This Memorandum sets out guidelines for public sector employees, including those employed by Departments, agencies and public authorities, in their dealings with General Purpose Standing 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 should also be encouraged to take these Guidelines into account, and adapt them as appropriate.

On 7 May 1997 the Legislative Council resolved to establish five General Purpose Standing Committees which reflect Government Ministers' portfolio responsibilities. These Committees have been given the function of inquiring into and reporting upon any matter referred to them by the House as well as the expenditure, performance or effectiveness of any department, statutory body or corporation and any other matter referred to in its annual report.

The Legislative Council also resolved to confer upon the Committees 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 public sector employees are requested, or summoned, to attend a Committee hearing. They also address requests for written submissions or the production of documents.

Ministers should ensure that all public sector employees within their portfolios are made aware of these Guidelines and that copies are made available for those who are to give written or oral evidence to a Committee.

Bob Carr
Premier

GUIDELINES FOR PUBLIC SECTOR EMPLOYEES DEALING WITH THE LEGISLATIVE COUNCIL'S GENERAL PURPOSE STANDING COMMITTEES

Purpose and application of guidelines

On 7 May 1997 the Legislative Council passed a resolution to establish five General Purpose Standing Committees which reflect Government Ministers' portfolio responsibilities. These Committees have been given the function of inquiring into and reporting upon any matter referred to them by the House as well as the expenditure, performance or effectiveness of any department, statutory body or corporation and any other matter referred to in its annual report. The Committees claim broad powers to send for and examine persons, papers, records and things.

These guidelines are directed at public sector employees, including those employed by Departments, agencies and public authorities. 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 Committee

• When a request or summons for documents or attendance at a Committee hearing is received from a General Purpose Standing 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 Department. Oral evidence should be based on the written submission.
• Written submissions prepared by the Department 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 before being sent to a committee. If the submission is likely to impact upon other portfolios or affect the whole of government, the Premier's approval of the submission must be sought.
• 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 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 does not give committees the power to send for documents. This power is claimed by the resolution establishing the Committees, and is based upon what is ‘necessary' to support the existence and functions of the House. 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 determine 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.