This Memorandum sets out guidelines for government sector employees in their dealings with Portfolio Committees of the Legislative Council. Independent statutory office holders who are not subject to the direction and control of Ministers and employees of State Owned Corporations are encouraged to take these guidelines into account, and adapt them as appropriate.
On 6 May 2015, the Legislative Council resolved to establish six General Purpose Standing Committees which reflect Government Ministers' portfolio responsibilities. On 7 March 2017, the Legislative Council agreed to amend the resolution of 6 May 2015 to change the Committees' names and to reflect changes to Government Ministers’ portfolio responsibilities. The Committees are now known as Portfolio Committees.
These Committees have been given the function of inquiring into and reporting on any matter referred to them by the House as well as the expenditure, performance or effectiveness of any government department, statutory body or corporation, relevant to the portfolios allocated to the Committee. The Committees claim broad powers to send for and examine persons, papers, records and things, and to request the attendance of and examine members of the Legislative Council.
These guidelines deal with the situation where government sector employees are requested, or summoned, to attend a Committee hearing. They deal with the giving of oral evidence and written submissions. They also address requests for the production of documents. These guidelines update the guidelines previously issued under Premier's Memorandum M1998-09.
Ministers should ensure that all government sector employees within their portfolios are made aware of these Guidelines and that they are are made available for those who are to give written or oral evidence to a Committee. I have also separately issued revised Guidelines for Ministers dealing with the Legislative Council's Portfolio Committees (M2017-02) and rules and procedures for making State submissions to inquiries (M2017-03).
Gladys Berejiklian MP
GUIDELINES FOR GOVERNMENT SECTOR EMPLOYEES DEALING WITH THE LEGISLATIVE COUNCIL'S PORTFOLIO COMMITTEES
Application of guidelines
- These guidelines are directed at government sector employees, including those employed by the Public Service, the Teaching Service, the NSW Police Force, the NSW Health Service and the Transport Service of New South Wales. The use of the term ‘officer' is intended to cover all such employees, including temporary employees.
- It is also recommended that independent statutory office holders who are not subject to the direction and control of Ministers and employees of State Owned Corporations take these guidelines into account and where necessary adapt them to make them compatible with their governing statutes.
Action on receiving a request or summons from a Portfolio Committee
- When a request or summons for documents or attendance at a Committee hearing is received from a Portfolio Committee, the Minister must be informed. It is up to the Minister to decide whether a response is to be made. If the Minister decides that the Minister or officers should attend a Committee hearing, or if officers have been summoned to attend, then, where possible, a written submission should be made to the Committee by the agency. Oral evidence should be based on the written submission.
- Written submissions to Parliamentary committees must follow the rules and procedures set out in Premier's Memorandum M2017-03 Submissions to Inquiries. Generally, submissions prepared by the agency should address factual matters and should not advocate policy positions or identify the considerations on which a Government decision was based. Submissions must be approved by the Minister and reviewed and cleared by the Premier or her delegate (or Cabinet, where appropriate) in accordance with M2017-03 before being sent to a Committee.
- Where it is anticipated that the matters to be raised at a Committee hearing are of such a sensitive nature that it would be desirable to deal with them in camera, the Minister should be alerted so that he or she may request the Committee to hear the matter in camera. If the Minister is not in attendance and a sensitive matter arises which in the opinion of an officer should be heard in camera, the officer should make this request to the Committee.
- Where a request has been made for officers to attend a Committee hearing to give oral evidence, and the Minister has agreed that they should attend, the Minister is to nominate the appropriate officers.
- The Committees have power to summon the attendance of witnesses (other than Members of Parliament). If an officer is summoned, the officer should inform the Minister and discuss with the Minister, or his or her delegate, the approach to be taken by the officer, with the assistance of advice from the Crown Solicitor on privilege, where needed.
Oral evidence before Portfolio Committees
- Officers should only give evidence of a factual nature and should refer questions seeking opinions or judgements of a political nature to the Minister (when in attendance) or take them on notice for a written response from the Minister.
- Where a question falls within the administration of another portfolio, the officer should request that it be referred to the appropriate body.
- The Committees only have power to ask ‘lawful questions'. Failure to answer a question which is not a ‘lawful' question cannot result in the punishment of the witness. A question will not be a ‘lawful question' if the answer is privileged (e.g. legal professional privilege, public interest immunity - which includes the confidentiality of Cabinet documents - or the privilege against self-incrimination) or if the question falls outside of the Committee's terms of reference. Officers should familiarise themselves with the law of privilege before attending a Committee hearing.
- If an officer considers that the answer to a question is likely to be privileged (by reason of public interest immunity, legal professional privilege or any other form of privilege) the officer should request that the Committee defer questioning on that subject or adjourn until the officer can obtain legal and Ministerial advice.
- If an officer is under a statutory obligation not to reveal information which is the subject of a question, a request should be made to the Committee to defer questioning on the subject or adjourn until the officer can obtain legal advice.
- If the Committee insists on an answer to a question where privilege is claimed, or the disclosure of the information is prohibited by statute, the officer is to refer the question to the Minister or take it on notice for answer by the Minister. If the Minister is not in attendance, the officer should defer answering the question until he or she has the opportunity to discuss the issue with the Minister (or his or her delegate) and seek advice from the Crown Solicitor.
Production of documents
- The Parliamentary Evidence Act 1901 does not give committees the power to send for documents. This power is claimed by Legislative Council Standing Order 208. While the High Court has held that the Legislative Council has the power to compel the Executive Government to produce State papers (Egan v Willis (1998)), it is arguable that it is not ‘necessary' to give such a power to a committee. The extent of this power is therefore uncertain and may be challenged where necessary.
- Where a Committee requires the production of a document which is likely to be subject to privilege or where it is anticipated that at the Committee's hearing the production of documents will be required in relation to potentially privileged matters, advice should be sought from the Crown Solicitor as to whether privilege can be claimed. If so, the Minister should be advised and a determination will need to be made as to whether privilege should be claimed in the particular circumstances.
- Officers should also appreciate that any document brought to a Committee hearing, or referred to in the course of the hearing, could be called upon for production. If a Committee requires an officer to hand over documents at a hearing, the officer should request that the Committee refer the matter to the relevant House for a formal order to be made pursuant to the Standing Orders. Production without such an order would be voluntary and would not protect the officer from breaching relevant secrecy or privacy provisions.
- Other statutory Parliamentary Committees (such as the Parliamentary Joint Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission) have express powers conferred by an Act to require documents or things to be produced.
Obligation to provide accurate and complete information
- Officers are reminded of their obligation to provide accurate and complete evidence when participating in parliamentary inquiries. The offence of giving false evidence may lead to the imposition of penalties of up to five years imprisonment under section 13 of the Parliamentary Evidence Act. Care and attention should be taken in preparing and providing information.
Who needs to know and/or comply with this?
- Executive agencies related to Departments
- Advisory Entities (including Boards and Committees)
- Separate agencies
- State Owned Corporations
- Statutory Authorities/Bodies
- Subsidiaries of the NSW Government established under the Corporations Act
- Councils under the Local Government Act
- Not Mandatory
- Date Issued
- Apr 3, 2017
- Review Date
- Jul 30, 2024
- Replaced By
- Publishing Entity
- Department of Premier and Cabinet
- Issuing Entity