Interference with and offences by witnesses The ‘public servant’s dilemma’* *G Lindell, ‘Parliamentary Inquiries and Government Witnesses’ (1995)
Select Committee on ‘Public Land’ • Committee established by Council to inquire into sale or alienation and development of ‘public land’ • Intervention by Attorney-General • Executive disputed Committee’s definition of ‘public land’. Public land cannot be sold and is different to ‘government land’ (see p. 4 of Paper)
Key Points • Public servants invited, no summons • Public servants appeared, but declined to answer questions about ‘government land’ • Witnesses made no distinction between questions seeking factual information and policy information when refusing to answer
Yes Chairman • Sir Humphrey meets the Chair A short re-enactment of actual hearing with the Secretary of the Department of Sustainability and Environment
Terms of Reference • Are there grounds for the Executive to withhold information on the basis of interpretation of terms of reference? • The Council’s inquisitorial powers more generally – to inquire into matters of public interest in its broadest sense (see pp. 4 -6 of Paper)
Terms of Reference cont’d • Was the Committee obliged to have its reference ‘clarified’ by the House? • The Committee determines ‘relevance’, - exclusive cognisance over its proceedings • Clerk’s advice: committee to determine, but may ask House to clarify or reaffirm reference if inquiry “being adversely affected” (see pp. 6 -8 of Paper)
Executive Privilege • Does the dispute fit within typical Executive claims of – Cabinet in confidence – Public interest immunity / Executive privilege – Statutory secrecy / commercial in confidence – Legal professional privilege? • Does it matter: are claims of public interest a matter for a Committee and/or House anyway?
Accountability of public servants “I am a representative effectively of the executive. That is the basis on which officers appear. They appear to advise on behalf of the government. ” Evidence to Committee from Secretary of Department (see pp. 9 -10 of Paper)
Parliament’s right to a public justification by officials “The original idea was not that parliament had any formal authority to exercise managerial power over public officials, but that parliament had a right to require a public justification from those officials responsible for management of expenditure” J Uhr, Deliberative Democracy in Australia (see pp. 10 -11 of Paper)
The public servant’s dilemma • Ministers believe only they are accountable to Parliament • Public servants’ accountability to Parliament exposes them to contempt • What is the maintenance of ‘confidence’ or ‘confidentiality’ between public servant and Minister?
Public servant’s dilemma (cont’d) • Superior orders are not a defence in law (Lindell) • the Executive has no power to excuse its public servants from their obligation to comply with the law High Court in A v Hayden ([1984] • Public servant’s ‘higher duty to obey the law’ (Lindell) (see pp. 12 -13 of Paper)
Questions • To what extent, if any, should the ‘public servant’s dilemma’ guide the response of a committee and House to issues of contempt? • Does the fact that the Select Committee did not go back to House for clarification of its terms of reference matter?
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