Officials as Witnesses

19 Officials appear each year as witnesses before committees considering the Estimates, and again to review departmental and other agencies' performance. 9 They may also be required to appear in other contexts such as inquiries initiated by committees or briefings requested from them. 10 Officials as witnesses will appear in public hearings, where the media is also often present, unless the committee agrees to hear evidence in private or secret (see paras 35-37). 11

Departmental officials

20 In appearing as witnesses public servants are acting on behalf of their Minister, and assist the Minister to fulfil accountability obligations to the House. Ministers are therefore responsible for the statements made and answers given on their behalf. The Minister ultimately has the right to decide who should represent the Government before a select committee, whether or not a committee has requested attendance of a named official. In practice, the departmental chief executive or his or her delegate will normally judge when it is necessary to consult the Minister, in the absence of any direction from the Minister. Committees normally expect chief executives to appear in person for the Estimates and financial reviews, supported by other staff as necessary.

21 Departmental officials should consult the Minister before a hearing, keeping him or her informed of any significant matters which arise or are likely to do so. In particular, they are expected to immediately notify the appropriate Ministers (through their own Minister), during consideration of the Estimates, of proposals to change the composition of a Vote. Officials should not comment on any such proposal, beyond the technical point that the proposal may have an impact on the fiscal aggregates, requiring Ministerial consideration of the financial veto (see para 66).

Officials in the wider State sector

22 When employees, office holders, and board members in the wider State sector appear as witnesses, the lines of accountability to the Minister are not generally as direct as with public servants. Nevertheless, a "no surprises" relationship with the Minister must be maintained. At a minimum, Ministers should be kept informed of matters affecting their areas of responsibility, including advance notification of select committee attendances by specific officials. This practice will assist in ensuring that risks are managed and surprises are avoided.

23 Enabling Acts or conventions may sometimes provide that agencies in the wider State sector have other obligations to Ministers. These can arise from Government policy directions authorised by an Act, or from the statement of intent or statement of corporate intent of the particular agency. Some Crown entities, for example, are required to give effect to Ministerial policy directions - namely, Crown agents. This requirement will apply to the content of evidence officials from Crown agents give to select committees.

The Provision of Information to Committees

24 Often officials appearing as witnesses provide committees with written material which forms the basis for oral evidence. This material should be cleared at an appropriate level in the administering department or agency and, if necessary, with the Minister. 12

25 Requests from committees must be relevant. The Standing Orders Committee has noted that a committee should ensure that its "inquiries are well focused and do not waste the time or resources of the departments which fall within its jurisdiction". 13 If there is a significant or unreasonable cost associated with providing information requested by a committee, it is open to officials to inform the committee of the anticipated costs. This may prompt the committee to revise its request although, if it does not, a request for information held by the agency must be complied with. A committee cannot require officials to undertake new research or analysis, however, since the power to call for papers and records relates to existing material.

26 Officials should provide full and accurate information to committees. However, there are some limits to the information which officials may provide to committees. These limitations exist for a variety of reasons. They may apply because certain issues (especially matters of policy) should be reserved for comment by Ministers. Or they may apply to maintain constitutional conventions on giving advice, or because there is a public interest in not having certain types of information made public (such as commercially sensitive information).

27 A useful starting point for officials is to apply the criteria in the Official Information Act 1982 on whether information should be made available. Information which would be released under the Act should be provided to select committees on request (albeit with reference to the Minister in sensitive cases or to otherwise comply with the "no surprises" convention).

28 Officials should be clear that, although it is a useful guide, the Official Information Act does not formally constrain the powers of the House. Officials should never refuse to provide information to committees as if the Act does bind the House. Rather, the Act contains an accepted set of interests which may warrant the protection of information (ss 6, 7 and 9) and these are relevant in discussions with committees about their information requests. These include:

  • Protecting the security of New Zealand, or the international relations of the Government of New Zealand (including information given in confidence to the Government by governments of other countries);
  • Protecting the maintenance of the law;
  • Avoiding endangering the safety of any person;
  • Preventing serious damage to the economy of New Zealand;
  • Protecting the privacy of individuals;
  • Protecting commercially sensitive information;
  • Protecting information that is subject to legal privilege; and
  • Maintaining constitutional conventions relating to the confidentiality of advice, Ministerial responsibility and the political neutrality of officials.

29 Separately from the Official Information Act 1982, a number of conventions have been developed that should be considered before responding to a committee's requests for information. These conventions do not constrain the House's ability to require information to be produced, and will not necessarily bind a committee. The main ones are:

  • Ministerial approval should be sought before providing information on the policies, administration and expenditure of a previous administration;
  • Cabinet papers should be treated as confidential to the Government. Ministerial approval should be sought before such papers are released to a committee, unless officials are aware that they are already in the public domain. The proceedings of Cabinet or its committees should not ordinarily be divulged;
  • Committees have accepted that it may be inappropriate to require the public disclosure of commercially sensitive information;
  • Committees have not normally insisted on the presentation in public of information where this would infringe upon the privacy of individuals or of individual bodies, particularly when that information has been given in confidence; and
  • Officials are entitled to refuse to disclose opinion or advice given to Ministers without the agreement of the Minister (see para 33 below on seeking leave).

30 Specific restrictions on the disclosure of information contained in particular statutes may also constrain release of such information. Legal advice may need to be sought before responding to a committee in these circumstances. Further, a department proposing to supply a committee with information which relates to another department must first inform that department. When a question is more appropriately addressed to another agency, officials should say so. These are good yardsticks for agencies in the wider State sector to follow as well.

31 In general, committees tend to rely on informal requests for information or attendance, rather than using powers to send for persons, papers and records. This is consistent with the Government's expectation that officials will be as helpful as possible to committees.

32 Officials should endeavour to work in a responsive and cooperative way with select committees, meeting the committee's information requests. When there is a legitimate concern about providing requested information to a committee, the concern should be raised with the committee, as it may agree to the official providing the information in a different form. For example, when a committee requests legally privileged information, it may agree to the information being provided in a summary form.

33 It is ultimately a Ministerial decision whether to decline to release information within their areas of responsibility. When officials are asked for information they believe should not be released, they should seek leave to obtain the Minister's view on the issue, rather than refuse to answer the committee.

34 If an official or Minister refuses to provide information sought by a committee, the committee will consider whether to pursue the matter. A refusal is likely to be regarded seriously. 14 Although select committees do not have the power to punish people who do not satisfy such requests, the House may, after deliberation, require the Minister to produce the information. If the Minister continues to refuse to supply the information, it is open to the House to censure or punish the Minister. This would be a very extreme step which the House is unlikely to contemplate lightly. It would be very unusual for matters to get to this point. It is possible for the House to extend any punishment to officials as well, although the convention of Ministerial responsibility makes this unlikely.

Private or Secret Evidence

35 Committees are able to receive evidence in private or secret sessions, and may be willing to do so if the Minister is reluctant to have information publicly disclosed. 15 It is important, however, to clarify the status of any information provided before it is made available to the committee. Evidence provided in private is confidential to the committee until it reports to the House, but subsequently will be publicly available.

36 A select committee may declare evidence that it is to receive to be secret evidence. This can only be done by leave of the committee, and in anticipation of receiving the evidence. Committees may take this step if they consider the evidence can be obtained only if they assure the witness or person in possession of the information that it will remain confidential to the committee. Secret evidence might also be an option for a committee to protect a person's reputation. The rules of natural justice may be applied to such evidence. 16 Secret evidence passes into the custody of the Clerk and can only be released by order of the House. The secrecy also binds the person who supplies the evidence. Committees are not likely to hear evidence in secret without good reason.

37 Classes of evidence that might justify privacy or secrecy include industrial secrets, classified information, self incriminating evidence, matters sub judice, 17 and matters for which a Minister may claim public interest immunity. Serious allegations again third parties may also justify privacy or secrecy, although evidence containing allegations against third parties may be made available to the people concerned.

9 Standing Orders 336, 337, 340, 342, 343.

10 Standing Order 191.

11 Standing Orders 220, 221, 224.

12 Committees receive a great deal of information from officials as a matter of course through such mechanisms as annual reports. Parliament also has considerable powers to call for persons, papers and records.

13 Report of the Standing Orders Committee On the Review of Standing Orders, 1995, (I.18A) p39.

14 The Commerce Committee's 2004 report on TVNZ's accountability to Parliament illustrates this. The Committee said: "We believe the matters discussed in this report strike at the heart of the role and function of Parliament. Parliament is ultimately responsible for the expenditure of public monies. For this reason, those departments and other government agencies, charged with the expenditure of public monies, are accountable to Parliament for that expenditure. Their appearance before a select committee for financial review is the hard reality of that accountability. Any attempt to limit or withhold information from a select committee, such as outlined in this report, both lessens that accountability and Parliament's ability to fulfil its responsibility to scrutinise expenditure of public money and is therefore unacceptable to us."

http://www.parliament.nz/en-NZ/SC/Reports.

15 Standing Orders 220 - 222.

16 Standing Orders 236, 239.

17 Awaiting judicial decision.

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