Pautas de secuencia en los ámbitos conceptuales y contenidos para el área de Ciencias Sociales

A. Constitutional Powers

The general power of the Parliament to conduct inquiries through the appointment of Senate committees, and to determine the power, privileges and procedures of these committees, is derived from section 49 of the Constitution which states:

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the House of Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

Parliament has yet to declare what its powers, privileges and immunities are. Nevertheless, Parliament and its committees derive from section 49 two primary powers:

1. Investigatory power - this provides for committees to send for witnesses and papers.

2. The privilege of freedom of speech and open debate (derived from article 9 of the Bill of Rights).

These two powers provide the legal basis for the workings of committees. The extent of these powers is not

altogether clear with the Executive taking a narrower interpretation of these powers than Parliament, and in particular the Senate.

These specific powers of Parliament and its committees, through the Standing Orders, are derived from section 50 of the Constitution, which states:

Each house of the Parliament may make rules and orders with respect to -

(i) The mode in which its powers, privileges, and immunities may be exercised and upheld:

(ii) The order and conduct of its business and proceedings either separately or jointly with the other House.

Provision for the powers of the Legislative and General Purpose Committees, which are the committees this Thesis is concerned with, are stated in Standing Order 36 AA(2). This empowers such committees to:

inquire into and report upon such matters as are referred to them by the Senate, including any Bills, Estimates or Statements of Expenditure, messages, petitions, inquiries or papers, ...

When Bills are to be referred to committees, a motion to refer the Bill to a committee is moved immediately after the second reading speech. Notice need not be given (Standing Order 196 A ) .

B. Privileges

Odgers describes the privileges of Parliament as the 'special rights or immunities attaching to Parliament, its Members, and others, necessary for the discharge of the functions of Parliament without obstruction and without the fear of prosecution' (Odgers 1976:633).

As explained earlier, these privileges, under section 49, allow the Parliament to delegate this power to parliamentary committees.

Privileges can be categorised under two headings:

corporate privileges (which are inherent in the committee) and individual privilege (those held by members themselves).

(i) Corporate Privilege

a. Control of internal proceedings: This is recognised under section 50 of the Constitution and the Standing Orders.

b. Control of members: Under section 47 of the Constitution Parliament has the power to determine the eligibility of Members of Parliament. Each House also has the power under Standing Orders to suspend a member for conduct unbecoming of the Chamber.

c. Inquisition powers: That is, the right

to summons persons to give evidence.

d. Publication of debates and documents: Parliament has complete control over debates in the Chamber and thus, in committees. The principle of privilege covers the publication of Hansard and any report that is tabled in Parliament. Each House also has control of the admission of persons who are not members of that Chamber. This also covers committee proceedings.

e. Punishment for contempt or breach of privilege: Each House has the right to punish any person for breach of privilege. This can cover a breach of Standing Orders, interference with the conduct of business in the Chamber or with members, or contempt with the Chamber generally.

(ii) Individual privilege

a. Freedom of speech: Article 9 of the Bill of Rights states 'The freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament' b. Freedom from arrest: There is freedom

from arrest and civil action for both members and for witnesses attending Parliament,

(Lumb and Ryan 1981:96-99)

While Standing Orders do not cover all aspects of privilege, they do make specific reference to the two most important powers of Senate committees. They are the power to call for papers and the power to summons witnesses (S.O. 36 A A (9) and (13) and Chapter XXXIII).

The power to administer oaths to witnesses is derived from section I of the Parliamentary Witnesses Oaths Act 1871 (by virtue of section 49 of the Constitution). This act empowers any committee of the House of Commons to administer an oath to the witnesses examined.

Crown Privilege

As noted earlier, the extent of the power of privilege in Parliament has yet to be clearly defined. One result of this is that the question of how far crown privilege extends or intrudes into parliamentary privilege has has yet to be resolved. Under the doctrine of crown privilege, the Executive may claim privilege in respect of documents and, with regard to witnesses, may instruct public servants to abstain from giving evidence. While the Executive, at its convenience, has claimed crown privilege with regard to certain matters, Parliament has never accepted the concept. As Parliament has never tested its powers to the limit, the issue remains unresolved.

The High Court in Fitzpatrick and Brown (1955) said that section 49 of the Constitution should not be read down and it is generally accepted that the powers and privileges of Parliament and its committees are very wide. However, Ellicott, in particular, has argued that there ought to be areas where the government can claim privilege and further, that the width of the powers of Parliament was intended to be restricted to matters that arise from Parliament's legislative function

(Greenwood and Ellicott 1972) .

Odgers contends that 'the Executive Government enjoys no privilege which puts it above Parliament, having in mind that an overriding principle of the parliamentary system of government is, and must be, the accountability of the Executive to Parliament. Any recognition of Executive privilege, as an unchallengable right, to deny information to Parliament, is inconsistent with that fundamental principle' (Odgers 1976:563).

Yet as is noted in Chapter 12, the Government in 1978 tabled Guidelines for Official Witnesses Appearing Before Committees which included a section outlining areas where the government believed it could claim crown privilege.

It is clear that Parliament has the power to provide parliamentary committees with powers as it sees fit. The Executive maintains that it may also claim privilege restricting the use of documents and limiting the areas that public servants may comment upon when appearing before parliamentary committees. As we shall see later, the government and Parliament's

understanding of privilege do not always coincide.

CHAPTER 8