Guidelines for Appearing before State Parliamentary Committees (HTML)

INTRODUCTION

Accountability

1. In the Australian system of parliamentary government, the public and parliamentary advocacy and defence of government policies and administration has traditionally been, and should remain, the preserve of ministers, not officials.

2. Ministers are responsible for the exercise of Executive power, and are accountable to Parliament for their conduct in the exercise of those powers. The duty of officials is to assist ministers to fulfil their accountability obligations by providing full and accurate information to the Parliament about the factual and technical background to policies and their administration. It is not for officials to defend or make judgements on Government policies.

3. These Guidelines aim to aid officials in discharging these responsibilities and ensuring that accurate information is provided to Victorian Parliamentary Committees and Royal Commissions.

Scope of Guidelines

4. The Guidelines apply to the appearance by officials before Parliamentary Committees of the Victorian Parliament and Royal Commissions. These Guidelines do not cover:

  • other inquiries (such as party Committees) or court appearances; or
  • the processes involved in the annual inquiry into budget estimates and outcomes carried out by the Public Accounts and Estimates Committee.

5. These Guidelines replace:

  • Guidelines on the Provision of Information and Evidence to Victorian Parliamentary Committees (December 1991).

Separate Guidelines relating to appearances before Commonwealth Parliamentary Committees and regarding submissions and responses to inquiries are also available.

Top

Application of Guidelines

6. These guidelines apply to all Departments and agencies, and statutory authorities are encouraged to comply. If officials of statutory authorities have any queries concerning the application of these guidelines to them, they should discuss the matter with the relevant Department, or Government Branch, DPC.

7. These Guidelines are designed to assist officials appearing before Parliamentary Committees and Royal Commissions, by informing them of the principles they are required to follow. It is recognised, however, that the role and nature of some statutory authorities may require some modification of these Guidelines.

8. Where a Committee's inquiry is directed towards the examination of Departmental administration and practice, it is for the Departmental Secretary, with the general consent of the relevant Minister, to use his or her discretion as to the extent to which aspects of these Guidelines, (for example, Ministerial approval of written evidence and the selection of witnesses), are to be followed.

9. Officials of statutory authorities which have statutory public information and education roles clearly are able to express views on the policy responsibilities of their authorities. Care should be taken however to avoid taking partisan positions on matters of political controversy, and officials must be mindful of the application of section 95 of the Constitution Act 1975 (Vic) (see paras 115-117, 50-51). In other respects these guidelines should be followed as far as is relevant including in relation to claims of public interest immunity (see para 71).

10. Witnesses from statutory authorities must acquaint themselves with relevant secrecy provisions which may apply (see para 75), and should refer to any code of conduct which may apply.

Further Information

11. These Guidelines are intended as a general guide. Prior to appearing before a Committee, officials in each case should check the relevant statutory and administrative powers of the Committee (and referred to below).

12. Further general information or guidance should be sought in the first instance from the official's Departmental or Agency Head, and if necessary, from the relevant Minister.

13. Requests for further information about these Guidelines or copies of the Guidelines for Submissions and Responses to Inquiries, should be directed to the Department of Premier and Cabinet, Government Branch,  9651 0736.

14. Further information on the obligations of officials may be sought from DPC Government Branch, or if necessary from the Commissioner for Public Employment,  9651 5700.

Top

PARLIAMENTARY COMMITTEES GENERALLY

Establishment of Parliamentary Committees

15. In Victoria, Parliamentary Committees are established under:

  • the Parliamentary Committees Act 1968 (Vic); or
  • the Standing Orders of the Legislative Assembly or Legislative Council.

16. Parliamentary Committees are established to inquire into specific policy issues for example, road safety or for more general purposes, such as scrutiny of legislation passing through Parliament for its impact on citizens' rights .

17. Committees may be composed of members from both Houses of Parliament, or may contain members from one House only.

18. The Parliamentary Committees Act 1968 (Vic) and the Standing Orders of the Houses outline the membership, purposes and powers of the Committees. Certain Committees are also obliged to report to Parliament periodically .

19. Further information about Committee work can be obtained from the website http://www.parliament.vic.gov.au/ctees.html.

Types of Committee

20. There are three types of Committee, and the rules governing the procedure of each type are slightly different. The types of Committee are:

  • Joint Investigatory Committees
  • Specific Purpose Committees
  • Select Committees (sometimes referred to as domestic Committees)

Top

Parliamentary Rules of Procedure

21. The rules of procedure which apply when appearing before a Victorian Parliamentary Committee vary according to the type of Committee. Part I of the Parliamentary Committees Act 1968 (Vic) governs procedure for Joint Investigatory Committees, the Economic Development Committee and Specific Purpose Committees. The Act however also applies Standing Orders to those Committees .

22. Other Committees established by Standing Order, such as the Privileges Committee in each House, have procedure regulated by the relevant Standing Orders.

Powers to Call for Witnesses and Documents

23. Generally speaking, Victorian Parliamentary Committees have the power to send for witnesses and documents, although the source of the power differs.

24. Joint Investigatory Committees, the Economic Development Committee and Specific Purpose Committees have the power to send for persons, papers and records under section 4J(1) of the Parliamentary Committees Act 1968 (Vic) .

25. Other Select Committees in either House, such as the Privileges Committee, may have the power to send for persons, papers and records under Standing Orders 202 of the Legislative Assembly and 198 of the Legislative Council. These powers must however be granted by resolution of the relevant House.

26. In any potential inquiry by a Select Committee, a check should be carried out on that Committee's specific powers to verify its ability to send for and seek information from officials. This should include examining any relevant House resolutions concerning the Committee's activities.

Punishment for Failure to Attend or Produce Material

27. Failure to appear before a Committee when summoned may be a contempt of Parliament, which is punishable at the discretion of the relevant House. The Parliamentary Committees Act 1968 (Vic) does not provide for any penalty for failure to appear or provide information, but Standing Orders 227 of the Legislative Assembly and 221 of the Legislative Council allow for a person who does not comply to be censured or punished.

28. The Victorian Parliament retains the power to punish for contempt and may:

  • commit a person (imprison them)
  • issue a reprimand

Top

Preliminaries to an Inquiry

What Happens once a Request for Attendance is Received?

29. In all cases, requests for an official to attend a Committee hearing in an official capacity, or to provide material to it, should be made through the relevant Minister. If a Committee request is received directly by an official, the official must notify their Departmental Secretary, who should advise the Committee Secretariat that the relevant Minister will correspond directly with the Committee Chair, and advise what officials are to be made available. The Departmental Secretary should then advise the Minister of that arrangement.

30. Once any request is received, a number of preliminary steps must be taken. These steps are intended to assist officials who are obliged to appear in person before an inquiry. They are also relevant to officials participating in less formal consultations such as public meetings, workshops and "round-tables" which may form part of a Committee of inquiry.

Preliminary Steps

31. In preparing to appear before a Committee of inquiry officials (including representatives of Departments, statutory authorities and agencies) should be aware of three basic requirements:

  • Officials must seek advice, comment or direction from senior officials and if necessary, their Departmental Head;
  • Officials should have a sound knowledge of relevant Government policy and any submissions made previously to the inquiry;
  • Officials must be aware that they are representing the Victorian Government and are providing a whole-of-government perspective. Appearances are not an opportunity to express personal or agency views.

32. Where more than a single Department (not including DPC) is involved, officials must inform DPC and co-ordinate involvement in Committee hearings with the lead agency (where DPC is not the lead agency). DPC must be kept fully informed of the progress of witnesses before Committee hearings, by way of discussion with the relevant DPC contact and, if necessary, through correspondence to the Secretary, DPC.

33. Where a single Department only is involved (not including DPC), officials must inform DPC initially, and DPC must be kept fully informed of the progress of witnesses before Committee hearings, by way of discussion with the relevant DPC contact and, if necessary, through correspondence to the Secretary, DPC.

34. Where DPC is the lead agency in either case, officials from other involved Departments must inform DPC who will co-ordinate involvement in Committee hearings.

35. Where DPC is the only Department involved, the progress of witnesses in front of Committees should be documented, and if necessary, other relevant Departments informed of progress.

Who Chooses the Witnesses ?

36. A Minister may delegate to the Departmental Secretary the responsibility of deciding the official(s) most appropriate to provide the information sought by the Committee. It is essential that the official(s) selected should have sufficient responsibility or be sufficiently close to the particular work area to be able to satisfy the Committee's requirements.

37. Where an official receives correspondence directly from a Committee, the procedure described in paras 30-34 applies.

Top

How Should Witnesses Prepare ?

38. It is essential that all witnesses be thoroughly prepared for hearings. Preparation should include:

  • familiarity with probable lines of questioning;
  • clear understanding of relevant Government policy;
  • background research on the issue being considered by the Committee; and
  • where possible, information concerning any other particular interests of Committee members relevant to the inquiry.

39. Useful sources of information concerning these topics include the Committee secretariat, Hansard and previous Committee reports.

40. Officials who have not previously attended Committee hearings should be briefed on the requirements by senior officials, or other officials who may have appeared before Committees in the past. Senior officials should satisfy themselves, so far as possible, that all witnesses are capable of giving evidence creditably.

When Should a Witness Consult with the Minister ?

41. Depending on the importance of the inquiry, witnesses should consult the relevant Minister before a hearing and, if required, the Minister representing the relevant Minister in the other House.

42. Examples of the need for consultation include proposed claims that it would be in the public interest to withhold certain documents or information, or requests for the hearing of evidence in private (see para 78).

43. Clause 25 of the Victorian Public Sector Code of Conduct (VPSCC) requires that:

"Information sought by Parliamentary Committees should be provided unless the relevant Minister certifies that disclosure would be prejudicial to the public interest."

Preparation of Written Material

44. Generally, Departments should provide a written statement on which any oral evidence is to be based. In addition, where a Committee asks written questions, written replies should be provided. All written material (authorised in accordance with these Guidelines) should be sent to the Committee secretary.

45. When the interests of several Departments are involved, adequate consultation should take place in preparing material and making arrangements for witnesses to attend.

Top

How Should Written Material Deal with Policy Issues?

46. Written material prepared by an official for use at a Parliamentary Committee hearing should conform to the following broad principles. Generally, written material:

  • should not advocate, defend or canvass the merits of government policies (including policies of previous Commonwealth governments, or State or foreign governments) in a subjective way. Officials should not be deterred however from objectively explaining the reasons for policy decisions. In unusual circumstances, the relevant Minister may wish to make written submissions, to appear personally, to arrange for Ministers representing them to appear personally, or to invite Committees to submit questions on policy issues in writing;
  • may describe relevant State Government policies and the administrative arrangements and procedures involved in implementing them;
  • should not identify confidential considerations leading to government decisions or possible decisions, in areas of any sensitivity, unless those considerations have already been made public or the Minister authorises the Department to identify them. It may be preferable to have the Minister canvass the material in these categories, but if Departments are to canvass such material, they should clearly bring it to the Minister's attention when seeking approval for the submission;
  • must not disclose any Cabinet in confidence material such as Cabinet deliberations, reports or submissions prepared for the assistance of Cabinet or documents so close to Cabinet processes that they may indirectly involve disclosure of Cabinet deliberations (refer also para 71); and
  • may, after consultation with the Minister, set out policy options and list the main advantages and disadvantages, but should not reflect on the merits of any judgement the Government may have made on those options or otherwise promote a particular policy viewpoint.

Approval of Written Material by Minister

47. Any written material to be used in the appearance should be cleared to appropriate levels within the Department, and normally with the Minister, in accordance with arrangements approved by the Minister(s) concerned.

48. Where a Committee is inquiring into the personal actions of a Minister (or official) and seeks information from officials, there may be circumstances where it is not appropriate for the requirements set out above for approval of written evidence to be followed.

Requests for More Time to Prepare Evidence

49. The Minister (or the Department on his or her behalf) may ask the Committee for more time to prepare evidence, especially if the witness has received insufficient notice of an appearance, or where complex issues may be involved in written material being prepared.

Top

Conduct During Hearings

General Principles

50. Officials should be open with Committees and if unable or unwilling to answer questions or provide information should say so, and give reasons. It is also, of course, incumbent on officials to maintain the highest standards of courtesy in their dealings with Parliamentary Committees.

51. Clauses 25 and 26 of the VPSCC provide that:

"On matters of Government business, you may appear before Parliamentary Committees as a representative of a Minister. You are not therefore expected to answer questions:

  • seeking your personal views on Government policy;
  • seeking details of matters considered in relation to a Ministerial or Government decision or possible decision, unless those details have already been made public or the giving of evidence on them has been approved; or
  • which would require a personal judgement on the policies or policy options of the Victorian or other governments.

If you are directed to answer a question falling within the coverage of the categories listed above, seek a deferral until you can discuss the matter with the Minister or chief executive officer as appropriate.

Alternatively, you can request that the answer to the particular question be reserved for submission in writing."

Evidence on Oath

52. Section 19A(3) of the Constitution Act 1975 (Vic) and 4J(4) of the Parliamentary Committees Act 1968 (Vic) make it clear that any Committee can choose to have evidence heard before it on oath. Officials must tell the truth on examination under oath.

53. Officials should be aware that as a result, the provision of intentionally false evidence would be a criminal offence. The maximum penalty for this offence is 15 years' jail .

54. Being found guilty of a criminal offence punishable by imprisonment constitutes grounds for termination of any non-executive employee under section 31(1)(c) of the Public Sector Management and Employment Act 1998 (Vic). It is also highly likely that the failure to give truthful evidence under oath not resulting in a conviction may constitute grounds for dismissal of any non-executive employee as serious misconduct within the meaning of section 31(1)(d) of the Act.

55. Executive officers may also be subject to dismissal in these situations if dismissal on that basis is consistent with their contract . Since the standard executive contract includes the Victorian Public Sector Code of Conduct, conviction or failure to give truthful evidence not resulting in conviction may be a breach of the code thereby providing grounds for dismissal in accordance with their contract.

Top

What Documents Should be Disclosed in Committee Hearings ?

56. These Guidelines, and particularly paras 46, 64 and 71, should be read in the context of the Freedom of Information Act 1982 (Vic) (the FOI Act). The Act establishes minimum standards of disclosure of documents held by the State. It is not, however, a code governing release of documents or information generally as there are many other means of obtaining information from Government (e.g. press releases, annual reports, etc.).

57. Any material which would not be exempt under this legislation should (with the knowledge of the Minister in sensitive cases) be produced or given, on request, to a Parliamentary Committee. In sensitive cases, or where the Minister has a particular interest or has been involved, guidance from senior officials, and possibly consultation with the Minister should be sought. In some cases, it may be in the public interest to provide to the Committee a document or information for which exemption would normally be claimed under the Act. The exemptions in the Act should therefore be viewed from the perspective of the proper role and functions of the Parliament.

58. So far as relevant, the guidelines in para 46 relating to written material apply also to oral evidence.

Clarification or Amplification of Evidence

59. Committees may occasionally seek information which may properly be given, but where officials are unsure of the facts, or do not have the information to hand. In such cases witnesses should qualify their answers as necessary so as to avoid misleading the Committee, and, if appropriate, should give undertakings to provide further clarifying information.

60. It may be appropriate to ask for written confirmation of information requested and it is particularly important to submit such further material without delay.

Should Witnesses Answer Questions about other Departments' Responsibilities ?

61. Witnesses should take care not to intrude into responsibilities of other Departments and agencies (see also para 46). Where a question falls within the administration of another department or agency, an official witness may request that it be directed to that Department or agency or be deferred until that Department or agency is consulted.

When Should Evidence be Withheld?

62. There are three main areas in which officials need to be alert to the possibility that they may not be able to provide Committees with all the information they seek, or may need to request restrictions on the provision of such information. These are:

  • matters of policy;
  • public interest immunity; and
  • confidential material where private evidence is desirable.

63. The conduct of official witnesses in relation to these areas is described in detail below.

How Should Witnesses Deal with "Policy" Questions ?

64. As mentioned in paras 51 and 62, the role of an official witness is not to comment on policy but to speak to any statement provided to the Committee and to provide factual and background material to assist understanding of the issues involved. The procedure applying to written submissions (see para 47) also applies to oral evidence. Note, however, that such restrictions do not necessarily apply to statutory officials (see para 9).

65. If an official witness is directed to answer a "policy" question, and has not previously cleared the matter with the Minister, the official should ask to be allowed to defer the answer until approval is obtained. Alternatively, it may be appropriate for the witness to refer to the written material provided to the Committee and offer, if the Committee wishes, to seek elaboration from the Minister, or to request that the answer to a particular question be reserved for submission in writing.

Top

Can a Witness Claim Public Interest Immunity?

66. Public interest immunity is a traditional legal doctrine which allows Government to prevent the disclosure of certain evidence in legal proceedings if it is in the public interest to keep that evidence undisclosed. The underlying basis for the doctrine is that Government at a high level cannot function without some degree of secrecy. Ministers and officials could not effectively discharge their responsibilities if all documents created to develop and implement policy were publicly available .

Claims to be Made by Ministers

67. Claims that information should be withheld from disclosure on grounds of public interest (public interest immunity) should only be made by Ministers (normally the responsible Minister in consultation with the Attorney-General and the Premier).

68. As far as practicable, decisions to claim public interest immunity should take place before hearings, so that the necessary documentation can be produced at the time. The normal means of claiming public interest immunity is by way of a letter from the Minister to the Committee chairman. The DPC legal branch should be consulted on the appropriateness of the claim in the particular circumstances and the method of making the claim.

69. As a matter of practice, before making a claim of public interest immunity, a Minister might explore with a Committee the possibility of providing the information in a form or under conditions which would not require the claim to be made.

Matters Arising During Hearing

70. If a witness, when giving evidence to a Committee, believes that circumstances have arisen to justify a claim of public interest immunity, the official should request a postponement of the evidence, or of the relevant part of the evidence, until the Minister can be consulted.

Scope of Public Interest Immunity

71. Documents or oral evidence which could form the basis of a claim of public interest immunity may include matters falling into the following categories that coincide with some exemption provisions of the FOI Act:

  • material disclosing any deliberation or decision of the Cabinet, other than a decision that has been officially published, or purely statistical, technical or scientific material the disclosure of which would not reveal a decision or deliberation not officially published (refer also para 46) ;
  • material which might harm relations with other States, or divulge confidential material communicated by any other Australian government ;
  • material which might disclose advice, opinions or other deliberations involving Ministers and officials for the purposes of the deliberative processes of government where disclosure would be contrary to the public interest ;
  • material relating to law enforcement or protection of public safety which would, or could reasonably be expected to:
    • prejudice the investigation of a breach of the law or the enforcement of the law in a particular instance;
    • disclose, or enable a person to ascertain the existence or identity of a confidential source or information, in relation to the enforcement or administration of the law;
    • endanger the life or physical safety of any person;
    • prejudice the fair trial of a person or the impartial adjudication of a particular case;
    • disclose lawful methods or procedures for investigations the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or
    • prejudice the maintenance or enforcement of lawful methods for the protection of public safety;
  • material subject to legal professional privilege ; and
  • material whose disclosure may be contrary to the public interest in that it adversely affects the economy by revealing consideration of the anticipated movement in a range of economic indicators .

72. It must be emphasised that the provisions of the FOI Act have no actual application as such to parliamentary inquiries, but are merely a general guide to the grounds on which a parliamentary inquiry may be asked not to press for particular information, and that the public interest in providing information to a parliamentary inquiry may override any particular ground for not disclosing information.

73. For a more detailed understanding of the above exemption provisions, reference should be made to the FOI Act and advice sought from relevant Departmental legal advisers, or the Victorian Government Solicitor's Office (VGSO).

74. The FOI Act contains a number of other exemptions, although these may not form a sound basis for a claim of public interest immunity.

What Other Considerations Might be Relevant?

75. In addition, the following considerations may affect a decision whether to make documents or information available:

  • secrecy provisions of Acts. Legal advice should be sought when occasions involving such provisions arise; and
  • court orders or sub judice issues. Where the provision of information would appear to be restricted by a court order, or where the question of possible prejudice to court proceedings could arise, legal advice should be sought.

Top

Are Committee Hearings Public?

76. Joint Investigatory Committees, the Economic Development Committee and Specific Purpose Committees can elect to hold a public hearing under section 4I(1) of the Parliamentary Committees Act 1968 (Vic) .

77. Remaining Select Committees in either House such as the Privileges Committee have discretion to admit the public under Standing Orders 209 of the Legislative Assembly and 199 of the Legislative Council. The public will not however be admitted at any time whilst the Committee is deliberating under these Orders.

Can a Witness Request that Evidence be Given in Private (in camera) ?

78. There may be occasions when a Minister (or, on his or her behalf, the Departmental Secretary) would wish, after balancing the public interests involved, to raise with the Committee the possibility of an official producing documents or giving oral evidence in private, and on the basis that the information not be disclosed or published except with the Minister's consent.

79. Section 4J(2) of the Parliamentary Committees Act 1968 (Vic) obliges Joint Investigatory Committees, the Economic Development Committee and Specific Purpose Committees to take all evidence in public.

80. Section 4J(3) however gives a discretion to those Committees to take evidence in private, if they believe special circumstances warrant it.

81. In respect of other Committees, the Standing Orders proceed on the assumption that Committee hearings are held in private, unless the public is admitted as described above.

What Happens if a Witness Believes that Evidence Should be Given in Private During Proceedings?

82. If, when giving evidence to a Committee, an official witness believes that circumstances have arisen to justify requesting that evidence be heard privately, the official should make such a request if the possibility has been foreshadowed with the Minister, or should ask for the postponement of the evidence or the relevant part of the evidence until the Minister can be consulted.

83. These circumstances might include cases where:

  • although a claim of public interest immunity could be justified, the Minister considers that the balance of public interest lies in making the relevant information available to the Committee;
  • while a claim of immunity may not be appropriate, other considerations justify the Committee being asked to take evidence privately. Examples, which parallel other exemption provisions in the FOI Act, are evidence the public disclosure of which would:
  • involve the unreasonable disclosure of information relating to the personal affairs of a person;
  • reveal business affairs, including trade secrets or other commercially sensitive information;
  • reasonably be expected to have a substantial adverse effect on the management of the economy or on the conduct of business generally; or
  • disclose material obtained in confidence; or
  • similar or identical evidence has been previously given in private to other hearings of the Committee or other Committees of the Parliament and has not been made public.

Committee Requests for Evidence "Off the Record"

84. Section 4J(7) of the Parliamentary Committees Act 1968 (Vic) obliges Joint Investigatory Committees, the Economic Development Committee and Specific Purpose Committees to make a record of all evidence given before them.

85. In relation to other Select Committees the Standing Orders contain no such requirement.

86. Officials should be aware that there is no such thing as evidence which is "off the record", and any information purportedly given in such a way will not be protected (as referred to below) and may expose the official or the Government to adverse consequences. In the unlikely event an official is asked to give evidence "off the record", he/she should request that the evidence be given on the record, and if necessary, a postponement be granted until the Minister can be consulted.

Top

Protection of Submissions and Witnesses

Parliamentary Privilege

87. The protection of parliamentary privilege means that a person cannot be sued or prosecuted in respect of the act or the material protected; nor can that act or material be used against a person in legal proceedings.

88. In relation to Select Committees, witnesses are entitled to the protection of the House under Standing Orders 232 in the Legislative Assembly and 228 of the Legislative Council.

89. As far as other Committees are concerned, witnesses providing evidence are also likely to be entitled to that protection by virtue of section 3(2) of the Parliamentary Committees Act 1968 (Vic), which applies the Standing Orders to Committees under that Act.

Witness Tampering

90. Standing Orders 231 of the Legislative Assembly and 227 of the Legislative Council deal with attempting to influence a witness.

91. The Council Order applies to evidence given in any Committee and allows the Council to declare the person guilty of contempt and punish accordingly.

92. The Assembly Order refers to evidence given in the House or a Select Committee and obliges the House to deal with the person with utmost severity.

93. As far as other Committees are concerned, section 3(2) of the Parliamentary Committees Act 1968 (Vic), applies the Standing Orders to Committees under that Act. This would allow the relevant House to punish any person attempting to influence a witness (see para 27).

Self Incrimination

94. The generally accepted principle is that a witness cannot refuse to answer a question or produce documents on the ground that the answer to the question or the production of documents might incriminate the witness.

95. Neither the Standing Orders nor the Parliamentary Committees Act 1968 (Vic) provides any exemption, although the decision as to whether any question must be answered lies ultimately with the Committee itself.

96. An official in this position should request that as a minimum, the evidence be taken in private, and otherwise should seek independent legal advice.

Can a Witness Have Representation at a Committee Hearing?

97. Section 4I(3) of the Parliamentary Committees Act 1968 (Vic) expressly states that unless a resolution from both Houses of Parliament is obtained, a person is not entitled to legal representation at a public hearing of a Joint Investigatory Committee or a Specific Purpose Committee. In the case of the Economic Development Committee, a resolution of the Legislative Council only is necessary .

98. In relation to other Select Committees, the Standing Orders contain no provision prohibiting legal representation. In this case, a witness should seek express permission from the Committee to have representation during proceedings.

99. Normally, officials should not need counsel when appearing before Parliamentary Committees. Should the need arise, however, DPC should be consulted.

Can a Witness Claim Expenses?

100. In relation to Joint Investigatory Committees, Specific Purpose Committees and the Economic Development Committee , section 4J(5) of the Parliamentary Committees Act 1968 (Vic) gives witnesses attending a Committee the right to expenses as specified in the regulations. No regulations regarding witness expenses have yet been made.

101. In relation to Select Committees, the Standing Orders make no provision for reimbursement of expenses.

102. If a witness wishes to claim for expenses, the matter should be discussed with senior officials, and if warranted, a formal written request should be made to the Committee for reimbursement of the expenses.

Top

Other Matters

Correction of Evidence

103. Once proceedings have concluded and an official record of the Committee's deliberations is available, officials should carefully scrutinise the record for accuracy. Any inaccuracy should be brought to the attention of the Committee and a request to correct the record made. In some cases, it may be necessary to furnish a further statement to make the corrections. The Committee may require that correction be made in a particular form, using agreed wording or other material.

104. If a witness believes that he or she has omitted some relevant evidence, the witness should consult with the Minister (or Departmental Secretary), with a view to seeking leave of the Committee to lodge a supplementary statement or give further oral evidence. All supplementary written material authorised in accordance with these Guidelines should be forwarded to the Committee Secretary.

Publication of Evidence

105. Officials must bear in mind that any evidence which is given at a Committee (other than in private) may be made publicly available.

106. Section 4R of the Parliamentary Committees Act 1968 (Vic) obliges a Joint Investigatory Committee, Specific Purpose Committee or the Economic Development Committee to make available to a member of the public on request, any submission received or the record of any evidence given before it or determination made by it, unless it considers there are special circumstances making it undesirable to do so.

107. Section 4R(3) prohibits the publication or disclosure of any evidence given in private.

108. In relation to Select Committees, Standing Orders 208 in the Legislative Assembly and 207 in the Legislative Council prohibit the publication of evidence and documents which have not been reported in that House.

109. Standing Orders 205 in the Legislative Assembly and 208 in the Legislative Council however allow the reporting of opinions, minutes of evidence or proceedings from time to time.

110. Once such material is reported in the relevant House, it enters Hansard and becomes public.

111. If documentation or evidence is given to a Committee which an official, or the Minister regards as sensitive and should not be published, the Committee should be made aware of this fact in writing at the time the evidence or documentation is given to the Committee. Once Committee deliberations are finished, a written request may be necessary to argue that the Committee not publish the material in question.

112. In the case of a Joint Investigatory Committee, Specific Purpose Committee or the Economic Development Committee, attention should be drawn to the exercise of the discretion under the Parliamentary Committees Act 1968 (Vic) not to publish.

113. In some cases, a Committee may seek permission from a witness to publish certain evidence. If a Committee seeks a witness' concurrence to publish evidence, he or she should ask the Committee to delay the decision to enable the witness to consult the Minister or the Departmental Secretary.

Committee Requests for Further Information

114. On occasion, following an appearance, a Committee may write to the person who has appeared requesting further information, or written answers to questions posed during a hearing (which may have occurred by arrangement). Where such a request is received, the protocols surrounding the provision of written material in paras 44 to 49 must be observed. Similarly, it may be necessary to consult other Departments who were involved in the hearing, and DPC for information or guidance.

Top

Appearance in a "Personal" Capacity

115. There is no restriction on officials appearing before Parliamentary Committees in their "personal" capacity. An official so called, however, should pay heed to these Guidelines and the VPSCC, especially clauses 17 -21. Furthermore, officials are bound by confidentiality restrictions in

  • clauses 19, 20 and 45 of the VPSCC;
  • any applicable employment contract; and
  • section 95 of the Constitution Act 1975 (Vic) which prevents a person employed in the service of the State of Victoria from using information obtained during their employment except in the performance of duties.

116. It is essential to recall that comments made in front of Parliamentary Committees may become public at some stage.

117. It is particularly important for senior officials to give careful consideration to the impact, by virtue of their position, of any comment they might make. Indeed heads of agencies and other very senior officials need to consider carefully whether, in particular cases, it is possible for them realistically to claim to appear in a "personal" rather than an "official" capacity, particularly if they are likely to be asked to comment on matters which fall within or impinge on their area of responsibility. An official who is appearing before a Committee in a personal capacity should make it clear to the Committee that the official's appearance is not in an official capacity.

Appearances Before the Bar of a House of the Parliament

118. In both Houses of Parliament in Victoria, the main entrance to each House can be "barred" by the lowering of a heavy rail (brass in the Legislative Assembly and ornate carved wood in the Council). This so called "Bar" of the House is a point outside which no Member may speak to the House or over which no stranger may cross and enter the Chamber unless invited by the House. In parliamentary history, the Bar is the place to which persons are brought in order that the Speaker may address them on behalf of the House or at which they are orally examined . The witness remains behind the Bar whilst being questioned, as there is sufficient space between the Bar and the main entrance to the House.

119. In the Legislative Assembly, Standing Order 225 allows the House to order the summoning of a witness to be examined at the Bar. Rule of practice 28 states that during examination, the Bar is to remain down. Standing Order 230(a) states that a witness before the Bar is examined by the Speaker, and other members must put questions through the Speaker. If the witness is in custody at the Bar, then Standing Order 230(c) allows examination by the Speaker only.

120. In the Legislative Council, Standing Order 217 allows the House to order the summoning of a witness to be examined at the Bar. If the witness is in custody at the Bar, then Standing Order 231 allows examination by the President only.

121. It would be only in exceptional circumstances that an official would be summoned to the bar of a House of the Parliament and each case would need individual consideration.

122. As a general rule, it would be appropriate for these Guidelines to be followed in so far as they apply to the particular circumstances.

Top

Appearances Before a State Royal Commission

123. A "Royal Commission of Inquiry" or "Board of Inquiry" is an ad hoc advisory body appointed by Government to obtain information in the form of a report. Frequently, such bodies are required to make assessments of information collected and make recommendations to Government .

124. The power to issue letters patent establishing a Royal Commission is a power derived from the monarch, which now resides in his or her representative, the Governor. The letters patent establishing the Office of Governor give the Governor a specific power to appoint Royal Commissions on behalf of the monarch . Notwithstanding this, the Victorian Constitution Act 1975 (Vic) was amended in 1997 to insert section 88B which now gives the power a statutory basis. Section 88B states that the Governor in Council has the power to issue a commission.

125. Broadly speaking, these guidelines, in particular the paragraphs relating to claims of public interest immunity and hearings in private by a Royal Commission apply to appearances by officials. Officials should follow the same protocols in relation to what evidence should be given, preparation and consultation for example. Some aspects of appearances are however affected by the Evidence Act 1958 (Vic), discussed below.

126. Royal Commission appearances are similar to court proceedings and are subject to specific provisions in Division 5 of Part I of the Evidence Act 1958 (Vic). These provisions affect witness privileges and obligation to attend.

127. Section 17 of the Evidence Act 1958 (Vic) gives the Commission the power to call for witnesses by summons, to have them attend and bring any documents specified. The witness does not however:

  • have to produce any document which would not otherwise be required in a Supreme Court trial; or
  • answer any question which would not need to be answered in a Supreme Court trial.

128. Section 18 allows a commission member to administer an oath to a witness and examine them on oath.

129. Section 19 provides that a witness must not fail to attend without reasonable excuse, refuse to be sworn without lawful excuse or refuse to answer a question. Breach of section 19 is an offence, and section 20 provides a procedure for punishment. The Commission may, through a law official, go to the Supreme Court seeking an order that the person should show cause why they shouldn't be punished. If the Supreme Court is satisfied that the witness is guilty of an offence, it can impose a fine of $1500 or imprisonment for not more than 3 months.

130. Section 19B allows for restrictions on public access to Commission hearings and the publication of the Commission's proceedings. The presiding Commissioner can exclude any person or class of persons from hearings if satisfied that the exclusion would facilitate proceedings or would be in the public interest. The Commissioner can also order that the transcript of proceedings for that private part of the Commission's hearings not be published.

131. Section 19C removes the privilege against self-incrimination for witnesses, but makes any incriminating evidence inadmissible in civil or criminal trials.

132. Section 19D totally removes legal professional privilege in relation to witness evidence.

133. Section 21A preserves any other existing privileges as if Commission proceedings were Supreme Court proceedings.

134. Section 21 allows for regulations to be made granting allowances to witnesses for expenses. These regulations are due to expire but no new regulations have yet been made. New regulations must however be in place before 30 June 2003, and should be referred to once made.

135. It is highly likely that if required to appear before a Royal Commission, an official would be represented by counsel. Accordingly, specific advice on other aspects of an appearance should be sought from the relevant legal branch, or counsel.

Top


Last updated on Tuesday, 02 April 2013