Senator the Hon John Faulkner, Special Minister of State and Cabinet Secretary, has described Senate Estimates Committees as the “best accountability mechanism of any Australian Parliament” (Senate Hansard, 13 May 2004, p. 23209). It is difficult to take issue with the Senator’s sentiment.
The real issue for public servants who appear before Senate Estimates or other Parliamentary Committees, and the many more who prepare briefs for those who do appear, is how to best discharge their duties within the matrix of Parliamentary Committees processes. What follows is a high level survey of those processes.
Power to conduct inquiries
The powers of the Australian Parliament to conduct inquiries can be traced right back to England’s Bill of Rights of 1689. That power was enshrined in section 49 of our Constitution, which adopted all the powers, privileges, and immunities of the UK Parliament.
Both Houses of our Parliament clearly have the power to require people to attend, to give evidence, and to produce documents. That power supports the function of the Parliament of inquiring into matters of concern, before debating and legislating in respect of them. Both Houses may compel the attendance of witnesses, the answering of questions, and the production of documents using the power to punish disobedience – although, thankfully, that power is rarely used.
In practice, inquiries are usually conducted by Committees exercising delegated power of either the Senate or the House of Representatives. Inquiries normally proceed on a voluntary basis, with witnesses invited to make submissions, to produce other documents, and to appear and give oral evidence. The Senate will only compel a witness to appear or produce documents where the circumstances warrant such an order.
Protection of parliamentary privilege
Under the Parliamentary Privileges Act 1987, the giving of evidence and the production of documents by a witness has the same legal status as a Senator’s participation in Senate proceedings. Those acts attract the protection of parliamentary privilege. This is a wide-ranging protection against prosecution, suit, examination or question before courts and tribunals.
Parliamentary privilege also protects witnesses from interference. Senate Standing Order 181 provides that: “a witness examined before the Senate or a Committee is entitled to the protection of the Senate in respect of the evidence of the witness”. This declaration demonstrates that the Senate will use its powers to protect witnesses against conceivable adverse consequences arising from their giving evidence.
Defence of public interest immunity
Neither House of Parliament has yet to formally decide whether it accepts that its authority is constrained by public interest immunity. The Senate has implicitly acknowledged that there is some information held by the Executive Government that should not be disclosed on grounds of public interest immunity:
- subject to the determination of all just and proper claims of privilege which may be made by persons summoned, it is the obligation of all such persons to answer questions and produce documents; and
- upon a claim of privilege based on an established ground being made to any question or to the production of any documents, the Senate shall consider and determine each such claim.
The Senate has made it clear that, while witnesses may object to giving evidence on the ground of public interest immunity, it reserves the right to conclusively determine whether a claim will be accepted.
Expectations of officials
The Senate has made a number of resolutions that are important to public servants about the application of its power of inquiry. For example, public servants are not to give opinions on matters of policy, and must be given reasonable opportunity to refer questions to a senior officer or a minister.
The first rule is designed to avoid officials becoming involved in discussion or dispute with Committee members about the merits of Government policy as determined by ministers. Officials may explain Government policy, contrast it with alternative policies, and explain how a particular policy was selected, but they may not be asked to give opinions on the relative merits of alternative policies. It is the role of ministers, not officials, to defend Government policy. The second rule about referring questions to a senior officer or a minister reflects two concerns:
- first, that an official is not required to answer a question where all the necessary information may not be available to the official
- secondly, if there is any difficulty in answering a question, the difficulty is referred to a senior officer, and if necessary, ultimately to a minister for resolution.
Particular processes of Estimates Committees
Estimates Committees’ scrutiny provides the primary opportunity for the Senate to assess the performance of the public service, its administration of Government policy and programs.
Senate Estimates Committees have the power to call witnesses and require the production of documents. Their hearings are required to be in public, and Estimates Committees are not empowered to receive confidential material in the absence of a specific resolution of the Senate to that effect. All material received by an Estimates Committee is automatically published.
The Senate has considered whether Estimates Committees should be able to take evidence in camera, but the Procedure Committee has on several occasions recommended against such a change, and the Senate has accepted those recommendations.
Estimates Committees may ask for explanations from ministers or officials relating to items of proposed expenditure. Usually the Committees leave it to the minister to determine which witnesses attend, although they have the power to call particular witnesses. In practice, however, ministers agree to the attendance of particular witnesses.
The only substantive rule of the Senate relating to the scope of questions is that questions must be relevant to the matters referred to the Committees, namely the estimates of expenditure. As the estimates represent agencies’ claims on the Commonwealth for funds, any questions about their operations or financial positions which shape those claims are also considered relevant by Estimates Committees.
Armed with this fundamental understanding of the processes of Senate and other Parliamentary Committees, those officers who are involved in those processes should be well placed to discharge their duties, while respecting the requirements of the Senate and, more broadly, the Parliament.
Original article by Clayton Utz Solicitors, Australia