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. The Committees have not been given the power to compel the attendance of members of the Legislative Assembly (including Ministers who are members of that House). Ministers who are members of the Legislative Council may be ‘requested' to attend, but cannot be compelled to attend upon a Committee, except by resolution of the House. The Guidelines note that it is up to Ministers to decide whether it is appropriate and desirable to attend a Committee hearing.

These guidelines deal with the situation where Ministers are requested to attend a Committee hearing and where government sector employees working within a Minister's portfolio 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 M1998-10 and are complementary to the updated Guidelines for Government Sector Employees dealing with the Legislative Council's Portfolio Committees (M2017-01) and rules and procedures for making State submissions to inquiries (M2017-03).

I encourage all Ministers to apply these guidelines, as appropriate.

Gladys Berejiklian MP

Premier

GUIDELINES FOR MINISTERS DEALING WITH THE LEGISLATIVE COUNCIL'S PORTFOLIO COMMITTEES

Appearance of Ministers before Committees

• The Legislative Council's Standing Order 208 does not include the power to compel or request the attendance of members of the Legislative Assembly (including Ministers). A Minister who is a member of the Legislative Assembly may, however, volunteer to attend a committee hearing if he or she considers it appropriate and desirable to do so in the particular circumstances.
• Ministers of the Legislative Council may be ‘requested' to attend by a Portfolio Committee, but cannot be compelled to attend, except by resolution of the House. It is up to the Minister to decide whether it is appropriate and desirable to attend a committee hearing.
• Ministers should be aware that if they voluntarily appear before a Committee, the provisions of the Parliamentary Evidence Act 1901 concerning answering questions may apply to them. 
• In particular, Ministers 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.

Decisions by Ministers on receiving a request from a Committee

• Ministers should inform their Departments and any agencies or statutory bodies within their portfolio that any requests they receive for submissions or attendance before a Committee or any summons to attend or produce documents, should be referred to the Minister.
• The Minister should assess whether a response should be made to a request for a submission or to attend a hearing. 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 Department. 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. 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 is to request the Committee to hear the matter in camera.
• Where a request is 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.
• When an officer has been summoned, or it is anticipated that the Committee will ask questions that would require an officer to reveal privileged information, the Minister or his or her delegate should discuss with the officer the approach to be taken by the officer, with the assistance of advice from the Crown Solicitor on privilege, where needed.

Committee hearings

• 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. If a Minister is in doubt as to whether privilege can be claimed, advice should be sought from the Crown Solicitor.
• If a Committee insists that an officer answer a question, the officer is to refer the Committee to the relevant Minister if he or she is in attendance, or seek an adjournment or deferral of questioning to allow the officer to discuss with the Minister the approach to be taken. The Minister should seek advice from the Crown Solicitor if there is uncertainty as to the application of the law of privilege.

Production of documents

• The Parliamentary Evidence Act 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. If the Minister considers that a summoned document should not be produced, it would be advisable to seek legal advice from the Crown Solicitor.
• It may be preferable to 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 provide protection 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.