Public sector officers providing evidence to parliamentary committees

A public sector officer who is requested to provide evidence to a parliamentary committee should:

• immediately advise their chief executive officer who can ensure the Minister’s office is appropriately informed
• be aware of their agency’s procedures for interacting with a committee
• consider whether other public sector agencies should be consulted, particularly when they also have been requested to provide evidence
• consider whether the committee might request sensitive or privileged information and, before providing the evidence, contact the committee secretariat to clarify whether evidence is to be considered publicly or confidentially
• seek advice from their agency’s in-house legal team or the State Solicitor’s Office when unsure if the information can be released.

A public sector officer preparing evidence should note the obligation to provide:

• full and accurate information to assist parliamentary committees unless there are reasons preventing disclosure as outlined later in this guidance
• details of administrative arrangements and processes that support government, while it is the Minister’s role to comment on the merits of government policy.

Parliamentary committees are established to assist the Parliament to undertake its key functions which include:

• making laws
• publicising issues
• scrutinising the government’s administrative actions and expenditure.

Committees have the same authority as Parliament and must be regarded with the same respect as Parliament.

Each committee’s general terms of reference are set by the House. A committee may have more specific terms of reference when inquiring into an issue.

Information on Parliament: Legislative Assembly | Legislative Council

Information on parliamentary committees: Legislative Assembly | Legislative Council

Generally, a committee requests information relevant to its work but it can summon any person under the Parliamentary Privileges Act 1891 to compel production of evidence or attend a hearing.

Failure to comply with a summons may lead to a finding of contempt of Parliament under the Parliamentary Privileges Act 1891.

The proceedings of committees are subject to the same parliamentary privileges and immunities as Parliament itself so evidence provided to a committee cannot be used in court or tribunal proceedings against the individual who provided the evidence. 

More on parliamentary protections: Legislative Assembly | Legislative Council

Ministers are accountable to Parliament for the exercise of their ministerial authority, and responsible for advocating and defending the merits of government policy.

Public sector officers are responsible to ministers for the administration of government policy, programs and services and evidence to a parliamentary committee on behalf of their minister.

Evidence may describe policies and associated administrative arrangements but it is the role of a minister, not a public servant, to comment on the merits of government policies.

Ministerial direction

Public sector officers must comply with lawful directions from ministers. In some circumstances, a minister may direct an officer to not provide evidence or answer a question. This may occur when the issue is more appropriately handled by a minister or when there is a question about whether information is privileged or otherwise immune.

An officer should advise the committee of a minister’s direction before appearing as a witness or providing a submission of written evidence. The direction should be issued by a minister in writing and a copy provided to the committee.

A committee’s request for information or attendance at a committee hearing are usually made to either:

• the relevant CEO or statutory office holder
• an individual public sector officer identified as a person who could assist the committee.

If an officer directly receives a request for information or attendance, they should immediately advise their CEO and minister. The only exception is when they have been issued a summons that specifically prohibits them from sharing this information.

If they receive a summons, they should also immediately bring this to the attention of their in-house legal team or the State Solicitor’s Office. 

The CEO may need to liaise with the committee to confirm the availability of an officer with sufficient knowledge and authority to best assist the committee. 

A written submission made on behalf of an agency should be approved by the CEO and a copy sent to the minister before being provided to the committee.

If a matter before a committee involves multiple agencies, the agency may liaise with the Department of the Premier and Cabinet and relevant agencies to consider whether a coordinated response is more useful to assist the committee.

The agency, or central coordinating agency, should contact the committee if additional time is required to finalise a submission.

For advice on preparing written submissions to an Australian Parliamentary inquiry, or inquiries conducted by the Australian Government more broadly, please review the Premier’s Circular 2021-10 on Making Written Submissions to National Inquiries.

Committee hearings are usually held in public, with the public and media free to attend. Public hearings are usually webcast and can be viewed on the Parliament’s website.

The committee may allow witnesses to provide evidence confidentially at a closed hearing or ‘in camera’.

Evidence provided in a closed hearing is confidential unless the committee itself resolves otherwise. A closed hearing transcript may not be disclosed for at least 10 years.

Evidence provided in camera may only be disclosed by the committee with the witness’s written approval. Without approval, it remains confidential for 30 years.

If an officer is asked to appear before a committee, the committee should provide:

• its terms of reference
• information about committee procedures when appearing as a witness
• a statement of the matters expected to be dealt with during the officer’s appearance (where appearance is before a committee of the Legislative Assembly).

If the officer does not receive this information, they should request it from the committee.

If the officer is unable to attend at the proposed time, they should notify the committee as soon as possible. The committee may make an alternative time for attendance.

The officer should prepare for the hearing by considering lines of questioning, relevant material and any submission provided by the agency. The committee’s secretariat may assist with identifying issues the committee intends to raise.

When the information the officer intends to provide is confidential, the officer may request the committee receive the evidence in a closed hearing or in camera. The decision is at the committee’s discretion.

If, during a hearing, the officer is unsure whether they should provide specific information, they should request an adjournment to obtain advice from their CEO, the State Solicitor’s Office or their agency’s in-house legal team. 

Correction of evidence

Hansard records all evidence at a committee hearing and the officer is provided a draft transcript for minor corrections to be made.

If the officer considers the evidence provided has not fully addressed the matters under consideration or requires clarification they should approach the committee’s secretariat to request an opportunity to provide supplementary information.

A committee can only pursue matters within its terms of reference. The officer is not required to disclose information or produce documents beyond the terms of reference. 

The officer is not required to disclose information relating to a matter which is another agency’s responsibility.

Sensitive information

In the event sensitive material is sought by the committee, the agency should advise the committee as soon as possible and request the material be considered confidentially.

The agency’s advice to the committee should clearly set out the reasons for sensitivity. Note that maintaining confidentiality remains at the committee’s discretion.

In certain circumstances, evidence may be protected and cannot be provided to a committee. This may include evidence subject to:

• public interest immunity when disclosure is likely to harm the public interest
• Cabinet confidentiality which aims to protect the deliberations of Cabinet
• legal professional privilege such as communications between a client and their legal advisor for the dominant purpose of the legal adviser providing legal services
• confidential information such as commercial-in-confidence activities
• statutory constraints such as secrecy provisions in some legislation that protect certain information from disclosure.

In the event the officer considers any of the above may apply, advice should be sought immediately from the agency’s in-house legal team or the State Solicitor’s Office.

A claim that evidence cannot be provided should be raised with the committee, preferably in a letter from, in the first instance, the CEO to the committee’s chair, setting out the grounds for the claim. 

Whether the claim is accepted is a matter for the committee, and ultimately the House, to determine. When a committee does not agree that the information sought is protected, it may pursue the issue with the minister.

The officer should consider whether it is possible to provide the committee with a different version or form of the evidence that does not disclose protected material, for example, providing redacted documents, or appearing at a closed or ‘in camera’ hearing.

In rare circumstances, a committee may permit an officer to appear with legal counsel, although it can only be to provide advice and not to speak on their behalf. Whether the State Solicitor's Office can appear as counsel depends on the specific circumstances of the hearing.

If the officer engages their own legal counsel they are responsible for legal costs unless otherwise approved.

Public sector officers can provide submissions or evidence to parliamentary committees in their personal capacity provided it is clearly separated from their role as public sector officers.

When providing evidence in a personal capacity, they cannot disclose official information obtained in the course of their employment.

In the event the evidence is likely to attract attention, they should consider notifying their CEO of their intention to provide evidence in their personal capacity.