular information held by government is commercial-in-confidence do not provide grounds for resisting disclosure of the information on the basis of public interest immunity. Such claims must be soundly based in order to justify overriding the right of Senate committees to call the executive to account.
A resolution of the Senate in 2003 declared that the Senate and its committees would not accept claims of commercial confidentiality unless made by a minister, accompanied by a ministerial statement of the basis for the claim, including a statement of the commercial harm which might result from the disclosure of information.
Parliamentarians as witnesses
Under the principle of comity, a house of Parliament does not seek to compel the attendance of members of another house (including members of state or territory parliaments). It is common, however, for members of the House of Representatives and members of state and territory parliaments, including ministers, to appear by invitation or by request before Senate committees, to assist with committee inquiries.
Ministerial staff and ex-parliamentarians as witnesses
The staff of ministers can be compelled to attend hearings of Senate committees. Their position as employees of ministers does not entitle them to any claims of immunity against being summoned to appear and give evidence. They have the same rights and responsibilities as any other non-parliamentary witness. Similarly, ex-parliamentarians including ex-ministers are not entitled to claims of immunity.