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Title

Ch18 Parliamentary committees / CONDUCT OF INQUIRIES / Public interest immunity / Government guidelines

Database

House Practice

Date

01-05-2005

Source

House of Reps

Parl No.

41

Chapter

Parliamentary committees

Chapter No.

Chapter 18

Page

661

Section No.

 

System Id

procedural/practcer/chapter18.60.doc


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Ch18 Parliamentary committees / CONDUCT OF INQUIRIES / Public interest immunity / Government guidelines



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House of Representatives                                Ch 18                                                 p 661

 

Parliamentary committees / CONDUCT OF INQUIRIES / Public interest immunity

 

Government guidelines

The principles upon which Governments have proceeded to deal with public interest immunity were summarised by Greenwood and Ellicott. They drew on two documents in particular, namely, a letter of November 1953 to the Joint Committee of Public Accounts from the Prime Minister and a letter of September 1956 from the Solicitor-General to the Senate Regulations and Ordinances Committee. 1 These principles have been substantially incorporated in the Government’s Guidelines for official witnesses before parliamentary committees and related matters . Key points in the guidelines include the following:

  • the privilege involved is not that of the witness but that of the Crown;

  • if a witness attends to give evidence on any matter in which it appears that issues of public interest immunity may be concerned, the witness should endeavour to obtain instructions from a Minister beforehand as to the questions, if any, which the witness should not answer;

  • if questions arise unexpectedly in the course of an inquiry, the witness should request postponement of the taking of evidence to enable the Minister to be consulted;

  • if the Minister decides to claim immunity, normally the Minister should write to the committee chair to that effect;

  • should the committee regard information about which a claim for public interest immunity may be made as necessary, consideration should be given to agreeing on a means of making it available in some other form, such as private evidence; and

  • before deciding whether to grant a certificate, the Minister should carefully consider the matter in the light of the relevant principles. 2

    • It needs to be emphasised that the fourth point, regarding a letter from a Minister to a committee, simply recognises that it is the Minister, not a staff member, who may claim public interest immunity. In this respect it therefore represents sound practice. However, as already indicated, a committee may negotiate further with a Minister 3 or the Prime Minister. Ultimately it is, in principle, open to the committee to challenge the Minister’s claim in the House by raising the Minister’s or the Government’s behaviour as a possible contempt of the House. 4



    Both are quoted in full in Odgers , 6th edn, pp. 830-44.



    Parliamentary committees: powers over and protection afforded to witnesses , Paper prepared by I. J. Greenwood and R. J. Ellicott, PP 168 (1972) 37-8.



    See for example efforts by the Joint Committee on Migration Regulations to gain access to departmental information and the compromise whereby the committee chair and deputy chair were given access to the papers. Committee minutes of proceedings 19.7.90, 4.9.90, 18.10.90.



    And see Senator Greenwood’s later view on the conclusiveness of a Minister’s certificate, PP 215 (1975) 51.