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House of Representatives                                Ch 19                                                 p 748

Procedures

The practice of the committee is to write to persons from whom it may wish to receive evidence, providing relevant information, such as the terms of the matter referred to the committee, extracts from Hansard, any documents presented in connection with the matter and information on the committee. Normally persons are invited to make a written submission. ¹ Having considered written submissions received, the committee may then invite persons to appear before it. It has the power to compel persons to attend before it and to require that documents be produced. ² Where relevant, written submissions from one party may be published to another party. ³

It is usual for the Clerk of the House to prepare a memorandum for the assistance of the committee. The Clerk is acknowledged as the committee’s principal adviser on the principles and law of parliamentary privilege and has given evidence to, or conferred informally with, the committee at its request in respect of its inquiries. The Clerk on other occasions has been permitted to attend meetings as an observer. The Speaker and law officers of the Crown have also given evidence to, or conferred informally with, the committee. During its 1980 inquiry into the use of House documents in the courts, a leading barrister served as a specialist adviser to the committee.

Since 1987 the practice of the committee has been to permit witnesses to be accompanied by an adviser when giving evidence. Normally witnesses have chosen to be accompanied by lawyers, ⁴ but on other occasions persons such as a Member’s assistant ⁵ or another Member ⁶ have accompanied witnesses. Witnesses are permitted to consult freely with their advisers when giving evidence, but advisers are not permitted to make submissions themselves or to question other witnesses. In 1955 ( Browne/Fitzpatrick Case ) the committee heard counsel on his right to appear on behalf of a witness and on the committee’s authority to administer an oath. The committee did not agree to the request to appear, and witnesses were examined on oath. ⁷

The committee has often taken evidence in private. The question of taking evidence in public had been raised over the years by Members of the committee, but it was not until 1987, during its inquiry into matters concerning the Joint Select Committee on Telecommunications Interception, that the committee took evidence in public. ⁸ Prior to the 1987 decision, a copy of the transcript of evidence had sometimes been published in full. ⁹ In the Browne/Fitzpatrick Case the committee published extracts of the evidence in its report. The minutes of proceedings of the committee are always presented with its report. ( And see p. 751 re release of the committee’s records.)

Witnesses, including Members, are normally examined on oath or asked to make an affirmation. Before 1987 witnesses had not been permitted to be present when other witnesses were giving evidence. The cross-examination of witnesses has never been permitted. In the ‘Daily Telegraph’ Case (1971), an ‘accused’ witness was expressly refused permission to be present when other witnesses were giving evidence. ¹⁰ The practice of the committee since 1987 has been, even where evidence is taken in private, to publish that evidence to another party where the other party is seen as having an interest in the evidence. The other party may be invited or required to appear. ¹¹

The committee is not bound by the rules of evidence applying in courts, although the practice of the committee is to avoid receiving hearsay evidence, and to advise witnesses that it wishes to obtain information from witnesses about matters within their direct or personal knowledge. Witnesses are also advised that they can ask the committee to take evidence in private at any stage if they wish to, and the request is then considered. Witnesses are given the opportunity to make an opening statement if they wish before questioning commences and, at the conclusion of questioning, are given a further opportunity to make additional comments. ¹²

During the course of inquiries into matters concerning joint committees the committee has advised the House by special report or statement that it wished to be able to take evidence from Senators, and it proposed that the House should communicate with the Senate by message asking it to grant leave for Senators to appear. This advice has been acted upon, and Senators have been given leave to appear if they thought fit. ¹³ The Senate has added qualification to a motion authorising Senators to attend, drawing attention to the principle that one House should not inquire into or adjudge the conduct of a member of the other House. ¹⁴

It is traditionally observed that, in the consideration and determination of privilege matters, members of the committee do not act along party lines. In reaching a decision as to whether a breach of privilege or contempt had been committed in the Daily Telegraph Case , two earlier decisions of the committee were recommitted due to the votes being taken when certain members of the committee were absent. ¹⁵

PP 456 (1991) (minutes), but see also PP 78 (1994) (minutes).

S.O. 236.

PP 456 (1991) (minutes).

PP 78 (1994) (minutes).

PP 77 (1994) (minutes).

PP 498 (1989) (minutes).

H of R 2 (1954-55) 9-10.

PP 135 (1987) 6.

‘Daily Telegraph’ Case (1971), PP 242(1971) 9, 39; ‘Daily Mirror’ Case (1981), PP 202 (1981).

PP 242 (1971) 9.

PP 78 (1994) (minutes).

E.g. Telecommunications Interception Case (1986-87), Transcript of evidence, pp. 175-9.

House of Representatives Committee of Privileges, Special report dated 26 November 1986, relating to the matter referred to the committee on 18 November 1986 ; VP 1985-87/1361, 1365, 1430; J 1985-87/1576; VP 1993-95/596, 649; PP 77 (1994).

VP 1998-2001/2157.

PP 242 (1971) 13-14, 19-20.