This Memorandum sets out guidelines for Ministers in their dealings with General Purpose Standing Committees of the Legislative Council.

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. 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.

The attached Guidelines also deal with the situation where officers working within a Minister's portfolio are requested or summoned to attend a Committee hearing. These Guidelines are complementary to the ‘Guidelines for Public Sector Employees Dealing With the Legislative Council's General Purpose Standing Committees'.

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

Bob Carr
Premier

GUIDELINES FOR MINISTERS DEALING WITH THE LEGISLATIVE COUNCIL'S GENERAL PURPOSE STANDING COMMITTEES

Background

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 have also been given 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.

Appearance of Ministers before Committees

• The resolution which establishes the General Purpose Standing Committees 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 General Purpose Standing 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.

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.
• Any written submission is to be approved by the Minister and where it would 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 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 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.
• When 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.
• 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. If the Minister considers that a summoned document should not be produced, it would be advisable to seek legal advice from the Crown Solicitor.