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House of Representatives                                Ch 18                                                 p 656

Evidence from Members and Senators

Members or Senators may appear as witnesses before committees of the House. If a Member, including a Minister, volunteers to appear before a House committee the Member may do so and does not need to seek leave of the House. Ministers, including a Prime Minister, have appeared before committees of the House, and Ministers have briefed general purpose standing committees at the commencement of inquiries, or held discussions with committee members concerning possible inquiries. ¹

May states:

A Member who has submitted himself to examination without any order of the House is treated like any other witness. ²

If a committee wishes a Member to attend as a witness, the Chair writes inviting the Member to attend. If the Member refuses to attend or to give evidence or information as a witness, the committee cannot summon the Member again, but must advise the House. ³ It is then for the House to determine the matter. These procedures have never had to be implemented in the House of Representatives. In appearing before the Committee of Privileges, Members (and Senators) have been required to swear an oath or make an affirmation and have been dealt with in the same manner as other witnesses. ⁴

Senators cannot be compelled by the House to appear before it or before one of its committees, or to produce ev idence. The same applies to Members in relation to the Senate and its committees. This immunity is entrenched practice, but derives ultimately from section 49 of the Constitution.

In 1920 a Senator of his own volition sought consent of the Senate to appear before a House of Representatives committee. The Senate, by motion, granted the Senator leave to attend and give evidence to the committee if he thought fit. ⁵ However, in 1973 and 1976 Senators appeared before the House of Representatives Standing Committee on Environment and Conservation without seeking leave of the Senate. Their appearance was at their own request. In 1994 members of a Senate committee attended a private meeting of the House Procedure Committee for informal discussions on the Senate committee’s experience with videoconference technology.

There have been several instances of Members of the House who have appeared, as Ministers, before Senate committees. ⁶ In 1981 the Speaker appeared voluntarily before the Senate Select Committee on Parliament’s Appropriations and Staffing. In the same year the chair of the Senate Standing Committee on Finance and Government Operations wrote to a former Minister regarding an apparent conflict in evidence given to the committee during the course of its inquiry into the Australian Dairy Corporation and its Asian subsidiaries. ⁷ The former Minister, who at the time had another portfolio, wrote to the committee. There was still a discrepancy between the sworn evidence of one witness and the recollections of the Minister as expressed in the letter. As a result of further correspondence the Minister made a personal explanation in the House of Representatives. During the course of this personal explanation the Minister stated:

I do not believe it appropriate that a Minister of this House should appear and give sworn evidence before a committee of the other House. ⁸

A copy of this personal explanation was forwarded to the committee and the chair made a statement to the Senate shortly afterwards.

Standing orders of both Houses set down procedures to be followed if a member of the other House is to be called to give evi dence before a committee. If a committee of the House wishes to call before it a Senator who has not volunteered to appear before it as a witness, a message is sent to the Senate by the House requesting the Senate to give leave to the Senator to attend for examination. ⁹ Upon receiving such a request the Senate may authorise the Senator to attend. ¹⁰ In 1901 the Senate ordered that a Senator have leave to give evidence before the Select Committee on Coinage if that Senator thought fit ¹¹ and, in response to a request from the House of Representatives, ¹² the Senate has granted leave to authorised Senators to attend and give evidence before the House of Representatives Committee of Privileges. ¹³ The Senators appeared and gave evidence having sworn oaths/made affirmations. ¹⁴ On 7 March 2001 the Senate gave leave to seven Senators, members of the Joint Standing Committee on Foreign Affairs, Defence and Trade, to appear before the House Privileges Committee, ‘subject to the rule, applied in the Senate by rulings of the President, that one House of the Parliament may not inquire into or adjudge the conduct of a member of the other House’. ¹⁵

Using similar procedures to those followed by the House, ¹⁶ the Senate has requested that Members of the House be given leave to attend and be examined by Senate committees. House standing order 252(a) provides that if the Senate asks the House by message for a Member to attend before the Senate or one of its committees, the House may authorise the Member to attend, provided the Member agrees. The House has several times resolved to grant such leave to Members, adding the qualification that the Member may attend and give evidence if the Member thinks fit. ¹⁷ In 1913 the House considered a request from the Senate that six named Members, including the Prime Minister, be granted leave to be examined as witnesses before the Senate Select Committee on General Elections. On motion moved by the Prime Minister, the House resolved to grant such leave only to three of the Members, all of them opposition Members. The Prime Minister explained that the three government Members whose attendance had been requested were not included in the motion because they did not desire to attend. ¹⁸ After the receipt of the message from the House was announced in the Senate, the President stated in answer to a question:

The Senate sent a request to the House of Representatives; but it is no part of our duty, nor have we any right to dictate to the House of Representatives as to what it should or should not do. We have no right to ask it to give reasons as to why it has complied with a part and not the whole of our request. ¹⁹

A similar request for the attendance of Members before another Senate committee was received later on the same day and was dealt with in the same manner. ²⁰

I n 1993 the Senate requested the House to require the attendance of the Treasurer before a Senate select committee. ²¹ The request was considered by the House, but rejected, in the following terms:

That the House of Representatives . . . :

1. notes that the Senate’s request that the House require the attendance of a Member of the House before a committee of the Senate does not conform with the practice of requesting the House to give leave for a Member to attend;
2. resolves that it is not appropriate that a Minister of this House should appear and give evidence before a committee of the Senate against the Minister’s will;
3. further resolves that it is not appropriate that any Member of the House of Representatives be required to appear before a committee of the Senate against the Member’s will;
4. confirms that it is for each Member to determine whether the Member thinks fit to appear before a committee of the Senate; and
5. declines to require the Honourable John Dawkins MP to attend before the Senate Select Committee on the Functions, Powers and Operation of the Australian Loan Council. ²²

In 1901 the House granted a Member leave, if he thought fit, to attend and be examined by a select committee of the Victorian Legislative Assembly. ²³

The Speaker has declined an invitation to make a submission to the Senate Committee of Privileges in connection with an inquiry into matters arising at a joint meeting of the Houses held in October 2003, instead referring the committee to a statement he had made in the House. ²⁴ In 2005 Speaker Hawker made a written submission to the Senate Committee of Privileges in connection with a general inquiry into the unauthorised disclosure of committee information.

For example, Hon. J. Anderson, Deputy Prime Minister and Minister for Transport and Regional Services, meeting with members of Transport and Regional Services Committee, March 2003.

May , 23rd edn, p. 760.

S.O. 249(b).

E.g. PP 77 (1994) 3.

J 1920-21/153; S. Deb. (15.9.20) 4531.

Odgers , 6th edn, pp. 871-2, and 11th edn, pp. 423-7.

Senate Standing Committee on Finance and Government Operations, The Australian Dairy Corporation and its Asian subsidiaries , PP 153 (1981) 149-51, 166.

H. R. Deb. (7.5.81) 2110.

S.O. 251; e.g. VP 1993-95/596; VP 1998-2001/2075.

E.g. J 1993-95/1077-8.

VP 1901-02/109, 113; J 1901-02/88.

E.g. VP 1985-87/1365; VP 1993-95/596.

E.g. VP 1985-87/1430; H.R. Deb. (17.2.87) 147; J 1993-95/1077-8.

PP 77 (1994) 3.

J 1998-2001/4043; VP 1998-2001/2157.

Senate S.O. 178.

VP 1904/100, 114; VP 1909/189.

VP 1913/130; H.R. Deb. (31.10.13) 2830-1.

S. Deb. (31.10.13) 2824.

VP 1913/134; H.R. Deb. (31.10.13) 2843.

J 1993-95/565-6.

VP 1993-95/342-3.

VP 1901-02/149.

VP 2002-04/1402-3 (papers tabled).