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Parliamentary Practice in New Zealand

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14 October 2010
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Chapter 23 Select Committee Proceedings

Meetings of committees

First meeting

The time for the holding of the first meeting of a committee after it has been established is determined by the Speaker. [1]   (But where the House itself appoints a chairperson of the committee, the chairperson convenes the committee under the chairperson’s power to decide when a committee will meet.)

The Speaker appoints a time for the first meeting that is within the regular meeting times for committees as set out in the Standing Orders. Members must have notice of the meeting at least one day ahead. The Speaker does not appoint a time for the first meeting that would otherwise require leave of the committee, such as during a sitting of the House. Where it is desired that the first meeting take place without a day’s notice [2]   or during a sitting, [3]   the leave of the House is necessary to appoint the time for the meeting.

The Speaker advises all members of the committee in writing of the time appointed for the first meeting. Usually the arrangements for the first meeting are determined in consultation with the whips. It is irregular for any action to be taken in the committee’s name before the committee holds its first meeting. [4]   The only arrangements in connection with the business of the committee which may be made prior to its first meeting are those made by, or on behalf of, the Speaker for the purpose of convening that meeting.

Place of meeting

The first meeting of each committee is held in Parliament House.

A committee may meet at any place within New Zealand. [5]   Committees can meet overseas if they are specially authorised to do so by the House. [6]   The first committee to be given the authority to meet outside New Zealand was the Foreign Affairs and Defence Committee in 1989, which was authorised to meet with its counterpart committee in Canberra. [7]  

In practice, most select committee meetings are held in Parliament House in Wellington or in the adjacent Bowen House building, which is within the parliamentary precincts. Nevertheless, committees have been increasingly willing in recent years to travel to other centres for the purposes of hearing evidence more conveniently from a number of witnesses where there are sufficient submissions to hear to justify this. [8]   Where it is desired to meet outside the Wellington area (defined as comprising the cities of Wellington, Hutt, Upper Hutt and Porirua and the Paekākāriki/Raumati and Paraparaumu Wards of the Kapiti Coast District) [9]   certain restrictions on meeting apply.

To meet outside the Wellington area during a sitting of the House, a committee needs the agreement of the Business Committee. [10]   The Business Committee has indicated that it will agree to this only when a committee wishes to hear evidence, and not for the committee to transact other business in private (such as to deliberate on a bill) that could equally or more conveniently be transacted at Parliament House.

To meet outside the Wellington area at any other time requires the leave of the committee, [11]   it cannot be done on the chairperson’s authority alone.

Meetings held outside the parliamentary precincts are treated by the police in the same way as any other public meeting. (See p.273.)

Calling of meeting

Once a committee has held its first meeting and elected its chairperson, the arrangements for its subsequent meetings are a matter for it. The committee may itself appoint the times for subsequent meetings or it may leave this to be done by the chairperson.

In principle, the time for each committee’s next meeting is decided by a resolution of the committee passed before the committee adjourns. In the absence of such a decision, the chairperson, by notice in writing, decides when the next meeting will be held. [12]   An informal agreement among members of the committee about the time at which it will meet does not constitute an appointment of a meeting by the committee. [13]   Generally, committees adjourn from meeting to meeting. A formal appointment of a meeting, whether by the committee or by the chairperson, relates only to the committee’s next meeting, that is, to the time to which it stands adjourned. However, it is of obvious benefit to committee members to have a programme of meetings identified in advance. This is frequently done on a non-binding basis, though it can be done formally on a binding basis if the resolution of the committee appointing the programme clearly indicates this. In the latter case a variation of the programme (such as by the insertion of an extra meeting) can be made only by the committee.

In practice, most committees leave the calling of meetings in the hands of the chairperson as the most convenient mode of proceeding, but this practice is subject to general understandings with the members as to when the committee will meet. If there is no chairperson or deputy chairperson or they are both overseas, the Speaker exercises the chairperson’s authority to call meetings of the committee. [14]  

Notice of meeting

Notices to the members of the committee informing them of the committee’s meeting time in accordance with the committee’s or the chairperson’s directions must be circulated by the clerk of the committee no later than the day before the meeting. [15]   Such notices may be transmitted by email. [16]   In practice, notices for the regular Wednesday and Thursday meetings of committees are despatched to members, if possible, at least two days before the meetings are to occur.

This requirement for notice at least one day in advance may be waived if all members of the committee or the leaders or whips of their respective parties agree. [17]   This includes agreement from or on behalf of any non-voting members of the committee for any items of business to be transacted at the proposed meeting. In the case of a committee meeting which has lapsed or been adjourned because there is no quorum present and which it may consequently be possible to reconvene later in the day, agreement to waive notice is only required from those members who were expected to attend the aborted meeting. [18]  

The notice of meeting must contain a summary of the items of business proposed to be dealt with at the meeting so far as notice of them has been given at that time. [19]   The intention is that members must know what is likely to happen at a committee meeting on a given day and can consequently determine whether to attend and how to prepare themselves. [20]   The notice describes the items, indicates any action proposed and attaches relevant papers, for example, a draft report. Notice of further substantive items of business to be dealt with that are received later than the circulation of the notice of meeting but in time to be included on the agenda for that meeting may justify a revised notice of meeting being circulated.

A schedule of the meetings of committees to be held is published to members by email and on the parliamentary website, the first edition of this becoming available on Friday of the preceding week.

Meeting times

The time appointed for the committee to meet does not need to be a particular time – it can be fixed by reference to an uncertain event. However, the time is always expressed in terms of a calendar day. Select committees “meet”; they do not “sit”. The concept of a sitting day refers to the House’s sittings, not a select committee’s meetings, although a sitting day helps to define the particular times at which it is permissible for a select committee to meet. Consequently, references to the day on which a select committee is to meet are references to the calendar day, not to a sitting day. [21]  

When the House is sitting, most select committees hold their regular meetings on Wednesday and Thursday mornings. At the beginning of the Parliament the Business Committee or the whips come to an informal arrangement as to which of the subject select committees will be “Wednesday” committees and which will be “Thursday” committees and will therefore be called to meet regularly on either of those days. Committees may meet at other times too during a sitting week in accordance with the Standing Orders but there is a strong understanding that meetings will not be called during the times that party caucuses meet – after 10 am on Tuesdays during sitting weeks. Committees are much freer in arranging meetings during adjournments but even here days on which parties have advised that they will be holding caucuses are avoided.

There are a number of other restraints on committee meeting times.

Sundays

The House is specifically precluded from sitting on a Sunday by the Standing Orders [22]   and this absolute prohibition is taken to apply to select committee meetings too.

Fridays

In a week in which there has been a sitting of the House, a committee may not meet on Friday, except with the leave of the committee. [23]  

This restriction was introduced when Friday sittings were abolished in 1985. It was intended to prevent the consequent freeing up of members for constituency work on Fridays being precluded by programmes of Friday select committee meetings being organised. [24]   The House when referring a bill to a committee may confer power on it to meet on Fridays, notwithstanding that the House has been sitting that week. In these circumstances, the committee or the chairperson can appoint a meeting on Friday and the leave of the committee is not required. A subcommittee has also been authorised to meet on a Friday during sitting weeks to work on an inquiry it was carrying out for the full committee. [25]  

Where a sitting of the House extends into Friday due to urgency, this does not authorise a committee to utilise its general power to meet while the House is sitting in order to meet on that Friday, without specific authority from the House to do so. The restriction on meeting on a Friday is a different restriction from the limited power committees have to meet during a sitting, and the latter does not override the former. Leave of the committee or distinct authority from the House is necessary in such a case.

Question time

A committee that is meeting in the Wellington area may not meet during question time. [26]   If a committee is meeting outside the Wellington area (which it may only do during a House sitting with the Business Committee’s agreement), this restriction does not apply as it would serve no purpose. Where a committee meeting has been appointed for a certain time and question time has not concluded by that time, the committee’s meeting is automatically postponed until questions do end, subject to any leave being granted by the House for the meeting to proceed.

Sittings of the House

As well as during question time, there are some other restrictions on committees meeting while the House is sitting.

Before 1996 committees could not meet at all while the House was sitting (which includes the committee of the whole House since this takes place during a sitting of the House). Specific authority was always required from the House. Now select committees have some limited powers to meet during a sitting. For meetings outside the Wellington area, the Business Committee can authorise a select committee to meet during a sitting (that is, during the afternoon and in an evening). [27]   For a select committee meeting in the Wellington area, whose members would otherwise have been expected to attend the House sitting, leave of the committee is essential for the committee to meet while the House is sitting. [28]   Even then, such leave can only authorise the committee to meet after question time and up to 6 pm. A select committee cannot meet in the Wellington area after 6 pm on any day on which the House has sat (regardless of whether the House is actually sitting after 6 pm) except for the purpose of completing business in progress before the committee at 6 pm. [29]  

The House, when referring a bill to a committee, may authorise the committee to meet while the House is sitting. This gives the committee, by resolution, and the chairperson, by appointment, power to convene meetings while the House is sitting during an afternoon. Leave of the committee is not required in such circumstances. Whether the committee or the chairperson, by notice, exercise such a power that has been conferred on the committee is a matter for them. There is no convention that a committee will not meet while the House is sitting under urgency, for example, [30]   though it is likely that the whips will discuss compromises to committee meeting plans in these circumstances to accommodate members who have duties in the Chamber.

Evenings

A committee that is meeting outside the Wellington area (which it can do only with the agreement of the Business Committee or the leave of the committee itself) is unrestrained as to meeting during the evening. A committee meeting in the Wellington area on a non-sitting day is similarly unconstrained. But a committee meeting in the Wellington area on a day on which there has been a sitting of the House may not meet after 6 pm (except by leave for the limited purpose of concluding business in progress at 6 pm). [31]   This restriction applies whether or not the House is actually sitting that evening, so it applies to prevent committees meeting on Thursday evenings even when the House adjourns at 6 pm. Only the House can release a committee from this restriction.

The House, when referring a bill to a committee, may confer on the committee power to meet during an evening on which there has been a sitting. In such a case the committee, by resolution, or the chairperson, by notice, may appoint a meeting for the evening and a meeting already in progress may continue after 6 pm.

After midnight

The Speaker has ruled that, unless all members of the committee are in agreement or the House specially authorises, committees should not meet between midnight and 8 am. [32]   If it were otherwise, this would defeat the purpose of a major Standing Orders change introduced in 1985 that was to ensure that the House did not sit through the night except in extraordinary circumstances. There are no known examples of either the House or a committee giving permission for a select committee to meet after midnight.

Varying restrictions on meeting times

In referring a bill to a committee the House often varies the restrictions on meeting times imposed by the Standing Orders and allows the committee to meet on a Friday of a sitting week, during the sitting hours or during the evening on a sitting day, in the same way that it can meet at other times. Such a motion can be moved as part of the motion nominating the committee to consider the bill. [33]   In practice, almost all variations to restrictions on meeting times are moved at this time since to do so then does not involve any extra debating time on the floor of the House (the debate being absorbed into the first reading debate).

But, in addition, the restrictions on select committee meeting times are subject to any other order of the House to the contrary, given either to a particular committee or in respect of a particular item of business, such as for a bill, subsequent to its referral to the committee. It is, however, improper for committees to anticipate the granting of such authority and to issue notices of meeting for a time that is prohibited under the Standing Orders. While it is permissible for members to be sounded out about the possibility of such a proposed meeting and for officials based in Wellington to be alerted to the possibility, no arrangements should be made for witnesses to attend before the authority of the House is obtained. [34]  

The initiative (subsequent to a bill’s referral to it) for a committee to have granted to it unlimited authority to meet during a sitting of the House or to meet at another prohibited time may come from the committee by way of a special report, or from the House itself. [35]   A motion for a committee to have power to meet during the current sitting of the House does not require notice, [36]   but a motion authorising a committee to meet during a future sitting does. The permission to meet might relate only to the consideration of certain business – for instance, to consider a certain bill – or it might be a power for a committee to sit on a particular day or days, without reference to the business to be transacted. The debate on such a motion is limited to the question of whether the committee should have the power to sit, and if it should not, then why not. [37]   It is not an opportunity to debate the merits of business to be transacted by the committee at the meeting.

The fact that a committee is granted wider authority to meet than is conferred by the Standing Orders does not prevent it from meeting at any other time in accordance with the Standing Orders. [38]   Such an authority widens the committee’s powers; it does not take away powers the committee would otherwise have. Whenever a committee has been given wider power to meet it is for the committee to decide how and in what circumstances to exercise this power. [39]   The fact that there is no apparently urgent business to transact at a meeting does not prevent it going ahead if the committee has power to meet and decides to exercise it. [40]   It is a matter for the judgment of the committee.

Cancellation of meeting

Where the committee appoints the time for its next meeting the chairperson may not cancel the meeting, [41]   nor alter the time for its commencement, [42]   though this may be done on a “round-robin” basis with the agreement of all members of the committee or all members who can reasonably be contacted. The chairperson can cancel a meeting which has been appointed on the chairperson’s authority.

Suspension of meeting

The chairperson may suspend a meeting in the case of grave disorder arising at the meeting. [43]   The meeting resumes at the time that the chairperson, having given reasonable notice to members present at the time of the suspension, determines. As a meeting may not extend over separate calendar days, [44]   if the meeting is to resume at all it must be later in the same day and before any time appointed for the meeting to adjourn in any case. If the meeting does not resume after it has been suspended by the chairperson, the chairperson appoints the time for a new meeting of the committee on a future day.

Other than in cases of grave disorder, only the committee can suspend its own meeting. In the case of a meeting that is scheduled to extend over the greater part of a day, times for the meeting to be suspended for lunch and dinner will usually be determined in advance and included in the notice of meeting. If the committee appoints the meeting it will include suspension times in the appointing resolution. But usually suspension times for a day long meeting (if discussed in advance by the committee at all) are discussed only informally and are included in the notice of meeting on the chairperson’s authority. Whether the committee follows them or not is a matter for it to decide.

Adjournment of meeting

A select committee meeting concludes and the committee adjourns when—

•the committee has completed all of the business on its agenda, or

•the time appointed for the committee to adjourn arrives, or

•a time during which the committee is prohibited from meeting arrives, or

•the committee decides to adjourn.

While the chairperson of a select committee may suspend the meeting in a case of grave disorder, he or she may not adjourn it (nor may the chairperson of a committee of the whole House).

The committee may adopt formal meeting times in advance of a meeting but this is unusual. Usually, while meeting times may have been discussed at a prior meeting, the advertised times for the meeting to last are published on the chairperson’s authority and are indicative only. Thus, when the advertised time for the meeting to end is reached and the committee adjourns, this is because the committee has decided (perhaps implicitly) to adjourn at that point, not because adjournment is automatic. In such circumstances, while there is a presumption that the meeting will conclude at the advertised time, it is always open to the committee to resolve to continue to meet on.

On the other hand, where a committee meeting extends to a time during which a committee is prohibited from meeting, the continuance of the meeting comes into question and adjournment may be automatic. Thus, a committee meeting in the Wellington area cannot, even by leave, continue its meeting after 2 pm on a sitting day because committees are prohibited from meeting in the Wellington area during question time, [45]   which commences at 2 pm or a few minutes thereafter. Adjournment at this time is thus automatic. In the case of a committee meeting at any other time when a sitting resumes (for example, at 9 am under urgency) leave of the committee would be required for the meeting to continue, [46]   otherwise the committee must adjourn. (In all cases this is subject to any special permission from the House allowing a committee to meet at a time that is otherwise prohibited.) Although committees are not prohibited from meeting while meetings of caucus are taking place, there is a strong convention that any select committee meeting in progress when caucuses usually meet (after 10 am on Tuesdays in sitting weeks) will conclude and the committee will adjourn.

At midnight a committee adjourns unless leave of the committee is given to continue the meeting. [47]   Even so, a meeting continued in this way could only be for the purpose of concluding within a reasonable time an item of business on which the committee was engaged at midnight, because meetings held on separate calendar days are, in principle, separate meetings rather than one continuous meeting. [48]   Consequently, an extension of a meeting beyond midnight, even though all members are in agreement, could only be for a limited period of time. A new meeting of the committee would need to be appointed to resume business.

Any member of the committee can move that the committee do now adjourn. This motion can only be moved between items of business, not while an item of business is under consideration. (Though consideration of the item may itself be adjourned to permit a motion for the adjournment of the committee to be moved.) While there cannot be more than one adjournment motion moved between the same items of business, there can be subsequent adjournment motions moved during the continuance of the same meeting where the committee has transacted further business since it last rejected a proposal to adjourn. It is up to the chairperson how much discussion to permit on a motion to adjourn before the question is put to the committee. The fact that the committee had rejected a motion to adjourn earlier in the meeting would be a relevant factor to consider in the length of the discussion to permit on such a motion.

Joint meetings

A joint meeting is a meeting between two or more select committees, each of which retains its own separate identity as a committee. Such a meeting can be held without the express authority of the House, provided that the subject of the meeting is within the terms of reference of both participating committees. Where a joint meeting is to be held, the committees must resolve, by agreement between them, how they are to conduct their business (unless the House has determined this). Both committees must agree to the procedures to be adopted; the members at the joint meeting do not vote as one body on questions, unless each committee has agreed to operate in this manner.

A special type of joint meeting is the meetings that have been held between select committees and their counterpart committees in the Parliament of the Commonwealth of Australia and in a number of State Parliaments in Australia. Standard procedures for such meetings have been agreed between the Australian and New Zealand Parliaments. (See Chapter 43.)

Subcommittees

Select committees have a general power to appoint subcommittees to help them perform their tasks. [49]   They may do this to carry out or contribute to the consideration of substantive business before the committee or to discharge administrative or procedural functions. [50]  

A subcommittee is a creature of the committee which appoints it and is wholly responsible to that committee. It can consist only of members who are members of the full committee. It does not report to the House; it reports to the committee. [51]   It is then for the committee to endorse or reject its work as it sees fit and, if it is endorsed, the committee makes the subcommittee’s conclusions its conclusions and takes responsibility for them. A committee may confer on a subcommittee any of the powers the House has conferred on it in respect of business it refers to the subcommittee (for example, the power to meet during an evening).

The rules for the conduct of business by a subcommittee may be prescribed by the committee, provided these are not inconsistent with the Standing Orders, for a committee cannot authorise a subcommittee to do something that it cannot do itself. Subject to any specific rules prescribed by the committee, the same rules for the conduct of business apply to the subcommittee as apply to the full committee. [52]  

The committee may appoint the subcommittee’s chairperson or leave that matter to the subcommittee. A subcommittee must have at least two members in order to be a subcommittee. The same formula for the quorum of a subcommittee applies as applies to the committee itself – at least half of the subcommittee’s membership constitutes a quorum. More than one subcommittee of the same committee may meet at the same time provided that there are sufficient members of the committee available to service two such meetings, and a subcommittee may meet at the same time as the full committee provided that they both have a quorum.

The subcommittee’s report is, in the first instance, brought to the full committee. Subject to receiving the committee’s endorsement, it is then presented to the House as a report of the committee. Once a subcommittee established to carry out a particular task has made its final report to the full committee, it ceases to exist (though the committee may re-establish it if it sees fit). [53]   Otherwise it is up to the committee how long the subcommittee remains in existence.

The chairperson of a subcommittee may have a question addressed to him or her, [54]   and may, with the agreement of the subcommittee, make a public statement on the nature of the work before the committee. [55]   The subcommittee may also make its proceedings available to any person for the purpose of receiving assistance on its consideration of a matter. [56]  

A subcommittee’s proceedings are open to the public during the hearing of evidence and subject to confidentiality at other times, in the same way as are the full committee’s. (See pp. 275–80.)

Quorum and attendance

The quorum of a select committee is half of the committee’s membership, rounded-up if need be. [57]   This relates to the committee’s membership at any particular time. While the size of a committee is fixed by the House or the Business Committee, its membership may vary from time to time not just in personnel but also in number. If there is a vacancy on a committee its membership is consequently reduced and the quorum is reduced accordingly. Physical presence at the meeting is required for a member to count towards a committee’s quorum (members are not permitted to participate in a committee meeting by videoconference in any case). A non-voting member of the committee is not counted as part of the quorum [58]   and is left completely out of account insofar as its determination is concerned. A committee cannot proceed to transact any business unless a quorum is present. If there is not a quorum present within 10 minutes of the time appointed for a meeting, the committee stands adjourned. [59]   The time for its next meeting is decided upon by the chairperson.

If a committee becomes inquorate during a meeting, the proceedings of the committee are suspended for up to 10 minutes. If by this time there is still no quorum, the committee stands adjourned. [60]   The time for its next meeting is decided upon by the chairperson.

The members who attend a committee meeting are listed in the minutes. [61]   However, it is up to members themselves whether they actually attend a meeting; there is no compulsion on them to do so. In practice, the party whips will endeavour to ensure that members are present at meetings so that the party’s point of view is represented. In respect of larger parties this will involve arranging temporary replacements for members who are unavoidably absent. Replacing members is a more serious difficulty for smaller parties. Complaints may be made from time to time about the attendance record of particular members at committee meetings but this is not a matter over which committees themselves have any control.

General procedures of select committees

Proceedings are conducted in select committees in a manner which is necessarily different from that on the floor of the House. First, the House is an assembly which transacts business mainly by its members making speeches. Members do not make formal speeches in select committees. They question witnesses and they discuss issues with each other across a table – quite different forms of proceeding. Secondly, proceedings in the House are confined to members; other persons do not participate in them. In contrast, one of the principal advantages of the select committee system is that it intimately involves people other than members by associating them directly with the consideration of parliamentary business. For both of these reasons it is not appropriate to have such elaborate rules for the conduct of proceedings in select committees as it is for those on the floor of the House. Select committees are conducted in a more informal manner and this relative informality is an important aspect of their mode of proceeding.

There are, nevertheless, a number of Standing Orders prescribing rules specifically for the conduct of business by select committees. Rules relating to the conduct of business generally by select committees are contained in Chapter IV of the Standing Orders. Rules relating to how particular items of business before select committees (bills, regulations, petitions, etc.) are to be dealt with are set out in the corresponding chapters of the Standing Orders relating to those types of business. Select committees have themselves developed common practices as to how business is conducted and these are recognised by the House as part of the general procedures of select committees.

But these specific rules are not as comprehensive for select committees as they are for the House itself and so they are supported by a framework of rules to which recourse can be had when no specific rule applies.

Consequently, it is provided that where there is no express provision in the Standing Orders or any practice of the House to the contrary, the same rules for the conduct of proceedings as apply to a committee of the whole House are to apply to select committees. [62]   A committee of the whole House is itself enjoined to follow the House’s procedures subject to any express rule applying to it, [63]   so a select committee may have recourse for procedural guidance, first, to the particular rules applying to a committee of the whole House, and then to those of the House itself.

This does not mean that the Standing Orders relating to the House and to committees of the whole House are in effect for select committees, only that in the absence of more specific rules directly applying to a committee those Standing Orders may be applied by analogy to select committee proceedings. Some House rules (for example, the House’s detailed time limits on speeches) can have no analogous application to select committees at all, while others may apply only imperfectly to the circumstances of a select committee meeting. Practices adopted by individual committees may be followed by agreement within those committees as long as they are not inconsistent with the Standing Orders, but they are not part of the general rules relating to select committees and they continue to apply for only as long as the members of the particular committee agree to observe them. (Such matters may relate to seating practices at a particular committee, for example.)

Ruling on matters of procedure

On matters of procedure, the chairperson of each select committee is in the same position as the chairperson presiding over a committee of the whole House. The chairperson deals with all points of order arising in the committee and the Speaker cannot interfere with the chairperson’s decisions unless the committee decides to report to the Speaker to seek a ruling, [64]   though the Speaker can, on a point of order, deal with general questions as to a committee’s jurisdiction. [65]  

This does not mean that all matters arising in a select committee are decided exclusively by the chairperson. If this were the case the chairperson would usurp the role of the committee in many instances. The chairperson is subject to control by the committee, although for convenience a great deal is left to his or her initiative. The chairperson of a select committee, being a participant in the substantive business transacted by the committee, has a much more active role in leading the committee than do the Speaker or the chairperson of a committee of the whole House who, in their respective spheres, confine themselves to keeping order and deciding procedural disputes. In each instance it is important to establish, therefore, whether the chairperson is deciding something for the committee as a presiding officer (such as whether an amendment is in order), in which case the decision is final and cannot be reversed by the committee, or whether the chairperson is acting on behalf of the committee as its leader (such as in arranging the committee’s agenda), in which case the committee could overrule the arrangements that have been made. While the power to make a decision on a matter may well rest with the committee (by a majority if need be), it may be that in practice the decision is made (at least in the first instance) by the chairperson on behalf of the committee.

When a procedural difficulty arises which the committee feels unable to resolve, the committee may ask the Clerk of the House to attend the committee to advise on the appropriate procedure. [66]   It has also been a practice of long standing that select committees may instruct their chairpersons to consult the Speaker privately on matters of procedure. In this case the Speaker may give a private ruling for the guidance of the committee. [67]   But, in any case, it is for the committee to authorise the seeking of advice or a formal ruling; the chairperson does not have the right to do so on his or her own initiative.

Procedural matters which arise in a select committee are not matters which can be raised as points of order in the House. They must be dealt with in the committee. [68]   The House has no cognisance of anything that takes place in a committee until it is reported to it by order of the committee. Therefore, if it were desired to seek the Speaker’s ruling in the House, the committee would have to direct the chairperson to present a report to the House accordingly. [69]  

When the Speaker has ruled at the request of the committee, whether privately or in the House, that ruling is final and conclusive. [70]   Rulings made by individual chairpersons within their authority are also final and bind the committee. But they are not precedents in the sense that Speakers’ rulings are. They do not bind other committees and they do not bind chairpersons of the same committee when different items of business arise in the future, though in either case an earlier chairperson’s ruling may be followed if a subsequent chairperson is persuaded that it is appropriate to do so.

Matters awaiting judicial decision

The House’s rule against references to matters awaiting or under adjudication in a court of record applies also to the proceedings of select committees. [71]   (See Chapter 16.) The chairperson of a select committee must have regard to the principles followed by the Speaker in applying the rule. [72]   Thus, the chairperson could direct that a line of questioning be discontinued in order to prevent an infringement of the rule. Committees have accepted that reviews that they are carrying out may be more limited for the time being where relevant matters are before a court. [73]   In one case an applicant for judicial review discontinued those proceedings so as not to inhibit a select committee’s inquiry into the same matter. [74]   But select committees have available to them the power of hearing evidence in private or secret and these are likely to be effective ways of avoiding any prejudice to legal proceedings that might otherwise arise. [75]   The sub judice rule does not in any event prevent a committee deliberating on its report since this is always done in private. [76]   A committee may also be able to delay presentation of its report until the legal proceedings are concluded so as to avoid prejudice arising. These procedures give select committees a potentially wider range of options to use to work outside the constraints of the sub judice rule than are available to the House.

Committee’s agenda

In accordance with standard meeting practice, every committee has for each meeting an agenda setting out the business proposed to be transacted at that meeting and the order in which that business is to be transacted.

The agenda is prepared by the clerk of the committee under the chairperson’s direction. There may be a number of items that it must contain because of previous decisions by the committee and notices of business given by members, but it is largely organised in a way that is at the discretion of the chairperson. The agenda is not formally adopted at each meeting. Committees generally follow it as it is laid before the committee, though it is open to a committee to vary the agenda as long as it does so in a way that is consistent with previous committee decisions and with the notices of business given by members.

Standard items on an agenda include: announcements of changes in committee personnel, confirmation of the committee’s previous meeting’s minutes and lists of papers to be formally received by the committee at the meeting. Alongside the items of business to be considered at the meeting it is usual to record the names and designations of the persons who are to participate in consideration of that item, whether as advisers or witnesses. An item designated “general business” is placed on the agenda (except where a meeting is restricted to considering a particular item of business). Under this item (often taken after other items of business) members can give notice of business they wish to have on the agenda at the next or a future meeting of the committee. They can also, if the committee unanimously agrees, raise under general business a matter for discussion at that meeting that was not on the agenda for the meeting. But “general business” is not an opportunity for members to raise for decision by the committee substantive items of business that require notice unless the other members of the committee concur in this.

Items of business

The committee’s agenda shows the items of business to be transacted by the committee. This must be done with some particularity so that members are clear about what is to be considered. In principle, different types of proceeding on a bill, for example, such as being briefed on it by officials, hearing evidence, considering departmental and other reports, and deliberating on the bill should be separate items of business transacted at different meetings, though a committee may depart from this manner of proceeding if it sees fit. All items of business included on an agenda must have been advised to members in a notice of meeting circulated at the latest on the day before the meeting. No item may be included on the agenda (except with the leave of the committee) if it has not been advised in summary form in a notice of meeting.

Members of the committee may give notice of an item of business to be considered by the committee either orally at an earlier meeting of the committee (under the item “general business” or at any other time during the meeting that is acceptable to the committee) or in writing delivered to the clerk of the committee. [77]   Notices of business given orally at a meeting and any notices of business received in writing by the clerk before 2 pm on the day before the next meeting of the committee is to be held, are included in the notice of meeting sent to members and must be placed on the agenda for that meeting or, if a longer period of notice is prescribed by the Standing Orders (such as the seven days’ notice for removal of the chairperson), on the agenda for the first meeting after the minimum period of notice has expired. [78]   The requirement to place such notices of business on the agenda for the next meeting applies even when the committee has already set the agenda for its next meeting. But if the committee has been given special permission from the House to meet at a particular time at which it could not otherwise meet (for example, on a Friday) for the purpose of considering only a particular item of business, any notices relating to other business are placed instead on the agenda for the next regular meeting of the committee.

The right of any member of the committee to have business placed on its agenda is subject in all cases to that business being relevant to the committee’s work. The chairperson has the power to rule whether a proposed notice of business is in order. [79]   A notice relating to a subject that is outside the committee’s terms of reference is not in order. Another reason why a notice may be ruled out of order is if it relates to an issue already determined by the committee earlier in the same calendar year. In any case in which a notice is ruled out of order it is not placed on the agenda. If it is already on the agenda when the chairperson rules on it, it is removed. In each case it is for the chairperson to decide if the notice which has been given is in order. Members do not have an untrammelled right to place items on the committee’s agenda.

When the committee reaches an item on the agenda it can be deferred by the committee to later in the meeting or postponed to a future meeting, unless, in the latter case, it was specifically placed on the agenda for that meeting by an earlier decision of the committee. If this is the case, leave of the committee is necessary to postpone it. Once the committee has entered upon consideration of an item of business it is open to the committee to adjourn further consideration of it either until later in the meeting or to a future meeting. New items of business that were not on the committee’s agenda can only be introduced, under general business, with the leave of the committee.

Manner of taking decisions

Committees take decisions on the matters before them by resolving a question. This, in principle, is a similar process to that followed in the House, involving: notice, a member moving a motion, a question proposed by the chairperson, discussion on that question, the question being put by the chairperson and a vote being held. However, committees operate more informally than the House. Notice is not necessary in a number of instances and some of the other steps may be omitted if members concur in this.

Votes on questions put by the chairperson are given by members indicating from their seats by voice how they wish to vote. The chairperson then expresses the sense of the vote by stating whether, in his or her opinion, the “Ayes” or the “Noes” have it. At this point any member of the committee may require that a formal record of how members wish to vote be entered in the minutes, regardless of whether that member agrees or disagrees with how the chairperson has expressed the sense of the vote. It is the responsibility of a member to ask that the votes be formally recorded, otherwise the minutes will merely show that a decision has been taken without dissent. [80]  

Where a vote is formally recorded, members are asked by the chairperson to indicate their votes individually. Their names for, against or in abstention on the question are recorded by the clerk and included in the minutes. [81]   Where a series of votes is to be held, the committee may agree to a more informal practice than this for members’ votes to be recorded. As long as these practices are clear this is acceptable. [82]   Members must be physically present at the meeting to record a vote. There are no proxy votes at select committee meetings.

Questions are resolved by a majority of the votes Aye or No. The House has on one occasion imposed on a select committee a requirement of unanimity or near-unanimity similar to the rule applying to the Business Committee because of the constitutional and political significance of the matters before it. [83]  

Maintenance of order

As in the House with the Speaker, the chairperson is responsible for maintaining order in a select committee. But this is a duty that is shared more equally with the members of the committee itself than it is in the larger gatherings of the House and the committee of the whole House.

On questions of dress and consumption of food and beverages, for instance, there is no reason why select committees (which operate far more informally than the House) should follow exactly the House’s practices. Indeed, individual select committees may differ among themselves as to the standards that they apply. Committees conduct much of their business in public and there may appropriately be different rules for the public and private phases of their work – for example, as to consumption of food during a meeting. Ultimately, as matters of order, these are matters for the chairperson to determine after (as in the House) having taken due account of the views of members of the committee. [84]  

A member of a committee (including a non-voting member in respect of that portion of the meeting for which he or she is a member) may be excluded from a meeting for highly disorderly conduct only on the order of the committee and not at the direction of the chairperson alone. [85]   Such a motion may be moved at any time during the meeting of the committee. Although the decision to exclude the member is the committee’s, it is solely for the chairperson to determine whether the occasion for the exercise of the power to exclude has arisen, that is, that the member has actually been guilty of highly disorderly conduct in the chairperson’s opinion. Unless the chairperson rules that a member has been guilty of highly disorderly conduct, the committee cannot exclude the member. The House’s rules for excluding, naming and suspending members do not apply to a select committee; a member can be excluded from a meeting only in accordance with the Standing Orders applying to select committee meetings. [86]   The period for which the member is excluded from the committee meeting may not exceed the time of the remainder of the meeting held on that day. [87]  

The chairperson may, on the chairperson’s own authority, order any other member of Parliament present at the committee who is not a member of the committee to withdraw from the meeting if that member’s conduct is disorderly. [88]  

The meetings of a select committee are open to the public during the hearing of evidence, but any member of the public who is guilty of disorderly conduct can be ordered by the chairperson to withdraw from the meeting. This applies equally to witnesses and representatives of the press. [89]   Furthermore, it is a contempt of the House for any persons to misconduct themselves before a committee, [90]   so in serious cases of disorder persons may be proceeded against for a breach of privilege.

Suspension of meeting on account of disorder

The chairperson of a select committee may suspend the meeting of a committee for grave disorder in the same way as may the chairperson of a committee of the whole House. In the case of a suspension, the chairperson decides when the meeting will be resumed.

Order at meetings outside the parliamentary precincts

Meetings held outside the parliamentary precincts are in a different position from those held within Parliament House and the other areas under the Speaker’s control. In the case of grave disorder arising at a meeting held outside the precincts, the chairperson’s only option may be to suspend the meeting. A chairperson has closed a meeting of a committee in these circumstances on the ground that it was becoming unruly. [91]   The committee could report the disorderly incidents to the House and let the House decide what action to take. The Serjeant-at-Arms has a duty of enforcing order at parliamentary proceedings held within the precincts, but not beyond them. A select committee meeting held outside the parliamentary precincts is no different from any other public meeting as far as the police are concerned. Ordinarily, the police would be unlikely to act to prevent interruptions by heckling or other means unless a breach of the peace or another offence seemed likely to occur. [92]   However, the police may be delegated with power by the occupier of the premises in which a committee is meeting to remove trespassers. In this case, persons interrupting a meeting may be required to leave under trespass powers.

Broadcasting of proceedings

The broadcasting of proceedings at meetings of select committees, whether by television or by radio, is a matter for the committee to decide upon should any request be made to it for permission to do so. Such requests are considered on their merits, having regard to the public interest on the subject matter and the privacy of individual witnesses. [93]  

Minutes

The clerk of the committee prepares minutes of each committee meeting.

Minutes are not a verbatim report of the meeting. They are intended principally to record decisions taken by the committee. For this purpose they are definitive. The confirmed minutes of a select committee meeting are conclusive evidence of resolutions passed by the committee. [94]  

The minutes must show the names of the members of the committee present at the committee meeting. [95]   This means only the names of members present as members of the committee (including non-voting members), not of other members present in the exercise of their general right to attend the meeting. It does not matter how long a member remained present at the meeting; if the member attended a meeting at all as a member of the committee the member’s name must be recorded in the minutes relating to that meeting. The Standing Orders also require that the votes of members on questions put to the committee are to be recorded in the minutes if any member requires this. [96]  

In practice, the minutes also record a number of other matters, such as: the time the meeting commenced and ended, apologies from members for non-attendance, notified replacements and details of the times or items to which the replacements relate, names and designations of other persons participating or present at the meeting as advisers and papers and documents presented to the committee or which witnesses or advisers undertake to provide.

Wherever practicable, draft minutes of the previous meeting are circulated to members with the notice of meeting for the next meeting of the committee and are confirmed or amended by the committee at that meeting.

Calling for evidence

Provided that a committee remains within the terms of reference given to it by the House, the extent to which it hears evidence or canvasses for submissions is for it to decide. A committee may, by restricted terms of reference, actually be prevented from hearing witnesses, but this is most unusual. The whole point of most referrals of bills to committees for study is so that the proposal can be subjected to examination and criticism, and for this purpose the committees are able to collect information on the bills in the form of evidence. Similarly, committees will generally seek submissions on significant inquiries which they initiate. In the case of estimates and financial review examinations, scrutiny of treaties and most petitions, committees do not advertise for submissions, usually being content to hear from the departments, organisations or individuals directly concerned, supplemented by advice from staff assisting the committee.

Inviting submissions

The chairperson of a select committee has the power to invite any person to appear before the committee to give evidence or to produce papers and records that are relevant to the committee’s proceedings. [97]   The chairperson does not need to have been directed by the committee to exercise this power; the chairperson can do it of his or her own volition. But any action taken by the chairperson to request evidence is taken on behalf of the committee. It is not a general right to request information. Evidence can only be invited where it is relevant to a matter before the committee. Furthermore, it is only a power to request. Penal powers to enforce a request for evidence or the production of documents lie with the House and the Speaker. (See Chapter 30.)

Most commonly a chairperson exercises the power to invite evidence by initiating the process of advertising for submissions.

Advertising for submissions

Most select committees advertise for submissions on the bills and other matters which are referred to them. A committee cannot advertise for submissions in anticipation of a bill or other matter being referred to it. [98]   Advertising for submissions, as with inviting submissions, may only be undertaken in respect of a matter that is before the committee.

The initial decision to advertise, and the form of the advertisement, may be taken by the chairperson. The advertisement is then placed on the chairperson’s authority. In these circumstances the wording of the advertisement must not give the impression that all members of the committee participated in the decision to place it. [99]   Placing an advertisement on the chairperson’s authority is necessary where the committee is not due to meet for a little while and to wait for a meeting to authorise the advertising would lead to valuable time being lost for potential witnesses to prepare their submissions. In such a case the chairperson may consult with senior members of the committee before placing the advertisement.

Where the initial advertisement is placed on the chairperson’s authority, it is for the committee when it next meets to endorse or repudiate the decision, as it sees fit. [100]   If a bill or other matter has been referred to a committee since it last met and no advertisement has been placed for it, the committee itself will decide the advertising arrangements to be followed in respect of it.

Extent of advertising

Most select committees advertise in newspapers for submissions on the bills and other matters which are referred to them. The extent of advertising coverage throughout the country depends upon the likely degree of interest in the subject under consideration. Advertising may be undertaken nationally or may be localised where there is only likely to be a local interest. In exceptional cases, further steps may be taken to publicise the committee’s existence and its wish to receive evidence. Thus, on an electoral law inquiry, advertisements were placed in 37 newspapers and broadcasts made in Māori, Samoan, Tongan, Cook Islands Māori and Niuean, specifically inviting submissions to be made to the committee. [101]   Often a committee will write to groups which it identifies as having a special interest in the subject under study [102]   or even invite experts in the field to make submissions. [103]   A committee has sought public feedback on its work through a dedicated website. [104]   Witnesses may themselves make suggestions for what form of advertising is appropriate in a particular case. [105]  

Advertisements often contain summaries of the subject-matter, normally a bill, on which submissions are being invited. These are not intended as a full substitute for potential witnesses studying the bill or other matter themselves. Rather, they are designed to alert the public to a matter which may be of interest to them. Summaries must be prepared as neutral statements of the contents of the bill or matter concerned. [106]   Where a committee is advertising for submissions on an inquiry which it is about to undertake, it will normally publish the full terms of reference for the inquiry in the advertisement.

Closing date for submissions

The advertisement inviting submissions also names a date by which submissions should be made to the committee. This date may have been initially determined by the chairperson, but it is always a matter on which the chairperson is subject to direction by the committee. The date fixed for the closure of submissions on a bill will vary depending upon the need to pass the legislation by any particular time or if it is required to be dealt with before the House adjourns for the year. The standard time for committees to allow is between four and six weeks. A committee may begin to hear evidence before the lapse of the time fixed for submissions to be made, if submissions are received early enough for it to do this. Submissions received out of time may be heard by the committee if it so decides, but there is no guarantee of the committee accommodating a witness in these circumstances.

Access to evidence and proceedings

The general presumption is that a select committee hears the evidence submitted to it in public and conducts its other business in private. [107]  

Public evidence

During the hearing of evidence on any matter by a select committee, the proceedings are open to the public, subject to the committee’s right to hear evidence in private or in secret. [108]   The House, in referring a matter to a select committee, could direct otherwise but this would be extremely unlikely. The chairperson may order a member of the public who is being disorderly and any member of Parliament who is not a member of the committee, but who happens to be attending, to leave the meeting if their conduct is disorderly, [109]   otherwise, in the ordinary way, any member of the public may attend a select committee meeting while the committee is hearing evidence.

A written submission may be released to the public by the committee at any time after the committee has received it. [110]   Committees routinely authorise the release of written submissions at the meeting following receipt of the submission. Where a committee does not authorise release in this way, the submission automatically becomes available to the public when the committee hears oral evidence on the submission from the person who made it. [111]   In any case, the person who made the written submission to the committee is at liberty to release it at any time. [112]  

Private evidence

A committee may decide to hear (in the case of written evidence, receive) evidence as private evidence. [113]   This means that the evidence does not become available to the public until the committee reports to the House on the bill or other matter to which the evidence relates. [114]   Until that point it remains confidential to the members of the committee. It cannot be referred to even in the House. [115]  

The suggestion that evidence be given in private may come from the committee itself, though it is more likely to come from the witness or potential witness. A witness may, before providing written evidence, ask that it be received by the committee in private. Wherever practicable, potential witnesses are informed that they may request this. [116]   Before giving evidence and at any time while they are being heard, witnesses may apply to be heard in private. All witnesses are informed of their right to make such an application before they appear before the committee. [117]   If a witness does ask to be heard in private, reasons must be given for making such a request. [118]  

Where a committee becomes aware that evidence contains allegations against a person, it is always obliged to consider whether it would be best to hear the evidence in private so as to limit the evidence’s potential damage. [119]   Furthermore, a person against whom allegations are made in private evidence that is retained by the committee must be given a copy of it, if it is in writing, or otherwise adequately informed of it so that he or she has an opportunity of responding to the allegations. [120]  

Apart from limiting damage to a person’s reputation, other reasons that may persuade a committee to hear evidence in private include: where a matter is before a court and hearing the evidence in private will avoid any prejudice to the case, where the evidence is personally embarrassing and where commercial confidentiality is involved. The Regulations Review Committee has heard evidence on draft regulations in private to preserve their confidentiality at the policy development stage. [121]  

Evidence may only be received as private evidence if the committee agrees by leave to receive it as such. [122]   A single member’s objection prevents it. Where a committee has agreed to hear oral evidence in private, the committee may require members of the public to withdraw from that meeting. [123]   However, the committee is not obliged to exclude all members of the public from a meeting while private evidence is being heard and there may be a good reason why a particular person or persons should be allowed to remain present – for example, to hear at first hand an allegation that is to be made against them. [124]  

Hearing evidence as private evidence gives that evidence a temporary confidentiality only, as no obligation of confidentiality attaches to it once the committee has reported to the House. [125]   Until that time any unauthorised disclosure of the evidence would be a contempt. [126]   It must be explained to a witness before he or she gives evidence that the confidentiality is only temporary and that if the evidence contains allegations that would seriously damage the reputation of a person it will be disclosed to that person. [127]  

Secret evidence

A long-term means of according confidentiality to evidence that a committee is to hear is to hear it as secret evidence. The suggestion that evidence be given in secret may come from the committee or from a witness. An application may be made before providing written evidence for that evidence to be received as secret evidence. If practicable, witnesses are informed of their right to make such an application. [128]   Before giving evidence and while giving it, a witness may apply to be heard in secret. Witnesses are informed of their right to apply to be heard in secret before they appear before the committee. [129]   A witness asking to be heard in secret must give reasons for the request. [130]  

As with private evidence, a committee can only declare evidence to be secret evidence by leave of the committee. [131]  

Furthermore, a committee may only receive secret evidence in either of two sets of circumstances—

•where the committee believes that it can only obtain the information it wishes to obtain if it can assure the witness or other person in possession of that information that the evidence given to the committee will remain confidential, [132]   or

•where the committee is satisfied that secrecy is necessary to protect the reputation of any person. [133]  

As a committee must be unanimous before according secrecy, it is a matter for the individual judgment of each member of the committee as to whether either of these circumstances is satisfied and that, furthermore, secrecy is justified. In making this judgment, members are aware that secrecy is an exception to the strong presumption that any evidence presented to a select committee should be made publicly known so that it can be tested and criticised before it is accepted as an influence on the making of public policy. It may be that in these circumstances a committee will forego receiving certain evidence because it does not wish to agree to secrecy being accorded to it.

Where evidence is to be heard in secret, the committee must require all members of the public to leave the meeting unless leave is given for any person to remain present. [134]   The committee may, by leave, permit any person to remain if there is good reason for this, such as if an allegation is to be made against that person. However, in the case of secret evidence it may be that allowing such a person to remain present or even disclosing the allegation to that person would defeat the purpose of according secrecy to the evidence in the first place (for example, in a situation involving domestic violence). Accordingly, a committee is given some discretion as to how it deals with an allegation against a person made in secret evidence. If the evidence is retained by the committee, it must communicate it to that person only if it considers that the possible damage to the person’s reputation outweighs any detriment that disclosure will cause to the witness who made the allegation (such as possible retribution). [135]   This is the only possible exception to the principle that a person against whom an allegation is made in select committee proceedings must be informed of the allegation and given an opportunity to respond.

Long-term confidentiality attaches to secret evidence. Not only may it not be disclosed while the committee’s inquiry is still under way (except to give a person a chance to respond to an allegation), it may not be disclosed even after the committee has reported, unless the House specifically authorises this. [136]   Before giving secret evidence a witness must be informed by the committee that the evidence could be disclosed to a person against whom an allegation is made and also that the House has power to authorise its disclosure after the committee reports. [137]   (See Chapter 24 for custody of select committee records.)

Proceedings other than evidence

The proceedings of each committee and subcommittee other than during the hearing of evidence are not open to the public and remain strictly confidential until the committee reports to the House. [138]   A similar restriction applies in respect of the premature disclosure of the committee’s report or draft report. [139]   Such proceedings cannot even be referred to in the House until the committee reports. [140]   An unauthorised disclosure of such proceedings would be a contempt of the House. [141]  

Partly, this rule is designed to maintain any temporary confidentiality that is warranted for the contributions that may be made by others, such as the committee’s advisers, to the committee’s work. But it is also designed to facilitate members of the committee working together on the tasks that have been assigned to them, respecting each other’s confidences and promoting frank and constructive contributions from them to the committee’s work. Apart from the promotion of a productive work environment, premature release of a committee’s proceedings is likely to be selective and not fully reflective of the work undertaken by the committee. These factors are held to justify the continuation of some restrictions on the public availability of certain committee proceedings prior to the committee reporting to the House. [142]   However, the fact that committees (other than during the hearing of evidence) carry out their work in private has been criticised. [143]  

Proceedings of committees that are confidential until the committee reports to the House include all proceedings relevant to the committee’s work on an item of business still before the committee. This covers: members giving notice of business, notices of meetings circulated, papers circulated for consideration at a meeting, communications with witnesses and advisers about their appearance or attendance at a committee meeting and other formal communications with the committee. (See Chapter 24 for reports and draft reports.) Unauthorised disclosure of these proceedings may be treated as a contempt. For this purpose disclosure by the committee or by a member of the committee of proceedings to another member or to the Clerk or an officer of the House in the course of their duties, is authorised. [144]   So members discussing select committee business among themselves (for example, in caucus) does not constitute a contempt.

Any disclosure of proceedings pursuant to the Standing Orders (for example, in order to fulfil natural justice obligations) is authorised. [145]   Thus the Auditor-General, as adviser to committees on the estimates, may consult with outside persons to ensure that proposed advice to a committee is correct and, with the committee’s agreement, may even disclose the nature of that advice to other persons if circumstances warrant it. [146]  

Proceedings may also be divulged by the committee or a subcommittee to any person for the purpose of that person assisting the committee or subcommittee in its consideration of the matter. [147]   This enables the committee to ask persons to comment on reports it has received that it does not wish to disseminate widely. Such comments are treated as private evidence (unless the committee declares them secret evidence). [148]   The committee should always make this clear to such a person on sending the proceedings for comment. [149]  

Matters no longer before the committee

While the House maintains restrictions on the disclosure of select committee proceedings that are current, there is no value in maintaining such restrictions in respect of business that is no longer before the committee or is not under active consideration by the committee.

All business before the House or a committee is automatically carried forward between sessions of the same Parliament. [150]   But all business before the House at the dissolution or expiration of a Parliament lapses, though it may be reinstated in the first session of the next Parliament. [151]   In order to preserve the confidentiality of business before select committees that has lapsed in this way until the House and the committees in the new Parliament have had an opportunity to consider whether they wish to reinstate or readopt business, confidential select committee proceedings remain confidential on dissolution or expiration, notwithstanding that they have lapsed. [152]   This confidentiality then continues to obtain for the first nine sitting days of the new Parliament. It ceases if the business to which it relates has not been reinstated by the House or has not been readopted by the committee concerned by that time. [153]  

There is also no point in maintaining confidentiality where a committee receives information or a communication relating to a matter on which it has already reported or where it receives a briefing or starts an inquiry which it subsequently discontinues. In either of these circumstances there is little likelihood that the committee will make a report to the House that makes the proceedings publicly available. Technically, therefore, they are likely to remain confidential to the committee until the end of the Parliament.

Consequently, it is now provided that where proceedings do not relate to business still before the committee, they may be disclosed. [154]   The onus is on members to ensure that such matters are no longer covered by the confidentiality provisions of the Standing Orders before disclosing them. [155]  

Matters of process and procedure

It has also been provided that members may disclose some current committee information where this relates only to process and procedure (such as the fact that a report is to be presented on a particular date or the appointment or non-appointment of advisers to the committee). [156]   While such process matters may be disclosed, this does not extend to members revealing information about the substantive business before the committee or that reflects or divulges the contents of a report or draft report of the committee or reveals a committee’s findings. [157]   Nor may a member disclose proceedings relating to process or procedural issues still under active consideration by the committee. [158]  

Again, the onus is on any member making a disclosure of select committee information to ensure that it may properly be disclosed. [159]  

Departmental officials

Where departmental officials are advisers to a committee they must take special care to ensure that information on select committee proceedings is not disclosed inappropriately. It is recognised that if committees ask for a Government point of view, this will necessarily involve inter-departmental consultation and, therefore, some sharing of select committee information with other departments that may not have adviser status with the committee. Disclosure is implicitly authorised in these circumstances. But where committees make simple information requests of a departmental adviser to the committee it may not be readily apparent to the committee that this will involve the adviser seeking assistance from another department. If this is the case, the advisory department is expected to seek the committee’s agreement to involving the other department or departments in the select committee work that is being undertaken. Authority to consult outside the public service departmental structure is never implied. If a departmental adviser wishes to share select committee information with a Crown entity, a State enterprise or any other person outside the public service, the adviser should always seek the committee’s agreement first. [160]  

Chairperson’s statement

Another authorised means of disclosing select committee proceedings before the committee reports to the House is by a public statement made by the chairperson. Such a statement can only be made with the agreement of the committee. It is confined to informing the public of the nature of the committee’s consideration of a matter. A subcommittee can authorise its chairperson to make a similar type of statement. [161]  

Such statements are made by chairpersons from time to time to announce the decisions made by committees as to how they propose to carry out their inquiries. A committee in deciding to conduct an inquiry, should always consider authorising the chairperson to announce this decision by means of a statement, even if detailed terms of reference for the inquiry have not yet been devised. [162]   A chairperson’s statement is not an appropriate means of announcing a committee’s conclusions on the business before it, even its provisional conclusions. Conclusions should be communicated to the House by means of a final or interim report. Where a chairperson does make a public statement, other members may comment publicly on it and refer to the committee’s proceedings insofar as they are disclosed in the statement. In the case of a statement announcing the decision of a committee to hold an inquiry, members are then free to talk about the committee’s proceedings leading up to it taking that decision. [163]   A chairperson can be asked a question in the House regarding any statement. [164]  

The power to make a public statement under the Standing Orders applies only in respect of an item of business that is before the committee. It does not apply once the committee has presented its report on the bill or other matter concerned to the House (or, in the case of a subcommittee, to its parent committee). After a report has been presented to the House any person can comment on and disclose the committee’s proceedings (except secret evidence); the chairperson is in no special position as compared to other members. [165]  

Written evidence

As late as 1928 it was still regarded as irregular for select committees to receive written submissions. Giving evidence to committees was properly regarded as an oral process transacted in person. [166]   But this view has radically changed. Written submissions may now be received by committees as evidence in their own right.

Written submissions are forwarded to the clerk of the committee and become part of the proceedings of the committee upon being received by the clerk on behalf of the committee. [167]   Witnesses are normally asked to supply sufficient copies of their submissions for the members of the committee. A committee may make a written submission available for general release at any time after receiving it, [168]   though where a witness requests that the evidence be received in private or secret the committee must consider the request before authorising the evidence’s release.

A committee has a continuing obligation to give a witness reasonable access to any material or other information that the witness has provided to the committee. [169]  

How many written submissions are received on an item of business depends upon the degree of interest in the bill or other matter. There may be no submissions received at all. [170]   On the other hand, the select committee considering the Employment Relations Bill 2000 received 17,369 submissions (15,064 of these were in a standard form). [171]   The submissions received by a committee are likely to be a mix of submissions from individuals, professional, sectoral and community groups (religious, health, political etc), and public sector organisations.

Return of written submissions

A committee is not obliged to accept a submission if it considers it inappropriate or undesirable that it should do so. It may return any evidence that it considers irrelevant to its proceedings, offensive or possibly defamatory. [172]   It may also return a written submission which contains an allegation that may seriously damage the reputation of a person, if it is not satisfied that the evidence is relevant or considers that the risk of harm to the person concerned outweighs the benefit to the committee of receiving the evidence. [173]   The committee itself cannot delete any material from a written submission but it can indicate to the witness that it will only receive the submission if it is resubmitted with the offending material omitted.

Oral evidence

Many written submissions are made as a prelude to the witness giving oral evidence to the committee. Indeed, witnesses are asked to indicate in their submissions if they wish to appear before the committee in person in support of their submissions. While not all persons who make a written submission also wish to give oral evidence (thus regarding their written evidence as sufficient), it would be unusual for a person who had not made an initial written submission to appear before the committee to give evidence in person (though this can happen where the committee identifies a person who has not made a submission but whom it wishes to hear from). Witnesses must always be given the opportunity to make a submission in writing before appearing before a committee to give oral evidence. [174]  

While a witness’s wish to appear in person before the committee will be met, if possible, committees are not obliged to hear all or indeed any of those wishing to appear in person. A committee’s ability to do so depends upon the time constraints under which the committee is operating. It is a matter for determination by the committee as to whether it hears oral evidence at all or hears all of the witnesses wishing to give oral evidence on the matter before it. [175]   A committee has appointed a subcommittee to help it make these decisions. [176]   While committees do have to make hard decisions as to how many persons wishing to appear before them can be heard in the time available, it is most unusual for a committee to decide to hear no evidence at all in person.

Oral evidence is heard in committee meeting rooms in Parliament House, Wellington (sometimes by videoconference or teleconference) or on marae and at other venues out of Wellington where a committee agrees to travel to other centres.

Videoconference and teleconference

Committees may hear oral evidence by videoconference or teleconference if they choose to do so. Teleconferencing has been used for some years. Videoconferencing was first used on 17 April 2002 for evidence presented to the Standing Orders Committee. Following this a three-month trial was undertaken. [177]   Permanent videoconference facilities are now established in Parliament House. Multiple simultaneous videoconference links have been employed in respect of a select committee hearing. [178]  

These technologies are used to enhance the public accessibility of the select committee process, particularly for potential witnesses who cannot afford to travel to Wellington to present their submissions. But they are not intended to eliminate committee visits to other centres and regions. Where there are a considerable number of submissions to be heard in a particular region it will still usually be desirable for a committee to meet in a regional centre to hear from the witnesses in person.

Videoconferencing and teleconferencing are only available for the hearing of evidence. [179]   They cannot be used for the transaction of committee business between members. Members must be present at the same physical location to participate in a committee’s proceedings. A committee meeting conducted by videoconference or teleconference has the same parliamentary privilege status as any other select committee meeting. But a witness participating from an overseas location is subject to the law of that jurisdiction (which may itself confer a qualified privilege for evidence given to a foreign, that is, the New Zealand, legislature). Videoconferencing and teleconferencing are not considered suitable for hearing private or secret evidence, though a witness giving evidence by one of these means has the right to request it.

Particular categories of witness

Ministers

Ministers have a right to attend and take part in the proceedings of a committee considering a bill of which they have charge, but without being able to vote on any question. [180]   As well as attending committee meetings as participating members (which is still uncommon apart from those committees, such as the Privileges Committee, of which Ministers are members in their own right), Ministers increasingly appear before committees as witnesses to give evidence and to submit to examination. Since 1994 Ministers have regularly attended the estimates examinations of the votes for which they are vote Ministers, leading a witness team consisting of the chief executive and other senior departmental officials. [181]   Where a Minister did not wish to appear with the chief executive on an estimates examination, the meeting was postponed at the Minister’s request to accommodate his wishes. [182]   The Minister of Finance is expected to attend the Finance and Expenditure Committee’s consideration of the Budget policy statement as a matter of course as the principal witness. [183]   Less often, but still occasionally, Ministers give evidence to committees considering bills or other matters with which they are officially connected.

Other members

Members generally, including Ministers, may voluntarily appear as witnesses before select committees. They are not subject to the coercive powers of committees and cannot be directed to take an oath or to answer a particular question. [184]   Apart from this limitation, where members do give evidence to committees they are treated in a similar manner to other witnesses. Members may give evidence to a committee of which they themselves are a member. In this case they change their status before the committee temporarily while they are witnesses because a member cannot simultaneously be a participating member of a committee and a witness to it. Thus, the chairperson of a committee can leave the chair to the deputy chairperson for the purpose of giving evidence to the committee.

Members often make submissions to the Standing Orders Committee and give evidence to the Privileges Committee. They occasionally give evidence to other committees too. [185]  

Public servants

The government department whose Minister is in charge of a bill will provide officials to assist the committee but it may also make a formal submission to the committee on the bill. As a general practice the department whose Minister is responsible for the bill represents the Government’s views to the select committee. A committee, of course, will accept a submission from any department. But the Government requires that departments wishing to make submissions on a Government bill should do so only with the express approval of their Ministers and of the appropriate Cabinet committee. [186]   Select committees have occasionally sought the Government’s approval for departments to be able to make individual submissions on measures before them. For instance, 13 departments made submissions on the Public Finance Bill 1989 after such an approach. [187]  

Officials always appear before select committees as witnesses on estimates and financial review examinations and the relevant government department will be invited to make a submission on a petition within its area of responsibility.

The State Services Commission has issued guidelines for public servants appearing before committees as witnesses in their official capacity. [188]   These emphasise that as witnesses public servants are acting on behalf of their Minister and to assist the Minister to fulfil the Minister’s accountability obligations to Parliament. Officials are enjoined to keep Ministers informed about their appearances before select committees and not to attempt to justify policy or suggest alternative policy proposals without explicit ministerial approval. Discussion of Government policy with a select committee is looked upon as the preserve of Ministers. [189]   As Ministers are responsible to the House for bills which they are promoting and for the general administration of their departments, it is regarded as being ultimately a matter for them to determine which of their officials represents the department before a select committee. [190]  

Officers of Parliament and officers of the House

The officers of Parliament (the Controller and Auditor-General, the Ombudsmen and the Parliamentary Commissioner for the Environment) and the Clerk of the House may give evidence to a select committee. They do so from time to time. No special authority from the House is required. Where an officer of Parliament who has been assisting a committee as an adviser is asked to give evidence to it as a witness, the officer’s change of status from adviser to witness should be clearly identified. [191]  

Judges

Whether judges ought or ought not, on constitutional or other grounds, to give evidence to a parliamentary committee on business before the legislature has been questioned. [192]   Judges have occasionally given evidence to select committees, whether at the invitation of a committee [193]   or on their own initiative. [194]   A committee has devoted an entire report to a briefing it received (partly in public and partly in private) from the Principal Family Court Judge on the work of that court. [195]  

A committee is quite likely to agree to hear a submission from the judiciary in private or even in secret and it has been argued that there is a convention that evidence received from members of the judiciary will be treated as private evidence. [196]   But there is no requirement that this occur and, in fact, judges have been heard at public hearings of committees. It is in every case a matter for the committee to determine by leave. Where a judge does appear before a committee, it is not out of order to refer to this fact later in debate in the House, nor is there any convention that would prevent such a reference being made. [197]  

Preliminary matters

Before appearing before a committee to give evidence, witnesses must be informed that they can ask to give evidence in private or in secret. [198]   The clerk of the committee informs the witness of this in the correspondence confirming the arrangements for the witness to appear. Prior to appearing, the witness may raise any matters of concern relating to the evidence to be given with the clerk who will bring them to the attention of the committee. [199]   Finally, a person who is to appear before a committee must be informed or given a copy of any evidence (other than secret evidence) or material in the committee’s possession that contains an allegation that may seriously damage the reputation of that person. [200]   In this way, if possible, the person is given prior notice of any allegation so that in giving evidence the witness can reply to it.

Representation

Any witness is entitled to be accompanied by counsel. [201]   The choice of counsel is a matter for the witness. But to appear as counsel a person must have been properly admitted to practice at the New Zealand bar, though need not necessarily be the holder of a current practising certificate. [202]   A member of Parliament who is legally qualified may act as counsel before a select committee provided that the member is not remunerated for the work. [203]  

The witness may consult counsel during the course of the meeting. [204]   In addition, counsel has a number of procedural rights. Counsel may make written submissions to the committee on the procedure to be followed by it and, with the committee’s agreement, may address the committee in person on this before the witness gives evidence. [205]   During the witness/client’s examination, counsel may intervene to object to a question on the grounds of relevancy or on any other ground. [206]   Counsel has the right to ask that the committee hears from further witnesses when the witness/client’s reputation may be seriously damaged by proceedings of the committee. [207]   In addition to these procedural rights as counsel, it is open to a committee to concede counsel other procedural rights if it sees fit such as, for example, the right to examine or re-examine the witness/client.

While a witness has a right to be accompanied by counsel, a witness may seek the committee’s agreement to be represented by any person. Although a committee is only obliged to permit representation by counsel it may, if it sees fit, permit representation by any other person, too. The procedural rights of such a representative is then a matter to be defined by the committee.

The appearance of counsel before the Privileges Committee is common. It is much less common before other committees and may attract comment from them. Only in exceptional cases should witnesses consider that they need to be accompanied by counsel. [208]   In particular, chief executives of public bodies are expected to be able to represent themselves before select committees to answer questions about the organisation’s performance without counsel, whatever their rights may be in this regard. [209]   In-house legal staff from departments and corporations are regarded as appearing as part of the department’s or corporation’s team of witnesses rather than as counsel, unless they specifically request this status.

Order of hearing witnesses

The order of hearing witnesses is determined by the chairperson subject to any direction of the committee. [210]   The scheduling of the witnesses’ appearances before a select committee is arranged by the clerk of the committee under the chairperson’s direction. Even after a schedule of witnesses has been prepared and advised to the committee, the chairperson can alter it, though the chairperson’s decision to do this can be overturned by the committee.

Conduct of examination

A witness is invited to the select committee table and seated at the opposite end from the chairperson, with members of the committee to either side. The chairperson announces the name of the witness to the committee and introduces the witness to committee members. At this point, if it is desired that the witness give sworn evidence, an oath or affirmation is administered by the clerk of the committee. [211]   However, this is rare.

The witness’s written submission will have already been distributed to the committee members. If it has not already been released by the committee, it becomes available at this point to the public. [212]   It is the invariable practice to take the written submission as read rather than for the witness actually to read it to the committee. The chairperson invites the witness to make an opening statement by way of overall summary or emphasis prior to questioning beginning.

Witnesses are questioned in such manner as the chairperson, with the approval of the committee, directs. [213]   Members may put questions to the witness through the chairperson, [214]   though this is not taken to prevent a member addressing the witness directly if the chairperson permits this, as is normally the case. The chairperson may begin the questioning or invite another member to do so. Other members will then be called upon in turn to put any questions they have. Subject to control by the chairperson, a member may re-examine the witness on more than one occasion and put supplementary questions during examination by another member.

Relevancy

All questions put to a witness must be relevant to the matter which is under consideration by the committee, though they do not necessarily have to arise directly out of the written evidence or the opening remarks of the witness. As with all questions of relevancy, the chairperson is the sole judge. The chairperson is required by the Standing Orders to ensure that questions are relevant and that they seek only information that is necessary for the purposes of the committee’s proceedings. [215]   The chairperson will intervene if he or she perceives that the questioning is becoming irrelevant to the subject before the committee. In addition, the witness or counsel to the witness may object to a question on the ground that it is not relevant. [216]   The chairperson, after hearing argument on the matter to the extent that the chairperson sees fit, decides if the question is relevant. If it is determined that it is, the question may be put to the witness again. If it is ruled not to be relevant, it is out of order.

Other objections to answer

Apart from relevancy, there are questions which it is not in order for a member to address to a witness in any circumstances. These include: questions which allege crime by identified persons, [217]   make charges against the private conduct of members [218]   or transgress the sub judice rule. [219]   If a question of this nature is asked, the chairperson may rule it out of order on the chairperson’s own initiative or following objection by other members, the witness or counsel.

A witness and counsel may also object to the witness having to answer a question on any other ground. In this case the witness must state the ground on which objection is taken. [220]  

In the case of objection by a witness to answer on a ground other than relevancy, the committee, not the chairperson, decides whether the question should be asked. It may decide summarily that the question should not be pressed, otherwise it must consider, in private, whether to insist on an answer. In taking this decision it must have regard to the importance to its proceedings of obtaining an answer to the question asked. [221]   It may be that the question is not important enough for the committee to insist on an answer from a witness, who is, after all, appearing voluntarily before the committee. It may be too that a witness’s reluctance to answer is a result of the public nature of the examination and that any concerns could be assuaged by having the answer given in private or secret. The committee will consider this option too. [222]   (Though, of course, the objection to answer may be made at a hearing that is already being conducted in private or in secret.) Committees have been urged not to insist on witnesses giving sensitive personal or commercial information in a public forum unless this is really necessary. [223]  

Grounds for objection

There is no list (comprehensive or indicative) contained in the Standing Orders of the categories of circumstances in which witnesses may object to answering questions that are otherwise relevant. One likely ground on which a witness might object – self-incrimination – was acknowledged as a legitimate ground for objection in the report recommending the Standing Order on objections to answer. [224]   While it is not listed as a specific ground for objection in the Standing Orders, it is a statutory ground for objection when evidence is being taken under oath.

A witness who is examined on oath before a select committee has a right to claim to be excused from answering any question which may be incriminating to the witness. If such a claim is made and the committee considers that an answer to the question is essential to its inquiry, it may report the matter to the House, which may then order the witness to answer the question. A witness who answers fully and faithfully after being directed to do so by the House is indemnified in respect of legal liability based on those replies, as those answers cannot be admitted as evidence against the witness in any civil or criminal proceedings (except for perjury). [225]   But examination under oath is rare.

The State Services Commission, in its guidance to departmental officials appearing before committees as witnesses, suggests that officials should apply the criteria in the Official Information Act 1982 in considering their responses to the information requests that are made of them. For example, if information would have been made available under that Act, it should, as a matter of course, be provided to a committee if requested. While the Act does not constrain the powers of the House, and departments should never refuse to provide information on the ground that it does, that Act does identify categories of sensitive information which, the State Services Commission suggests, officials may object to producing. These are—

•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

•maintaining constitutional conventions relating to the confidentiality of advice, ministerial responsibility and the political neutrality of officials. [226]  

The State Services Commission also asks its officials to bear in mind a number of conventions that have developed, before responding to a committee’s request for information—

•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 and the proceedings of Cabinet or its committees should not 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 the privacy of individuals or of individual bodies, particularly where that information has been given in confidence

•departmental officials are entitled to refuse to disclose opinion or advice given to Ministers without the agreement of the Minister. [227]  

Departments are also reminded that specific restrictions on the disclosure of information is contained in particular statutes. Whether these prevent the release of information to select committees is a legal question. (See Chapter 30.)

In any of these circumstances officials can be expected to object to answering a question or to producing information, at least in a public setting or without an opportunity to refer first to the Minister. It is always a matter for decision by the committee as to whether it will accede to any such objection. In Canada, the role of the public service as implementors and administrators of policy, rather than determinors of what that policy should be, has been seen as justifying some limitations on its obligations to respond to committees. For example, public servants have been excused from commenting on policy decisions made by the Government. It has also been said that “committees will ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which involve the giving of a legal opinion, or which may be perceived as a conflict with the witness’ responsibility to the Minister, or which is outside their own area of responsibility or which might affect business transactions”. [228]   The Australian Senate’s Procedure Committee has acknowledged that that country’s freedom of information legislation provides persuasive, though not binding, grounds for not producing information sought by a committee. [229]  

Objection overruled

If the committee decides that it does require an answer (perhaps in private or in secret), it informs the witness accordingly. [230]   The question is then put to the witness again. A witness who declines to answer a question in these circumstances may be held in contempt of the House. [231]   The committee may report the failure to answer to the House for it to take such action as it deems appropriate. [232]  

Conclusion of examination

When the examination concludes, the witness may be asked whether he or she desires to add anything to the evidence which has been given and will then leave the committee table. Often witnesses (especially departmental witnesses) agree to supplement their oral answers with written responses to questions asked of them during the examination but which require some research to answer adequately. Such questions for later written response are minuted and responded to subsequently in writing. Sometimes, too, the committee will supplement its oral examination of a witness with written questions to that witness. This is common in the case of estimates and financial review examinations. Such supplementary evidence is forwarded to the clerk of the committee for distribution to committee members.

Interpretation and translation

As in the House, English or Māori may be used in select committee proceedings.

In the Māori Affairs Committee’s meeting room (Maui Tikitiki A Taranga) facilities for simultaneous interpretation have been permanently installed. [233]   Interpreters employed by the Office of the Clerk provide the service at the request of the committee. Documents received by committees in one of the official languages may be translated into the other at the direction of the chairperson of the committee.

Interpretation and translation for non-official languages is not generally available. It is expected that a document submitted to a committee in another language will be accompanied by a translation into English or Māori. But special arrangements may be made in respect of an item of business of peculiar concern to a particular language group. [234]  

Responding to allegations

A major procedural change made in 1996 was the adoption of procedures designed to bring to the attention of persons any allegations that are made against them that may seriously damage their reputations, and to give them a right to respond to such allegations. Committees, and in particular committee chairpersons, should be alert to preventing irrelevant and unnecessary personal allegations being made in the first place. Select committee hearings are not occasions for personal vendettas. Even if an allegation is made, committees have power to expunge irrelevant allegations from the committee transcript and to return such written evidence. [235]   They are also obliged to consider seeking an order of the House permanently suppressing the evidence. [236]   But such actions may not be enough to remove the stain of an allegation that has entered the public domain.

Serious damage to reputation

The right to be informed and the right to reply arise where an allegation is made against a person that may “seriously damage the reputation” of that person. (A person includes an organisation, such as a corporation. [237]   ) Whether an allegation may cause serious damage to reputation is a matter for the committee to assess in deciding whether it must activate the information or reply provisions of the Standing Orders. Where allegations are directed at someone, the committee will wish to hear a reply to those allegations, in any case, so that it can make informed conclusions on them. This is especially so when allegations are made against a public body, which is, by definition, under a public duty to account to the House. However, mere criticism, especially of a public body, is not seen as amounting to a serious damage to reputation and thus requiring the application of the reply provisions. In these cases it is a matter for the discretion of the committee as to whether it does apply them. There is thus a threshold test that must be applied by committees in determining if the rights to be informed and to reply that the Standing Orders confer are engaged at all. In the political environment of parliamentary proceedings a higher threshold for criticism applies than might operate generally. This does not mean that a committee will never or ought never to permit rebuttal of criticism not amounting to a serious damage to reputation. Committees do invite or accept rebuttal in these circumstances, not least so that they are better informed about the issues before them. [238]   But committees are not obliged to do so unless the rebuttal Standing Orders are actually engaged.

Committees are therefore obliged to identify allegations in written evidence that may seriously damage the reputations of others and, if necessary, to take pre-emptive action by returning or expunging the evidence [239]   or hearing the evidence in private. [240]   Where it does receive such evidence, a committee must draw any allegations to the attention of those persons against whom they are made. In the case of a serious allegation made in advice received by the committee from one of its officials, the advice may be returned with a request that the allegation be expunged. [241]  

Information on allegations

A person who is about to appear before a committee must be informed of, or given a copy of, any evidence or material in the committee’s possession (other than secret evidence) that contains an allegation that may seriously damage that person’s reputation. [242]   It is then expected that that person, in giving evidence, will respond to the allegation. At the very least that person will thereby have an opportunity to do so. Anyone whose reputation may be seriously damaged by a committee’s proceedings can request from the clerk of the committee a copy of all material, evidence (other than secret evidence), records or other information which the committee possesses concerning that person. [243]   Such a request is considered by the committee and, if it considers it is necessary to prevent serious damage to that person’s reputation, the material is provided to the person concerned. [244]   It may, however, be provided in a different form to that requested so as to avoid undue difficulty, expense or delay. [245]  

Where a serious allegation is received or made in public or in private, the committee is obliged to consider whether to expunge it from any transcript of the hearing [246]   and whether to inform the person against whom the allegation was made, of the allegation. [247]   In the case of an allegation made at a public hearing, merely expunging the evidence from the transcript without informing the person concerned and giving him or her an opportunity to respond is not likely to be an adequate means of dealing with the matter.

In the case of a serious allegation made or received in secret, the committee is also obliged to consider whether to return the evidence or seek to suppress it. If no such action is to be taken, it must then inform the person against whom the allegation was made of it, if it considers that the damage to that person’s reputation outweighs any detriment to the witness who gave the evidence. [248]   In the case of a witness who reasonably fears violence or other retribution from the person against whom the accusation was made, the committee may conclude that any damage to that person’s reputation (limited in any case because the proceedings are secret) is outweighed by the personal danger disclosure would involve for the witness. This balancing of damage, however, applies only in respect of evidence given by a witness. If a serious allegation is made in secret by a member or by an adviser, [249]   the person must be informed if the allegation cannot otherwise be satisfactorily suppressed.

Response

Where a serious allegation has been made against a person, that person must be given a reasonable opportunity to respond to the allegation by written submission and personal appearance before the committee. [250]   The person (or counsel) may also ask the committee to hear evidence from further witnesses in that person’s interest. [251]   While the committee is obliged to consider such a request, it is not obliged to accede to it.

It may be that a person given an opportunity to respond to allegations made against him or her will decline to do so, [252]   or will be content to make a written response rather than also appearing before the committee to answer the allegation. A person appearing before the committee to answer an allegation made against him or her is a witness before the committee. Where an allegation was originally made in private or secret, a response to it will be treated as private or secret evidence, as the case may be. [253]   Even where the allegation was made in public, the person making a response can request to be heard in private or secret if this is desired. [254]   The person can be questioned on the response after making it to the committee.

How the committee deals with allegations and responses in its report to the House is a matter for it. It may decide not to include mention of them at all. On the other hand, it may simply record them without adding any comment of its own. [255]  

While the committee is obliged to give a person an opportunity to make a response, it and its members are not obliged to believe or accept the response that is made (or to believe or accept the initial allegation for that matter). If the matter is considered material enough to the committee’s work, the committee may make findings indicating that it does not accept the responder’s explanation – though if these are to be included in its report as adverse findings, that person must be given an opportunity to comment on them at the draft report stage. A committee has made a report putting on record a response to submissions made to it on a bill on which it had already reported. While it did not believe that the Standing Orders requiring it to seek a response had been engaged in that case, it nevertheless wished to ensure that all sides had an opportunity to put their views on record. [256]  

Expenses

Witnesses are not reimbursed expenses incurred in appearing before a committee except with the Speaker’s permission. [257]   Committees, chairpersons or other persons may not give any promise or undertaking that a witness’s expenses will be reimbursed without first obtaining the authority of the Speaker. [258]   This will generally be given only where witnesses have had to travel to Wellington twice because of the committee’s actions; for example, as a result of a last-minute cancellation of its meeting due to the House sitting under urgency. Where a committee invites a witness to give evidence for some special reason, the financial hardship of that witness may also be a good ground for reimbursement of expenses. A Government department has funded the preparation of a submission by private individuals on an inquiry being carried out by a select committee. [259]  

Official reports of proceedings

Until the First World War it was common for shorthand reporters to attend meetings of select committees to take and prepare verbatim transcripts of the evidence heard. These were printed along with the committee’s report and minutes, and published in the Appendices to the Journals of the House. This practice was considerably reduced as an economy measure during the First World War, and for many years afterwards a transcript of the evidence given to a select committee was rarely prepared.

Committees do have the power to decide to record evidence given at their meetings and, if they think fit, to have the evidence transcribed. [260]   Recording and transcription, where desired, is arranged by staff of the Office of the Clerk. Where evidence is transcribed, a proof copy is provided to the witness who is given a reasonable opportunity to suggest corrections. [261]   Corrections are accepted on the same basis as for the preparation of an official report of debates in the House. (See Chapter 5.) The committee may expunge evidence from the transcript that it considers to be irrelevant to its proceedings, offensive or possibly defamatory, [262]   and also expunge any evidence that contains a serious allegation against a person that the committee is satisfied creates a risk of harm to that person not justified by the benefit to the committee from the evidence given. [263]   (Though the fact that a committee has expunged evidence from a transcript does not mean that the evidence was not given on a privileged occasion. A committee cannot remove the protection that exists as a matter of law for proceedings in Parliament.)

Evidence that has been transcribed may be reported as an appendix to the committee’s report or as a separate volume of evidence. [264]   It has become the regular practice for the Finance and Expenditure Committee to include in its reports the transcript of the examination of some of its more important work, such as its examination of the Budget policy statement and the Reserve Bank of New Zealand’s monetary policy statement. Other committees also do this from time to time. The House has also itself specifically authorised the publication of evidence tendered to a select committee. [265]  

Endnotes:

  1. S.O.191(1).   [back]
  2. 1997, Vol.558, pp.641-2; 1999, Vol.581, p.154.   [back]
  3. 1999, Vol.581, p.154.   [back]
  4. 1981, Vol.439, p.2441.   [back]
  5. S.O.193.   [back]
  6. Ibid.   [back]
  7. 1987-90, JHR, p.1664.   [back]
  8. 1996-99, AJHR, I.22, p.560 (Social Security Amendment Bill).   [back]
  9. S.O.3(1).   [back]
  10. S.O.194(a).   [back]
  11. S.O.194(b).   [back]
  12. S.O.191(2).   [back]
  13. 1988, Vol.493, p.7280.   [back]
  14. S.O.191(3).   [back]
  15. S.O.206(1).   [back]
  16. 2002-05, AJHR, I.18B, p.34.   [back]
  17. S.O.206(2).   [back]
  18. Ibid.   [back]
  19. S.O.206(1).   [back]
  20. 1971, Vol.373, p.2080.   [back]
  21. 1991, Vol.515, p.2311.   [back]
  22. S.O.46.   [back]
  23. S.O.192.   [back]
  24. 1984-85, AJHR, I.14, p.8.   [back]
  25. 1991, Vol.513, pp.818-9.   [back]
  26. S.O.195(1)(a).   [back]
  27. S.O.194(a).   [back]
  28. S.O.195(1)(b).   [back]
  29. S.O.195(1)(c), (2).   [back]
  30. 2002, Vol.599, p.15303.   [back]
  31. S.O.195(1)(c), (2).   [back]
  32. 1988, Vol.488, p.3395-6.   [back]
  33. S.O.286(3).   [back]
  34. 1993, Vol.537, p.16847.   [back]
  35. 1976, Vol.408, p.3975.   [back]
  36. 1927, Vol.215, p.560.   [back]
  37. 1961, Vol.437, p.1287.   [back]
  38. 1976, Vol.408, p.4010.   [back]
  39. 2002, Vol.599, p.15303.   [back]
  40. 1990, Vol.510, p.3939.   [back]
  41. 1985, Vol.466, p.7006.   [back]
  42. 1991, Vol.518, p.4194.   [back]
  43. See S.O.178(1) (committee of the whole House).   [back]
  44. 1988, Vol.487, p.2918.   [back]
  45. S.O.195(1)(a).   [back]
  46. S.O.195(1)(b).   [back]
  47. 1988, Vol.488, pp.3395-6.   [back]
  48. 1988, Vol.487, p.2918.   [back]
  49. S.O.199(1).   [back]
  50. 2004, Vol.619, p.14944; 2004, Vol.620, pp.15382-3 (Fisheries and Other Sea-related Legislation Committee), subcommittee appointed to suggest which witnesses (of 3937) should be heard in person.   [back]
  51. 1999-2002, AJHR, I.17B.   [back]
  52. S.O.199(2).   [back]
  53. 1999-2002, AJHR, I.17B.   [back]
  54. 1977, Vol.415, p.3918.   [back]
  55. S.O.243(1).   [back]
  56. S.O.243(2).   [back]
  57. S.O.210(1).   [back]
  58. S.O.210(2)   [back]
  59. S.O.210(3).   [back]
  60. Ibid.   [back]
  61. S.O.209.   [back]
  62. S.O.205.   [back]
  63. S.O.174.   [back]
  64. 1912, Vol.161, p.547.   [back]
  65. 1991, Vol.512, p.156.   [back]
  66. 1984, Vol.459, p.1892.   [back]
  67. 1977, Vol.414, p.3394.   [back]
  68. 1997, Vol.562, p.3715.   [back]
  69. 1926, Vol.209, p.744.   [back]
  70. 1913, Vol.165, p.511.   [back]
  71. May, pp.751-2.   [back]
  72. Harris, House of Representatives Practice, p.667.   [back]
  73. 1996-99, AJHR, I.21B, p.12.   [back]
  74. Ibid., I.10A, p.34.   [back]
  75. May, p.752.   [back]
  76. Ibid.   [back]
  77. S.O.207(1).   [back]
  78. S.O.207(2).   [back]
  79. S.O.207(3).   [back]
  80. 2002-05, AJHR, I.18B, p.37 (Standing Orders Committee).   [back]
  81. S.O.214.   [back]
  82. 2002-05, AJHR, I.18B, p.37.   [back]
  83. 1999-2002, AJHR, I.23A, pp.10-11 (MMP Review Committee).   [back]
  84. 2000, Vol.584, p.2594.   [back]
  85. S.O.215(3).   [back]
  86. 1988, Vol.487, p.2918.   [back]
  87. S.O.215(3).   [back]
  88. S.O.215(2).   [back]
  89. S.O.215(1).   [back]
  90. S.O.400(o).   [back]
  91. “‘Unruly’ hearing closed”, The Evening Post, 24 February 1988.   [back]
  92. HC 308 (1968-69).   [back]
  93. 1996, Vol.556, p.13901.   [back]
  94. 1905, Vol.135, p.76; 2000, Vol.582, pp.1029, 1123.   [back]
  95. S.O.209.   [back]
  96. S.O.214.   [back]
  97. S.O.196(1), (2).   [back]
  98. 1996, Vol.555, p.12949 (Adoption Amendment Bill (No 2)).   [back]
  99. 2000, Vol.586, p.5168.   [back]
  100. Ibid.   [back]
  101. 1980, AJHR, I.17, p.7.   [back]
  102. 1987-90, AJHR, I.4E, para.3.1 (Reserve Bank of New Zealand Bill).   [back]
  103. 2002-05, AJHR, I.6C, p.8 (inquiry into public health strategies related to cannabis use).   [back]
  104. “Website set up for investigation into constitution”, The Dominion Post, 29 April 2005.   [back]
  105. 1996-99, AJHR, I.22, p.560 (community newspapers being suggested).   [back]
  106. 2000, Vol.586, p.5168.   [back]
  107. S.Os 223 and 240(1).   [back]
  108. S.O.223(1).   [back]
  109. S.O.215(1), (2).   [back]
  110. S.O.218(1).   [back]
  111. S.O.218(2).   [back]
  112. S.O.218(3).   [back]
  113. S.O.219(1).   [back]
  114. S.O.219(3).   [back]
  115. S.O.110.   [back]
  116. S.O.221(1).   [back]
  117. S.O.221(2).   [back]
  118. S.O.221(3).   [back]
  119. S.O.235(1).   [back]
  120. S.O.238(1).   [back]
  121. 1996-99, AJHR, I.16X, p.35.   [back]
  122. S.O.219(1).   [back]
  123. S.O.219(2).   [back]
  124. S.O.235(1).   [back]
  125. S.O.219(3).   [back]
  126. S.O.400(p).   [back]
  127. S.O.221(4).   [back]
  128. S.O.221(1).   [back]
  129. S.O.221(2).   [back]
  130. S.O.221(3).   [back]
  131. S.O.220(1).   [back]
  132. S.O.220(1)(a).   [back]
  133. S.O.220(1)(b).   [back]
  134. S.O.220(2).   [back]
  135. S.O.238(2)(b).   [back]
  136. S.O.220(3).   [back]
  137. S.O.221(4).   [back]
  138. S.O.240(1).   [back]
  139. S.O.241.   [back]
  140. S.O.110.   [back]
  141. S.O.400(p).   [back]
  142. 1997, Vol.562, p.3232; 2002-05, AJHR, I.18B, pp.43-4.   [back]
  143. See, for example, Peters, “Employment Relations Bill secrecy doing a job on NZ”, The Evening Post, 22 July 2000.   [back]
  144. S.O.240(2)(a).   [back]
  145. S.O.240(2)(b).   [back]
  146. 1999-2002, AJHR, I.15A, paras.5.3 and 8.2.   [back]
  147. S.O.243(2).   [back]
  148. Ibid.   [back]
  149. 2002-05, AJHR, I.17D, pp.4 and 7.   [back]
  150. Constitution Act 1986, s.20(1)(a).   [back]
  151. Ibid., s.20(1)(b).   [back]
  152. S.O.242(1).   [back]
  153. S.O.242(2).   [back]
  154. S.O.240(3)(a).   [back]
  155. 2002-05, AJHR, I.18B, p.46.   [back]
  156. S.O.240(3)(b).   [back]
  157. S.O.240(3)(b)(ii), (iii).   [back]
  158. S.O.240(3)(b)(i).   [back]
  159. 2002-05, AJHR, I.18B, p.46.   [back]
  160. 1996-99, AJHR, I.16P; “Public Servants and Select Committees – Guidelines”, State Services Commission, February 2002, updated February 2004.   [back]
  161. S.O.243(1).   [back]
  162. 2002, Vol.602, p.545.   [back]
  163. Ibid.   [back]
  164. 1978, Vol.417, p.660.   [back]
  165. 1999-2002, AJHR, I.17B, p.3.   [back]
  166. 1928, Vol.219, p.572.   [back]
  167. 1987-90, AJHR, I.15D, para.7.   [back]
  168. S.O.218(1).   [back]
  169. S.O.222.   [back]
  170. For example, 1992, Vol.530, p.11872 (Local Legislation Bill).   [back]
  171. 1999-2002, AJHR, I.22A, p.130.   [back]
  172. S.O.217; 1987-90, AJHR, I.4E, para.3.1.   [back]
  173. S.O.237(a).   [back]
  174. S.O.216.   [back]
  175. 1999-2002, AJHR, I.22A, pp.19-20 (Shop Trading Hours (Abolition of Restrictions) Bill).   [back]
  176. 2004, Vol.619, p.14944; 2004, Vol.620, pp.15382-3 (Foreshore and Seabed Bill).   [back]
  177. “Parliament tries video-conferencing”, The Evening Post, 18 April 2002.   [back]
  178. 2002-05, AJHR, I.5C, p.41(links to Apia, Auckland and Christchurch).   [back]
  179. Speaker’s letter to committee chairpersons, 1 May 2002.   [back]
  180. S.O.211(2).   [back]
  181. See “Entertainment tax looks likely to stay in place”, The Evening Post, 2 August 1994 (for the first appearance of the Minister of Finance following a Budget).   [back]
  182. Hansard Supplement, 2001, Vol.48, pp.1589-90.   [back]
  183. S.O.324(2).   [back]
  184. 2002-05, AJHR, I.18B, p.36.   [back]
  185. See, for example, “Mahuta won’t commit to Labour yet”, The Dominion Post, 5 October 2004 (member appeared before a committee to give evidence opposing a bill proposed by her party).   [back]
  186. Cabinet Manual, 2001, para.5.71.   [back]
  187. 1987-90, AJHR, I.4C, para.3.1.   [back]
  188. “Public Servants and Select Committees – Guidelines”, State Services Commission, February 2002, updated February 2004, paras.14 to 30.   [back]
  189. Ibid.; 2001, Vol.593, pp.10212-4.   [back]
  190. Wilson, “The Robustness of Conventions in a Time of Modernisation and Change” [2004] PL 407 at 419.   [back]
  191. 1999-2002, AJHR, I.15A, para.8.3.   [back]
  192. See Hanan, The Life of Chief Justice Way, p.212 (South Australian Attorney-General thought not; the judges themselves thought otherwise.)   [back]
  193. Reports of select committees for 1996, p.144 (President of the Court of Appeal on the Taxpayer Compliance, Penalties, and Disputes Resolution Bill 1996); 2002-05, AJHR, I.22C, pp. 854, 874 (Principal Family Court Judge on the Care of Children Bill 2004).   [back]
  194. 1996-99, AJHR, I.22, p.858 (Chief District Court Judge on the Land Transport Bill 1997); “Judges question job law changes”, The Dominion Post, 19 March 2004 (Employment Court judges on the Employment Relations Law Reform Bill).   [back]
  195. 1999-2002, AJHR, I.22B, pp.1328-33.   [back]
  196. 2002-05, AJHR, I.22B, p.672 (Justice and Electoral Committee).   [back]
  197. 1984, Vol.457, p.477.   [back]
  198. S.O.221(2).   [back]
  199. S.O.224.   [back]
  200. S.O.235(2).   [back]
  201. S.O.229(1).   [back]
  202. 1986-87, AJHR, I.15, Annex B.   [back]
  203. Ibid.   [back]
  204. S.O.229(1).   [back]
  205. S.O.229(2)(a), (b).   [back]
  206. S.O.229(2)(c), (d).   [back]
  207. S.O.229(2)(e).   [back]
  208. 1993-96, AJHR, I.18A, p.81.   [back]
  209. Ibid., I.7A, p.26.   [back]
  210. S.O.225(1).   [back]
  211. S.O.231(2).   [back]
  212. S.O.218(2).   [back]
  213. S.O.225(1).   [back]
  214. S.O.225(2).   [back]
  215. S.O.226(1).   [back]
  216. S.Os 226(2) and 229(2)(c).   [back]
  217. S.O.200(1).   [back]
  218. S.O.201(1).   [back]
  219. S.Os 111 and 112.   [back]
  220. S.Os 227 and 229(2)(d).   [back]
  221. S.O.228(1).   [back]
  222. S.O.228(3).   [back]
  223. 1991-93, AJHR, I.15, para.6.   [back]
  224. Joseph, “Report to the Standing Orders Committee on Natural Justice”, para.8.12.   [back]
  225. Legislature Act 1908, s.253(1) to (4).   [back]
  226. “Public Servants and Select Committees – Guidelines”, State Services Commission, February 2002, updated February 2004, para.22.   [back]
  227. Ibid., para.23.   [back]
  228. Marleau and Montpetit, House of Commons Procedure, p.864.   [back]
  229. Report of the Senate (Australia) Procedure Committee, Third Report of 1992.   [back]
  230. S.O.228(2).   [back]
  231. S.O.400(u).   [back]
  232. S.O.228(4).   [back]
  233. “MPs get direct language versions”, The Evening Post, 24 February 2000.   [back]
  234. 2002-05, AJHR, I.5C.   [back]
  235. S.Os 217 and 237.   [back]
  236. S.O.237(c).   [back]
  237. S.O.3(1); 1997, Vol.558, p.706.   [back]
  238. 1999-2002, AJHR, I.22B, pp.144-50.   [back]
  239. S.Os 217 and 237(a), (b).   [back]
  240. S.O.235(1).   [back]
  241. S.O.238(3)(a).   [back]
  242. S.O.235(2).   [back]
  243. S.O.236(1).   [back]
  244. S.O.236(2).   [back]
  245. S.O.236(3).   [back]
  246. S.O.237(b).   [back]
  247. S.O.238(1).   [back]
  248. S.O.238(2).   [back]
  249. S.O.238(3).   [back]
  250. S.O.239(1)(a).   [back]
  251. S.Os 229(2)(e) and 239(1)(b).   [back]
  252. 1996-99, AJHR, I.19D, p.225.   [back]
  253. S.O.239(2).   [back]
  254. 1996, Vol.556, p.13901.   [back]
  255. 2002-05, AJHR, I.19B, pp.310, 335-52.   [back]
  256. 1999-2002, AJHR, I.22B, pp.144-50 (Telecommunications Bill).   [back]
  257. S.O.230(1).   [back]
  258. S.O.230(2).   [back]
  259. Hansard Supplement, 2000, Vol.45, p.3934.   [back]
  260. S.O.232(1).   [back]
  261. S.O.232(2).   [back]
  262. S.O.217.   [back]
  263. S.O.237(b).   [back]
  264. See, for example, 1999-2002, AJHR, I.7B (containing the transcripts of evidence given on the inquiry into matters relating to the visit of the President of China to New Zealand in 1999).   [back]
  265. 1992, Vol.532, p.13286 (inquiry into contractual arrangements for flight inspection of aviation navigation aids).   [back]