Appendix 1 - Natural Justice

The topics referred to in this appendix are covered in the guidance published by the Office of the Clerk of the House of Representatives entitled: Natural Justice Before Select Committees: A Guide for Witnesses.

The Standing Orders provide some protections to persons who appear as witnesses before a select committee or whose reputation may be impugned by the proceedings of, or evidence given before a committee.

These provisions may be of relevance to officials whose personal conduct is under scrutiny by a committee. It is possible that this could occur in the context of a committee's review of departmental or agency performance, or when considering legislation, although it is more likely during a special inquiry.

Alleged Criminal Activity

A committee cannot inquire into, or make findings in respect of, allegations of crime by people who are "named or otherwise identifiable", without the express authority of the House. However, this does not prevent a committee making general inquiries into alleged criminal activity (SO 200).

People Whose Reputation May be Seriously Damaged by Committee Proceedings

The Standing Orders provide certain protections for people whose reputation may be seriously damaged by a select committee inquiry, whether or not that person appears as a witness. Such a person may:

• Complain of apparent bias on the part of a member (SO 235).²⁶
• Respond to an allegation by written submission and appearance before the committee (SO 240).
• Ask that further witnesses give evidence in his or her interest (SO 240).
• Request a copy of all information (except secret evidence) a committee possesses concerning them (SO 237).
• Respond to the committee's findings where their reputation would be seriously damaged by those findings, before a committee reports to the House (SO 249).

For their part a committee:

• Can hear evidence that may contain allegations or seriously damage a person's reputation in private or secret (SOs 236 and 221).
• Will provide or inform a witness of any material in the committee's possession that contains a serious allegation (SO 237).
• May return written evidence and request that it be resubmitted without the offending material, expunge that evidence from any transcript of evidence, or seek an order of the House preventing the disclosure of evidence. This is when the committee believes the evidence is not relevant to its proceedings or that the risk of harm to that person exceeds the benefit of the evidence. (SO 238).
• Must acquaint a person whose reputation may be seriously damaged by the committee's findings, of the nature of those findings, and take into account any response by that person before reporting to the House (SO 249).
• May return to the witness or expunge from any transcript of proceedings any evidence or statement that it considers to be irrelevant to its proceedings, offensive or possibly defamatory (SO 218).

Witnesses

Standing Orders provide a number of protections for witnesses who appear or will appear before a select committee. Witnesses may avail themselves of protections available to people whose reputation may be seriously damaged by committee proceedings, and:

• Complain of apparent bias (SO 235);
• Apply to have some or all of their evidence heard in private or secret, giving reasons for such an application (SO 222);
• Raise matters of concern relating to the evidence they are to give (SO 225);
• Make a written submission before appearing to give evidence (SO 217);
• Be informed of, or request a copy of all material, evidence (except secret evidence), records or other information which the committee possesses concerning that person (SO 237);
• Be accompanied by counsel (SO 230);²⁷
• Object to a question on the grounds of relevance (SO 228);
• Object to answering a question. The committee will invite the witness to give the reasons why they object, and the committee may still require an answer to be given. A refusal to answer may be reported to the House (SO 229); and
• Have the opportunity to correct errors in any transcriptions of their evidence (SO 232).

²⁶ Apparent bias occurs when a Member has made an allegation of crime or expressed a concluded view on any conduct of a criminal nature relating to that person (if the complaint is upheld the member will not participate in proceedings relating to that person).

²⁷ Counsel may:

· Make written submissions to the committee on the procedure to be followed....

· With the committee's agreement, address the committee on the procedure to be followed by the committee before the counsel's client is heard

· Object to a question... on the ground that it is not relevant

· Object to counsel's client answering a question (see SO 229), and when the client's reputation may be seriously damaged, ask that further witnesses give evidence in the client's interest.