Appointment and duration
Committees of the House
A standing committee may be appointed by sessional or standing orders or by resolution of the House. It has not been the practice to require a resolution for the appointment of the standing committees appointed under the standing orders. They commence to operate when Members are appointed to them and cease to exist only upon dissolution or expiry of the House. A select committee is appointed by resolution of the House. The committee ceases to exist on the presentation of its final report. The standing orders do not prevent any Member moving a motion for the appointment of a committee, but most motions brought to a successful vote are moved by a Minister.[58]
Joint committees appointed by resolution
A joint committee (other than a statutory committee) is established by a motion originating in one House and agreed to in the same terms by the other House. A proposal for a joint committee may originate in either House.
A resolution by the House proposing the establishment of a joint committee defines the nature and limits of the authority delegated to the committee in the same way as a resolution appointing a committee of the House. However, it also includes a paragraph stating:
That a message be sent to the Senate acquainting it of this resolution and requesting that it concur and take action accordingly.[59]
The Senate considers the resolution and may agree to its provisions, suggest modifications or reject the proposal altogether. Its decision is conveyed to the House by message. Where modifications are proposed, the House may choose to:
- accept them;[60]
- accept them and add modifications of its own;
- reject them;
- reject them and request the Senate to reconsider them;[61] or
- reject them and suggest an alternative.[62]
In the case of a total rejection, or a failure to respond to a message, the House may choose to appoint a committee of the House with the same purposes instead.[63]
Joint committees may be standing committees, usually established at the start of a Parliament, or select committees established for a specific short term purpose.
Joint statutory committees
A committee established under an Act of Parliament is required to be appointed as soon as practicable after the commencement of each Parliament. In practice this action is usually taken within the first few sitting days of the opening of the Parliament, when a motion appointing members to the committee is moved by a Minister in each House. If provided for by the relevant Act, a motion relating to the powers and procedures of the committee may also be moved. The committee continues in existence until the House of Representatives is dissolved or expires.
Avoidance of duplication of inquiries
Senate legislative and general purpose committees are prohibited from inquiring into matters that are being examined by Senate select committees.[64] There is no equivalent rule in the House. However it has generally been considered desirable for committees to endeavour to avoid duplication with the work of other committees—for example, in inquiries by the House Standing Committee on Aboriginal Affairs and a Senate select committee in 1988, there was considerable potential for duplication, but the two committees concentrated on different matters. Such considerations also apply in respect of joint committees—for example, in the 36th Parliament the Joint Committee of Public Accounts and the Joint Committee on Migration Regulations were careful to avoid duplication in their respective inquiries into the Business Migration Program and the control of visitor entry.
In the House the procedure for referral of legislation to a standing committee was designed to be used judiciously, rather than as a routine stage in the passage of a bill. This was partly for the reason of not wishing to duplicate Senate activity in this area, with the potential for the same submissions and witnesses.[65] In 2011 a House committee reported on a bill that had been referred to it by the Selection Committee, noting that a Senate committee was currently conducting an inquiry into the bill. The report stated that the committee did not consider that it could significantly add to the work already being undertaken and that duplication was likely from a further inquiry.[66]
If a general purpose standing committee intends to inquire into all or part of a report of the Auditor-General, the committee must notify the Joint Committee of Public Accounts and Audit of its intention, in writing.[67]
Effects of dissolution and prorogation on committees
Dissolution
Upon dissolution of the House all committees of the House and joint committees cease to exist. Even if a committee is appointed in the next Parliament with the same terms of reference, powers and title, it is in fact a different committee. Consequently, committees need authorisation from the House to have access to the records of and evidence taken by the previous committee. Standing authorisation is now provided by S.O. 237.[68] Any inquiries not completed at the dissolution lapse and must be referred to the new committee if they are to be completed.
The provisions of the Acts establishing each of the joint statutory committees determine that the committees are to be appointed at the commencement of each Parliament, and that their members may hold office until the House of Representatives expires by dissolution or effluxion of time.
Prorogation
Committees of the House and joint committees appointed by standing order or by resolution for the life of the Parliament continue in existence and their membership continues, but they may not meet and transact business following prorogation. They may meet again in the new session of the same Parliament. Inquiries commenced in the previous session are resumed without action by the House, except that if the subject of inquiry was referred to the committee by the House in the previous session, the subject is again referred by resolution of the House.[69] References by Ministers do not need to be re-referred.
A committee which is appointed on a sessional basis—that is, not for the life of a Parliament—ceases to exist upon prorogation. If the committee is to continue its activities in the new session, the committee and its membership must be re-appointed by resolution and its terms of reference renewed.[70] Standing order 237 authorises the new committee to use the minutes of evidence and records of the previous committee.
The Acts establishing each of the joint statutory committees provide that the committees are able to meet and transact business notwithstanding any prorogation of the Parliament.
Different positions taken by the two Houses
The effect of prorogation on committees has been a matter of some debate, and as noted below, the position traditionally taken by the House has not been adopted by the Senate. The practice of the House is reinforced by the following parliamentary authorities:
The effect of a prorogation is at once to suspend all business, including committee proceedings, until Parliament shall be summoned again.[71]
Committees appointed by standing order for a Parliament are terminated by a dissolution. In the case of committees appointed on a sessional basis, orders appointing them cease to have effect at prorogation.[72]
…a committee only exists, and only has power to act, so far as expressly directed by the order of the House which brings it into being. This order of reference is a firm bond, subjecting the committee to the will of the House; the reference is always treated with exactness and must be strictly interpreted …The House may at any time dissolve a committee or recall its mandate, and it follows from the principle laid down that the work of every committee comes to an absolute end with the close of the session.[73]
Even though the standing orders appointing the Library and House Committees until 1998 contained the words ‘shall have power to act during recess’, it is considered that the House alone has no authority to grant such power. There have been a number of instances where a resolution appointing a committee has purportedly empowered the committee to sit during any recess. However, as the resolution of appointment in each case lapsed at prorogation, the purported power was not valid.
On 18 February 1954 the chairman of the Joint Committee on Foreign Affairs was advised by the Minister for External Affairs by letter:
I have had the matter you raised in your letter of the 2nd February looked into—that is, the status of the Joint Committee on Foreign Affairs following on the prorogation of Parliament.
I find that the Solicitor-General’s view is that the Foreign Affairs Committee ceases to exist when Parliament is prorogued.
Despite this view of the Solicitor-General, it was given the power to act during recess when it was appointed for the life of the Parliament in 1959.[74]
When the Joint Committee on the Australian Capital Territory was first established as a sessional committee in 1956, it was given power to sit during recess,[75] but the power was not included in the terms of the resolution when it was re-appointed in the new session in 1957.[76] It was once again given the power to sit during recess when it was appointed for the life of the Parliament in 1959.[77]
In 1957 the House agreed to a Senate modification to the resolution re-appointing the Joint Committee on Constitution Review, which empowered the committee to sit during any recess. In speaking to the modification the Leader of the House, while acknowledging the correct constitutional position, made the following observation:
…We having decided that henceforth we shall have a session of the Parliament annually, and it being the desire, I think, of all members of the Parliament that committees such as the Constitution Review Committee, which has a valuable public service to perform, should continue to function in any period of recess between the prorogation of one session of the Parliament and the formal opening of another, there is sound practical sense in the suggestion that these committees be enabled to continue during any such recess.[78]
The power to sit during any recess was renewed on the re-appointment of the committee in 1958, but not in 1959.[79]
In considering the question of whether the Senate and its committees have the power to meet after a dissolution of the House of Representatives,[80] a Solicitor-General’s opinion of 23 October 1972 stated, in part:
During a session each House can control its own proceedings, exercise its powers and privileges and adjourn from time to time. However, once the Parliament is prorogued, I think each House would be effected [sic] in the same way as the House of Commons. Section 49 of the Constitution, in my view, has this effect, because it provides (there being no legislation of the Commonwealth Parliament on the subject) that the powers, privileges and immunities of the Senate and the House of Representatives and the members and the committees of each House shall be those of the Commons House of Parliament of the United Kingdom and of its members and committees, at the establishment of the Commonwealth. However, quite apart from s. 49, I think support for this view is found in ss. 1 and 5 of the Constitution and the constitutional theory which underlies them. The Houses are called together to exercise their functions as part of the Federal Parliament. At the discretion of the Crown and subject to certain constitutional safeguards the Crown can terminate the session. With the termination of the session, this power to deliberate and pass bills and their ability to exercise these powers as part of the Parliament ceases until they are called together again. It is consistent with this clear position, that between sessions neither they nor their committees should be able to exercise any powers. This could be found inconvenient to the work of committees but I think it is the effect of the provisions of the Commonwealth Constitution.
The same opinion drew attention to possible consequences of committees meeting without having the constitutional authority to do so:
…witnesses who gave evidence would not be entitled to the protection of the House and their evidence could be actionable at the suit of third parties or could be used to incriminate them. Likewise statements by [committee members] during hearings would lack the protection which the privileges of the House normally afford to [Members]. In camera hearings may be no protection. Witnesses who were summoned to give evidence would, of course, be well advised to refuse to do so. If they did, the [House] clearly could not meet to punish them. When ultimately it did meet there may be little purpose served in committing them for contempt because by then the [House’s] authority and protection would be available and they would, no doubt, willingly answer questions.
Other legal authorities have agreed with this view of the effect of prorogation on committees.[81] However, the Senate, supported by other legal opinion, has taken a different position.[82] A number of opinions relevant to this matter were presented to the Senate on 19 and 22 October 1984 when the Senate passed a resolution concerning meetings of the Senate or its committees after dissolution of the House.[83] Odgers reflects the position that Senate committees appointed for the life of a Parliament continue in existence until the day before the first meeting of the next Parliament, and Senate standing orders and resolutions of appointment give most Senate committees the power to meet during recess or following dissolution of the House,[84] and they have done so.[85]