Community Participation in Parliamentary Committees: Opportunities and Barriers


Research Paper 10 1999-2000

Kate Burton
Politics and Public Administration Group
30 November 1999

Contents

Major Issues

Introduction

Background to the Committee System

The Committee System in Brief

Senate Committees

House and Joint Committees

Overseas Comparisons

The Inquiry Process

Committee Hearings

Witnesses before Parliamentary Inquiries

Treatment of Witnesses

Community Access to Parliamentary Committees

Barriers to Community Participation

Process

Language

Time

Funding constraints

Conclusions

Appendix 1: Standing Committee on Procedure

Review of the House of Representatives Committee System

Summary and Recommendations

Appendix 2: Senate Committees

Select Committees

Legislation Committees

Reference Committees

Legislative Scrutiny Committees

Standing Domestic Committees

House of Representatives Committees

Domestic Committees

General Purpose Standing Committees

Joint Committees

Endnotes

 

Major Issues

Parliamentary committee inquiries are intended to serve several important functions in Australia's system of responsible parliamentary government. Generally speaking, these are: to report to and advise the Senate or House of Representatives on a bill or a matter; to perform an accountability role, scrutinising and reporting on the activities and performance of government departments and agencies; to enhance the deliberative powers of parliament by furnishing members with information and evidence on an issue before parliament, and through the participation of the members themselves in the inquiry; and to 'take the parliament to the people' through public hearings. These involve sections of the community in law making and policy review and contribute to the democratic process.

This last function is currently under review by the House of Representatives Standing Committee on Procedure. In March 1999 the Committee resolved to conduct an inquiry into the opportunities for community involvement in the procedures and practices of the House of Representatives and its committees, although its findings will be as relevant to the operation of Senate committees.

Changes in committee procedures, from the ways in which committees publicise hearings to the increase in the number of hearings held around the country, have made the committee system both more widely known and more accessible to the public. While not downgrading the positive participatory effects these changes have had, there are areas in which further changes could produce still further positive results. These areas are:

  • whether community input at the inquiry stage is effective, given that committee members often establish a position on a committee matter before attending hearings. Reports are often subsequently produced along party lines
  • whether evidence gathered at informal settings (for example in the open in the outback) has the same technical and authoritative status as that heard in a formal hearing environment (such as committee room in Parliament House)
  • if this is not the case, its implications, in terms of equal access, for members of the community who are unable to participate in hearings in formal environments (perhaps due to discomfort in such surroundings)
  • other access issues raised by the introduction of electronic communication, such as tele and video-conferencing, to conduct hearings. The result is often reduced access and participation for those who have limited or no access to telephones and other means of electronic communication
  • the treatment of witnesses by committee members, for example hostile questioning and disrespectful treatment, and
  • the use of interpreters for non-English speaking witnesses and translators to record evidence in Hansard.

These obstacles to fuller and more meaningful and equitable community participation in committee inquiries can be overcome with the development and implementation of written procedural guidelines which cover, for example, methods of attracting wider public interest and participation in the parliamentary committee process, standard provision of interpreters and translators for non-English speaking witnesses and the appropriate conduct of committee members when questioning witnesses.

Introduction

Parliamentary committees perform a number of important functions within Australia's system of government. These functions include:

  • scrutinising government activity
  • informing members on various issues
  • taking the parliament to the people, through public submissions and public hearings
  • opening the parliamentary and legislative process to the public, particularly by stimulating public debate on issues of significance
  • contributing to the formulation of better public policy by providing parliament with expert and informed opinion on specific matters before parliament, and
  • contributing to better legislation through the scrutiny of bills with regard to technical requirements and the safeguarding of fundamental personal rights and liberties.

On 10 March 1999 the House of Representatives Standing Committee on Procedure resolved to conduct an inquiry into the opportunities for community involvement in the procedures and practices of the House of Representatives and its committees. A focus of the inquiry is the use of electronic communication to increase community participation in committee inquiries.

This Research Paper looks at the current avenues for and barriers to community participation in committee inquiries. The Paper does not attempt to evaluate whether community input impacts on a committee's report and, in turn, whether this influences the content of government legislation or policy. Rather, the focus here is on the processes and procedures that facilitate or hinder participation.

The first section of the Paper provides an overview of the parliamentary committee structure and the significant changes it has undergone since 1901. The distinction is made in the second section between committees that call for public submissions and for witnesses, and those that are 'internal' to the Parliament.

The third section provides a brief description of overseas committee systems.

The fourth section of this research paper outlines the inquiry process. The focus here is on the means by which community participation occurs, and the nature of this participation. Problems with the process are pointed out, particularly the problem of the status of evidence heard in informal environments, as compared with the status of evidence taken in formal settings.

Evidence given by witnesses and the treatment of witnesses before committee hearings are the focus of the fifth section of the paper. Once again, problems are pointed out, such as the methods of questioning adopted by some committee members. The final section of the paper looks at questions of community access such as video and tele-conferencing and translating evidence for Hansard. It is pointed out that current practice amongst committees is not always consistent with general principles of equity and equal opportunity, nor are committee practices consistent amongst each other. (It is, however, beyond the scope of this paper to speculate why such differences arise.)

To set Australia's parliamentary committee system in an international comparative context, Appendix Three sets out, in two tables, the committee structure, and the powers of committees to call witnesses, in 18 countries.

While recent attempts to increase community participation in committee inquiries must be commended, the Paper shows that significant obstacles remain for many in the community whose views are often highly relevant to a matter before a committee. It is suggested that many of these obstacles would be overcome through the introduction of formal written guidelines, such as the anti-discrimination measures that operate in the public sector, that address issues such as: the appropriate questioning of witnesses; procedures for admitting evidence gathered informally; and the provision of interpreters and translators so that evidence given in languages other than English can be recorded in Hansard.

Background to the Committee System

Section 49 of the Constitution recognises the role of committees as instruments of Parliament by referring to:

The powers, privileges and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House...(1)

According to the House of Representatives Practice, however, there are other possible sources of authority for the appointment of committees (although the power to appoint committees is not in doubt). Apart from s. 49, two other sources are:

  • s. 50 of the Constitution, on the grounds that, to provide by standing orders for the setting up of committees, is to regulate the 'business and proceedings' of both houses of parliament, and
  • common law, according to which the establishment of a legislative chamber carries with it, by implication, powers which are necessary to the proper exercise of the functions given to it.(2)

Section 49, however, accords sufficient authority to the Senate and to the House to appoint committees of inquiry that reference to either of the other sources is not necessary.

The role of parliamentary committees is to perform functions that neither the Senate nor the House of Representatives is well suited to perform. For example, committees are set up to carry out investigations, to hear and evaluate expert evidence, to discuss matters in detail and to formulate informed and reasoned conclusions. These functions are more effectively performed by small groups of Senators and Members than by either chamber in plenary session. In addition, a number of committees can operate at the same time, which means that more business can be dealt with than if all matters were considered in Parliament. Committees also concentrate on specific issues and tasks, thus offering the benefits of specialisation.

Parliamentary committees play an important role in the democratic system of government. They provide the opportunity for individuals and groups to give their expert or informed opinion on matters being considered by the Parliament. The process whereby committees invite public submissions is also a means of raising public awareness of matters before Parliament. Committees of inquiry therefore have the potential to air interests that otherwise might not be presented either in public or before members of parliament. One way in which this is achieved is that, by calling for submissions from the public on particular issues, committee inquiries can attract a wider range of views than a department might canvass in preparing legislation. For example, in 1991 the Senate Standing Committee on Community Affairs recommended a range of amendments to the Social Security (Disability and Sickness Support) Amendment Bill 1991 after hearing evidence from affected groups. These groups felt that they had not been adequately consulted by the relevant department when the legislation was drafted. The Government agreed to the amendments proposed by the Committee to ensure that the legislation benefited the groups it was designed to assist.(3)

The Committee System in Brief

Senate Committees

Senate committees have been operating since 1901 and have changed in purpose and make-up since that time.(4) The current system is largely the result of the 1970 restructuring, at which time the Senate established a system of general purpose and legislative standing committees. These would 'stand ready' to inquire into matters referred by the Senate, including policy and administrative issues which covered the scope of government activity. Estimates committees were also established in 1970 to scrutinise the details of government expenditure. In 1989 they were given the task of scrutinising annual reports of government departments and agencies. Also at that time a new procedure was adopted for the systematic referral of bills to committees for scrutiny.

In 1994, following a report by the Procedure Committee into the Committee system, the Senate restructured its committee system by creating a paired system of standing committees: References Committees and Legislation Committees. The distribution of chairs was a central issue in the restructuring of the Senate committee system. Ministers did not want to relinquish control over the legislative agenda to committees chaired by non-government senators (particularly if that chair had a casting vote). The Procedure Committee therefore proposed a system whereby Legislation Committees would be chaired by government senators while the chairs of References Committees would be distributed amongst non-government senators, according to the representation of non-government parties in the Senate. Chairs of other committees were also distributed according to the representation of parties and independents in the Senate. Select committees were not affected by the restructuring, and they continue to have a mixture of non-government and government party majorities.(5)

The paired committees cover eight broad subject areas with different memberships. The Legislation Committees took on the function of the former estimates committees, and are still often referred to as 'estimates' committees. The restructuring was intended to result in more coordinated committee work, the incorporation of estimates in the general framework of the committee system and a more accurate reflection in committee chairs and members of the political composition of the Senate.(6)

House and Joint Committees

The committee system for the House has, like the Senate's committee system, undergone changes since its inception in 1901. For the first four parliaments (1901-1913) the only committees appointed by the House were select committees of the House itself. The first committee to be appointed looked into the Decimal System of Coinage (1901). Between 1913 and 1931, there were more joint committees of scrutiny than there were House committees, even after the establishment of a comprehensive system of general purpose standing committees by the House in 1987 (for the most part these are shadowed by the eight Senate standing committees). By 1991, however, the House relied for scrutiny work more on its own committees than it did on joint committees.(7) (In the early 1980s the House experimented with estimates committees. These lasted only two years and were government-controlled so operated under constraints.)

House committees are comprised of Members in proportion to the numerical strength of each group (parties and independents) in the House. Therefore, government members form a majority on each committee. Each committee is also chaired by a government member, although the deputy chair is held by an opposition member.

1994 saw the introduction of the Main Committee as an alternative venue to the House of Representatives for debate on specific business. The Main Committee is not a conventional committee. It has no investigatory powers and cannot take evidence from the public, although its meetings are open to the public and are televised on an in-house television monitor. It is really a forum for debate of non-contentious bills, so as to leave more time for debate on the floor of the Chamber. It handles the second reading stage of bills and considers in detail clauses of bills. It also debates committee and delegation reports and papers presented to the House, although disagreement on legislation is resolved in the Chamber. All members of the House are members of the Main Committee and are eligible to participate in its meetings. It is chaired by the Deputy Speaker, while the Chief Government Whip has primary responsibility for determining its agenda.

In May 1998 the House of Representatives Standing Committee on Procedure published a report titled Ten Years On: a Review of the House of Representatives Committee System. Amongst other things, it recommended a reduction of the number of committees and of the number of positions on general purpose standing committees. The reasons given for this were, first, to free up members' time and, secondly, to increase the resources that were available for any one committee. It also found that governments did not respond 'in a proper and timely manner' to committee reports and that the time made available for debating the reports in the Main Committee was inadequate.

The Committee also recommended that standing orders be amended to recognise less formal procedures, such as informal discussions, seminars and workshops, 'which have become an accepted part of modern committees' operations.'(8) This recommendation is consistent with the argument of the present paper. The summary and recommendations of the review of the House of Representatives Committee System is attached at Appendix 1.

No formal government response to the review has been submitted; however the government adopted several of the Committee's recommendations. These include:

  • reduction (to 10) of the number of members on general purpose standing committees to reduce members' workloads
  • evidence given in camera not be released by a committee without the agreement of witnesses (subject to a trial period)
  • recognition as appropriate inquiry procedure, the less formal processes used by committees to gather information, and
  • processes relating to the use of electronic communication, by committees and as a means of receiving evidence.(9)

An overview of the Parliamentary committee structure is attached at Appendix 2.

Overseas Comparisons

Australia is not alone is making significant structural changes to its system of parliamentary committees. The 1970s and 1980s saw a number of western democracies establish a system of permanent, specialised committees. Britain, Denmark and Spain all shifted from a system of ad hoc committee arrangements to a system of standing committees. Ireland did so in 1993, while Switzerland introduced reforms in 1991 that brought its previously unused specialised committees into use. Related to this development is the increased use of public hearings by parliamentary committees in western Europe. In Belgium, Sweden, Finland, France and Greece, committees scrutinising legislation began to hold such hearings for the first time in the last 15 years, while Italy and Germany have increased their use of public hearings. British academic and parliamentary observer Malcolm Shaw argues that these trends are part of a desire for 'fuller information and enhanced administrative accountability'.(10)

Committee powers vary across the number of European countries and contrast to the Australian committee restructure.(11)

The Inquiry Process

The inquiry process may vary from inquiry to inquiry as circumstances demand but usually consists of the steps outlined below.

  1. Initiation of inquiry, for example in the Senate Chamber after the bill has been introduced, on recommendation of the Selection of Bills Committee, or as a reference to a committee not based on a bill

  2. Reference received by the committee

  3. Advertisements placed in relevant major newspapers, and submissions invited from individuals and organisations

  4. Submissions received and, where appropriate, authorised for publication

  5. Committee may conduct on-site inspections, background briefings and seminars

  6. Committee conducts public hearings with selected individuals and organisations requested to give oral evidence

  7. Committee considers evidence and prepares report

  8. The report is tabled in the Parliament and may be debated

  9. Copies of the report are sent to witnesses and organisations and persons who made submissions, and distributed through Ausinfo bookshops as well as being published on the Internet

  10. Government considers report

  11. Government responds to report. Since 1973, governments have undertaken to respond to Senate committee reports within a specified period. This period has usually been three months. After 1994, however, when new standing orders were adopted which authorised the addition of dissenting reports, a new Senate resolution was added which requires the government to respond also to minority and dissenting reports, and any matters added to the report by a committee member.(12) Governments have, since 1978, responded formally to committee reports in the form of a statement to the House. Originally, the response had to be within six months, but in 1983 this was changed to three months.(13) Two hundred and forty seven reports have been tabled since the establishment of the committee system in 1987; of these, only 19 received responses within the three month period. Of the 68 reports tabled in the 38th Parliament, only 1 received a response within the agreed period.(14)

It should be pointed out that important, although informal, steps occur before a bill or a matter is referred to a committee of inquiry. A bill that is referred to a committee will have already been discussed and debated by the parties in their parliamentary caucuses. These caucuses develop binding party positions on a bill or other matter before it is presented to the House of Representatives. It is then that the bill is referred to a committee. Members of the committee which receives the bill or matter thus begin the inquiry with established and, for the most part, binding party positions.(15) Therefore, community participation in the committee inquiry process is more likely to be meaningful, in the sense that parliamentarians' views could be influenced, if it occurs before parties develop their binding positions on a matter before parliament. The use of seminars, workshops and conferences, which already take place, could therefore be expanded and included in an inquiry process as a matter of course, to ensure that the process is genuinely participatory and that committee members want to be informed.

Another early stage in the inquiry process-advertising the inquiry and calling for public submissions-raises the issue of the breadth of community participation in committee inquiries. Currently, each committee and inquiry uses what are deemed as appropriate means for informing relevant communities about an upcoming inquiry and for inviting submissions. Committees differ as to what means are deemed 'appropriate' and hence different practices exist across committees. Commonly, newspaper advertisements are placed in major metropolitan papers and on the Internet, although several committee secretaries note that advertising draws little response. Most responses are from groups and individuals who are already aware of the existence of the bill or who are contacted by politicians, their staff, or the committee secretariat.(16) Groups and individuals who are known to have an interest in a particular matter are often invited to make a submission. Specific groups can also be reached by selective advertising: for example, using rural newspapers to reach wheat growers who may be affected by a wheat marketing bill; or foreign language newspapers to reach residents of inner Sydney. Major and peak organisations are also contacted, with the expectation that these groups will inform their constituencies of the inquiry and pass on specifications for submissions. Other methods of informing communities include word of mouth (for example amongst remote Aboriginal communities whose access to daily newspapers may be limited).

Reliance on these methods, however, contributes to the problem of attracting the 'usual suspects' (that is, the obviously relevant interest groups) to make submissions to committee inquiries. For committees to reach beyond the 'usual suspects', and perhaps attract a broader range of community views, alternative methods of publicising inquiries have to be adopted. One of the main problems with attempting to publicise parliamentary activities and achieve greater public participation in parliamentary activities is the attitudes of many members of the public towards parliamentary affairs. Numerous studies show that the public has a distrust of parliamentarians and a cynical attitude towards activities of the parliament.(17)

It seems, then, that two major obstacles stand in the way of attracting greater community participation in committees. The first is that the existence of parliamentary committee inquiries are not, as a matter of course, publicised beyond major metropolitan newspapers. Efforts are made by committee secretariats to reach relevant individuals and groups but, largely due to time constraints, these efforts are focused on the most 'obvious' potential witnesses.

The second obstacle is to break down public perceptions of the irrelevance of parliamentary activities to their lives. Clearly this cannot be done only through the work of committees. At the same time, however, given that one function of the committee system is to 'take parliament to the people', a strong case exists to use innovative and experimental methods in order to fully carry out this role.

Depending on the subject under inquiry, a range of specific interest groups can be reached in the following ways:

  • greater use of the Internet. Committees currently advertise hearings on their Internet homepages, but more 'hits' might be attracted if links were arranged on the websites of organisations that are related to a particular inquiry
  • radio broadcasts. The Parliament may be able to negotiate relatively inexpensive air time with public, private and community broadcasters to advertise an inquiry. This method of advertising is likely to reach broader and more diverse audiences than advertisements in the major metropolitan newspapers. Given the strong political views often heard on talkback programs such as John Laws, many radio listeners might welcome the opportunity to make a submission to a parliamentary inquiry. The Parliament could use its own recording facilities to produce inviting advertisements, pitched at the appropriate audience, and have these played on air
  • the same might be possible with television air time, although the cost of this might be prohibitive
  • the format of newspaper advertisements could be altered with the aim of attracting submissions from a broader range of individuals and groups. The size and layout of the text and the inclusion of simple graphics or illustrations could be used to catch the attention of, for example, young people or, more generally, those members of the public whose attention would not be attracted by the coat of arms at the top of an advertisement. There is obviously an efficiency argument for using a standard format for calls for submissions. Once again, however, innovation in this area might help committees to carry out more fully their role of bringing parliament and the people (not just the 'usual suspects') together, and the cost of small alterations to the standard format need not be excessive, and
  • informing the public at Parliament House. Visitors to Parliament House would not be aware that committee hearings are in progress-there are no signs in the foyer indicating that a public hearing is being conducted and that the public is welcome to attend. The lack of such information reinforces the separation between, on the one hand, the public as mere onlookers at Parliament and, on the other hand, the public as participants in the parliamentary process. A sign in the foyer could list the hearings in progress and encourage visitors to Parliament House to sit in, just as they do in the Chamber. Information could also be provided about the committee system and the procedures for making submissions and attending hearings as a witness.

Committee Hearings

The format of the proceeding can vary, from the standard format of statement/question/answer to the more relaxed, and less frequent, round table and seminar formats. Regardless of the surroundings-a committee room in Parliament House or a tin shed at the local racetrack-the hearing process is governed by parliamentary privilege, by rules set out in the conduct of proceedings (covering matters such as meeting and election of a chair, quorum, equally divided votes and disclosure of evidence(18)) and by resolutions of the Senate and of the House relating to the protection of witnesses (outlined below). Relevant rules of both Houses apply to committee proceedings, for example offensive language and personal reflections, although the examination of witnesses is generally conducted in a relatively relaxed fashion.

Evidence heard at hearings conducted in committee rooms at Parliament House in Canberra can be supplemented by informal sessions and site inspections. For example, the Standing Committee on Foreign Affairs, Defence and Trade spent a day on HMAS Swan as part of its inquiry into sexual harassment in the defence force. Other site inspections have occurred as part of inquiries into environmental issues, transport matters and rural issues.

Round table discussions and seminars could also be effective means by which committees gather information and hear the views and opinions of relevant members of the community. The Standing Committee on Finance and Public Administration held a conference in association with the University of Canberra on public service reform. The conference involved public servants, academics, unionists and journalists and the papers were prepared by the Committee as its report. The aim of the process was to contribute information and debate on the topic of public service reform.(19)

Research conducted into witnesses' perceptions of the inquiry process indicates that many find the round table, seminar and workshop sessions less intimidating and more effective in communicating their views than formal hearings. The following comments were made by witnesses who participated in a round table discussion:

'microphones formalised the event [but] the layout was not intimidating'

'[an] effective exchange of views. Perhaps drew out views more'

'to some extent it was not 'informal' but it was not a grilling', and

'I liked the informality and the ability to canvass issues'.(20)

Peter Keele of the Committee Office was interviewed as part of the same research and he commented on some of the benefits of the less formal approach of the round table:

'the witnesses can immediately respond/rebut/support a comment that another witness has made. Thus a witness does not have to rely on the particular matter coming up again in his/her subsequent question and answer session with the Senators, or have to come back to the Committee to be heard again'

'it can save the time of the Committee by bringing all people to the table, instead of one at a time'

'it can improve the value of the evidence and allow the lines in a debate/discussion to emerge simultaneously'

'it can increase the effectiveness of the hearing process in general and perhaps ultimately the Report'.(21)

Public meetings have also been used in preliminary stages of an inquiry, where there is widespread community interest in an inquiry and a large number of persons involved. In such cases the formal hearing procedure would be time consuming and probably would produce repetitive statements. House of Representatives Practice states that 'Public meetings not only enable committee members to be exposed to community attitudes but also to provide an opportunity for a large number of private citizens to put their views to the committee'.(22)

These informal procedures have a number of benefits and are particularly useful in certain kinds of inquiries. For example, in its field trips around the country, the Standing Committee on Aboriginal and Torres Strait Islander Affairs conducts discussions with Aboriginal communities and groups, as well as other community organisations. These discussions allow a freer flow of information and exchange of views than might be the case in a formal environment such as a committee hearing room at Parliament House. There is also the likelihood that those who are unwilling to place themselves before a public committee hearing may feel more comfortable expressing their views in another, perhaps more familiar, environment.

Witnesses before Parliamentary Inquiries

As was noted above, not all committees hold public hearings and hear evidence from the community, and witnesses who do appear before a committee appear for different reasons. Witnesses may be called before a committee either because they are public servants, and have knowledge about a particular government program or policy that is of interest to the committee, or because they are stakeholders in the community which has an interest in the matter under inquiry. A witness may also be asked to appear before a committee because they are considered to be an 'expert' in a particular field.

In order that committees are effective in their role of information-gatherers, they have the power to summon witnesses.(23) In practice, however, the power to compel witnesses to attend committee hearings and to produce documents is rarely used. Inquiries usually proceed on a voluntary basis, beginning with the invitation to make submissions, to produce other documents and to give oral evidence before the committee.

If a witness is subpoenaed, failure to appear and to produce documents may be punished as contempt, and can result in imprisonment. Witnesses do, however, possess legal protection in respect of the evidence they provide to committee inquiries. Under the Parliamentary Privileges Act 1987, witnesses appearing before a committee have the same legal immunities of protection afforded to Senators and Members in proceedings of Parliament. This protects against prosecution, suit, examination or questions before a court or tribunal. Witnesses are also entitled to protection, under the powers of the Senate and of the House, from any adverse consequences that arise from their giving evidence.(24) The following procedures have been adopted by the Senate in order to protect witnesses (in practice the House also abides by these although not all have been formally adopted):

  • witnesses are normally invited to appear, and are subpoenaed only when a committee decides that the circumstances warrants the issue of a summons
  • a formal order for the production of documents is, similarly, only made when the committee decides that the circumstances warrant such an order
  • witnesses are given reasonable notice of the hearing at which they are to appear and are supplied with a copy of the committee's terms of reference, a statement of matters expected to be dealt with during the witness's appearance and a copy of the procedures
  • witnesses are given the opportunity of providing written evidence before being invited to give oral evidence
  • witnesses are offered the opportunity to give evidence in camera, although a committee may refuse if it is considered that the evidence should be heard publicly
  • witnesses may refuse to answer any questions, and the committee must consider whether it will insist upon an answer to the question
  • persons must be given reasonable opportunity to respond to evidence adversely affecting them, and
  • an officer of a department of the Commonwealth or the State shall not be asked to give evidence on matters of policy and shall be given reasonable opportunity to refer questions asked of them to the relevant superior officer or Minister.(25)

Evidence of witnesses is recorded in Hansard, although evidence taken in camera is recorded but not published. A committee may decide, at a later stage, to publish the evidence and witnesses are therefore warned before giving in camera evidence that this may occur. A proof of the Hansard record is provided to witnesses so that they may make typographical or factual corrections before the committee's final report is published.

There is no requirement that witnesses be sworn (except in hearings before the Privileges Committee), although both Senate and House committees have the power to take evidence on oath. In most cases this power is not exercised. As pointed out in Odgers' Australian Senate Practice, however:

[t]he swearing in of a witness has no effect on the witness's obligation to provide truthful answers to a committee or on the Senate's [or House's] ability to deal with a recalcitrant or untruthful witness. Nor does it affect the privileged status of committee proceedings. A witness who gives false or misleading evidence, or evidence which the witness does not believe on reasonable grounds to be true or substantially true, may be guilty of a contempt regardless of whether the witness was sworn.(26)

Committees may choose not to exercise their power to take evidence on oath or affirmation for one of two reasons. One is that it creates an unhelpful distinction between witnesses, and their evidence, who take an oath and those who do not. The second is, where witnesses are providing a committee with their views or opinions on a matter, the taking of an oath may not be appropriate and may inhibit the free flow of information.

Treatment of Witnesses

Witnesses before parliamentary committees can be subject to intense questioning, which can be interpreted as hostile by some witnesses. The House of Representatives Standing Committee on Procedure recently conducted a review of the House's committee system. It reported that:

The committee received a number of submissions from Members and the public concerning the manner that witnesses have been or should be dealt with by committees. A number of submissions received from private citizens strongly complain about the treatment of witnesses during a particular inquiry. They were particularly concerned about aggression shown to witnesses expressing views which differed from those of some Members. They also complained about the lack of attention shown by Members at various stages during hearings.(27)

A survey of witnesses who had appeared before a parliamentary inquiry provides further evidence that their experience of committee hearings can be negative. Comments made during that survey include:

'Senators directly attacked myself and the other person who I presented a paper with'

'The Senators were interested in using Committee witnesses as political footballs'

'some Senators were far more interested in hearing their own ideas. One in particular could only be described as ill-informed and arrogant-if not unpleasant'

'some were rude and hostile'

'Some senators were self-seeking and rude to witnesses'

'... were interested in discrediting me and attacking my evidence'.(28)

Under these circumstances it is unlikely that the witness would feel that their participation was welcome and valued (and would hence think twice about participating in future). On the positive side, other witnesses interviewed for the same survey had positive comments about their experiences. Notwithstanding some scepticism about the effectiveness of their personal interventions on the outcome of the inquiry, comments such as those below suggest that these witnesses valued the opportunity to participate directly in the democratic process and therefore that they would be prepared to give evidence again.

'Senate Committee Inquiries are essential to the democratic process and are to be encouraged in the event that contentious community issues are raised.'

'For all the problems of mechanics in holding these hearings they are a vital part of the democratic process.'

'The Committee process is vital to democracy. It recognises that members of the community have a role to play in decisions of government.'

'At this stage I am not sure of the effectiveness. What I appreciated was (a) being given the opportunity (b) the warmth of the two Senators who spoke informally in the break and (c) the nature of the questioning that took place.'

'It is important to have direct access to Senators. Responding to inquiries through government departments can be long and seemingly fruitless in purpose.'(29)

A factor that often influences the manner of questioning individual witnesses by committee members seems to be that committee members participate in inquiries when their political views on a matter or a bill are already determined. Rowen's survey included the following comments:

'It is an adversarial game for the opposite teams in parliament. Truth doesn't seem to be important or relevant.'

'The great value of the process is the exchange of ideas and points of view. This tends to get lost in political infighting.'

'It was largely a political platform for Senators.'

'Party lines are well grounded. Material is normally grain for the mill depending on what evolves from the menu of opinion or bias of those proffering information.'(30)

As was pointed out earlier, some inquiries are more politically charged than others. The strength of opinions of committee members, and hence their attitude towards witnesses, are probably largely determined by how 'political' the inquiry is. Still, while it is not unreasonable to expect committee members to have political positions and/or informed views on a matter of public policy, the purpose of holding an inquiry is defeated if these positions and views are not negotiable. John Uhr, who has experience as a Senate committee secretary, writes that:

As individual parliamentarians, members of each committee have declared party preferences on the vital policy issues of the day. But as committee members, each individual has accepted that their official responsibility is confined to that process realm of quality assurance which is capable of a consensual treatment ... It is basic to the mission of committees that their task can be performed with a degree of parliamentary professionalism, which (while it cannot be expected to suffocate partisan disagreement) can confine the committee focus on to the responsibilities of process, both within committees and within government.(31)

On the issue of hostile treatment of witnesses, the Procedure Committee included in its recommendations an amendment to standing orders to include the requirement that 'witnesses shall be treated with respect and dignity at all times'.(32) Written guidelines could also include instructions to committee Chairs on how to direct committee members to ask appropriate questions. It is, however, ultimately the Chair's responsibility to ensure that committee members question witnesses in an appropriate manner.

Community Access to Parliamentary Committees

Part of the evolution of the Committee system includes an increase in the number of hearings held at locations other than Canberra. The advantage of committees travelling out of Canberra is that they can hold hearings in locations where witnesses may be concentrated. The committee of inquiry into the Workplace Relations Bill, for example, visited 13 cities and regional centres and held 18 public hearings.(33)

In 1997 standing orders were amended to allow Senators and witnesses to participate in committee inquiries via video and audio-conferencing. This enables committees to take evidence from remote locations, where people may not otherwise be able to attend hearings. Video-conferencing is not, however, a preferred means of gathering information and evidence, for several reasons. These include problems such as delays between the sound and the picture, the lack of interaction, in the form of eye contact and other body language, between witnesses and committee members, and the removal of the opportunity for informal contact between witnesses and committee members before and after the hearing.(34)

Other provisions designed to increase community access to committee inquiries include: providing access for people with physical disabilities so that they can more easily attend public hearings; providing evidence and reports in braille for people who are visually impaired; oral copies of evidence; and the provision of committee reports free of charge upon request.(35)

Barriers to Community Participation

Process

As was mentioned earlier in the paper, one of the informal stages in the committee process is the deliberation by parties as to their position on a particular inquiry. Committee members therefore begin hearings unlikely to be swayed by voices and arguments that conflict with this party position. Meaningful community participation in the committee process occurs when lobby groups and other interested (and well-connected) groups and individuals influence the development of this party position. For those individuals and groups within the community who do not have such access to party and committee members, their participation in the committee process is comparatively reduced, if not nullified.

That an inquiry is being held into ways of increasing community participation in the committee system indicates that such participation in the committee system is seen generally as a positive thing. Committees already make use of public arenas such as public meetings, seminars, workshops and round table discussions to canvass a cross section of community views. More use could be made of forums such as these to increase the opportunities for the public to participate in policy debate at the stage where participation in meaningful and effective.

Language

In the last two years the issue of translating evidence from languages other than English, particularly Aboriginal languages, has become more of an issue for committees than it previously has been. This is partly due to the increased number of committee inquiries on matters involving Aboriginal and Torres Strait Islander people, and partly because of an increased sensitivity to the need for their inclusion in certain inquiries. But this inclusion has brought with it new issues for committees and for the Hansard reporters who record evidence. Two important issues are, first, whether to travel to remote communities or ask members of those communities to travel to the nearest regional centre. Different committees adopt different practices, with some paying for community members to attend hearings in Canberra while others expect that those who wish to give evidence will use their own resources to attend a hearing. A second issue relates to hearing evidence in language other than English. Some committees provide interpreters and translators as a matter of course, while others make a decision based on factors such as whether the evidence is useful for the development of public policy or whether the committee secretariat has been given notice that an interpreter was required.

Problems exist however, because there are no strict procedures for dealing with the issues above. It is left, for the most part, to the discretion of each committee to decide, for example, whether to pay for a witness to travel from Townsville to Canberra for a hearing. While some committees regard such expenses as necessary to secure adequate participation in the committee process, for other committees it amounts to paying witnesses to give evidence-something that committees are neither required nor funded to do.

The same discretion occurs in the provision of interpreters and translators (for Hansard) for witnesses giving evidence in languages other English. Different committees have different procedures. For example, a committee might not only pay for interpreters at hearings, but also pay for the evidence to be translated into English for Hansard (Hansard does not offer translating services). This occurred in March 1999 when the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs travelled to the Northern Territory collecting evidence as part of its inquiry into the Reeves Report into the Aboriginal Land Rights (Northern Territory) Act.(36) The Committee heard evidence from 21 Aborigines from Daguragu; this evidence was heard, for the most part, in language and was interpreted for the committee members and translated to become part of the official record of the inquiry in Hansard.(37) By contrast, another committee might be more ad hoc in its approach and not, as a matter of course, arrange (and pay) for evidence to be translated for Hansard. While discretion in such matters gives committees the opportunity to make special arrangements where required, it can also result in differential treatment of witnesses, where some are aided and encouraged to participate in the committee process, and others are effectively discouraged.

Indigenous Australians is not the only group which, because of reasons such as geographical location, English language proficiency and historical exclusion from the political process, are not, at this stage, always well served by the public hearing process of committees. Some of the concerns of this and other groups, such as recently arrived migrants, are represented by organisations familiar with the committee system and its procedures. In the case of migrants, such organisations might include the Ethnic Communities Council of New South Wales, the Refugee Resettlement Working Group and the Immigration Advice and Rights Centre. These organisations are experienced and practised at preparing submissions and presenting oral evidence to committees, and are thus in a position to effectively represent the interests of those affected by proposed legislation or policy. Their proficiency in these areas is the main reason why they are invited by committees to submit evidence and present at hearings.(38)

Concern has been expressed, however, about the impact of restricting witnesses to members of major (and perhaps more 'obvious') organisations. The dissenting report of the Senate Community Affairs Legislation Committee's Report on Child Care Payments Bill 1997, Child Care Payments (Consequential Amendments and Transitional Provisions) Bill 1997, for example, stated that the Committee:

restricted consultation by ... calling only a few of the many organisations with an interest as witnesses, and by not providing opportunities for parents to address the Committee ... limited witnesses to peak national organisations, which prevented the full range of groups concerned about changes to childcare payments appearing before the Committee.(39)

While the examples of the Child Care Payments and Native Title inquiries do not necessarily reflect on individual members of the Committees, they do, however, illustrate that the public hearing procedure of committees does not guarantee that all relevant voices will be heard.

It may be that, to continue to function equitably and effectively, the committee system needs to adapt to the changing demands being made of it. Tele- and audio-conferencing and conducting public hearings around the country are significant steps in the direction of enabling greater community access to and participation in parliamentary committees. But by opening the process in this way, new needs are created, as the case of the Kimberley inhabitants illustrates. It is all very well to 'take the parliament to the people' but, once there, it is of little use if the people cannot communicate with its representatives. To give meaning to the intent of 'taking parliament to the people', language needs, in particular, need to be addressed.

Time

Other barriers to fuller community participation in the committee process are the short time frames given for preparing submissions. Some individuals and groups who are 'tapped into' the process are aware of an upcoming bill, and so can prepare submissions before they are publicly called for. This mitigates against those other than the 'usual suspects' making submissions. It must be recognised that committees, particularly legislative committees, often have very short time frames in which to report and in such circumstances have little option but to provide only a few days or a week in which submissions can be lodged. (This is often to do with the government's legislative program.) However, in other cases a short time in which to report is a deliberate tactic by which to minimise critical submissions.(40)

A related issue is that committee hearings often run behind schedule. Many witnesses will have transport plans, or work and childcare commitments that make such delays inconvenient and may discourage them from giving oral evidence in the future. While delays are often unavoidable, committees could warn witnesses of the possibilities of running behind schedule (in the same way as specialists often warn patients of possible lengthy delays).(41)

Funding constraints

In 1996 the Government announced cuts to funding for parliamentary committees, as part of a drive to reduce the running costs of the five parliamentary departments. The cuts affected House of Representatives committees more than Senate committees (which were affected mainly by a cap on funding). Rather than cut the number of committees, staff numbers were cut, leaving fewer staff to carry out the work of the committees.(42) These cutbacks have some important implications. First, fewer resources limit the ability to advertise inquiries so as to ensure the greatest community awareness and receive the broadest range of submissions as possible. Second, other means of achieving greater community access to committee inquiries, such as providing interpreters and/or translators, travelling to remote locations and the time-consuming process of organising workshops and seminars which precede formal hearings, are, in an environment of limited resources, not likely to be funding priorities. Third, funding constraints and staff reductions are accompanied by increased reliance on electronic means of communication. It has already been mentioned that video-conferencing carries with it problems in communication. Access issues arise, though, when communication is skewed towards electronic means, and access to computers (for e-mail and Net access), televisions and even telephones is still limited or unavailable to the wider community.

Finally, funding constraints can be used or threatened by a government to inhibit or prevent inquiries into particular topics. This is especially relevant to Senate committees, which are not dominated by government members.

Committees need to have formal guidelines which include an explicit commitment to greater equity in access, (just as other organisations, public and private have, or are required by law to conform to, for example the Sex Discrimination Act 1984 and the Racial Discrimination Act 1975). This is not an unreasonable position, given that parliamentary committees are intended partly to function as a vehicle for greater community participation in government.

Conclusions

Parliamentary committees have an important role in contributing to Australia's system of democratic government. They fulfil this role partly by providing an avenue through which members of the community can participate in the parliamentary process. Parliamentary committees are also a mechanism of accountability. John Uhr suggests that their accountability role is their 'core business'. According to him the committee process, and the public hearings which are often a part of this process, have the task of 'quality assurance':

testing that the processes of government policy and decision-making measure up, in the sense of qualifying as genuinely responsible and appropriate to the best interests of the community.(43)

In other words, public inquiries are an important means by which the public can play a part in the process of policy development and/or review. The implication is that public policy outcomes improve when community and expert opinions are canvassed.

In recent years measures have been introduced that aim to allow for and encourage greater community participation in committee inquiries. These measures include:

  • advertising an upcoming inquiry over the Internet
  • greater use of informal means of gathering information, such as seminars, workshops and on-site visits, and
  • the use of information technologies, such as tele and video-conferencing, to enable evidence to be taken from remote locations.

Despite these measures, however, this paper has shown that barriers remain for fuller and more equitable participation in the committee system. In particular, the following barriers to community participation were identified:

  • formal community participation in the committee process occurs, on the whole, when most committee members have arrived at a position on the matter under inquiry, usually along party lines. Deviation from these positions is usually politically unwise. This means that the majority of the community, which is not influential in determining party policy, cannot be said to have opportunities for meaningful participation in the committee system
  • access to committee hearings. While many committees travel around the country to take evidence, committees have different approaches as to whether to subsidise witnesses to travel from remote locations to the nearest hearing. As a consequence, means for expanding access for relevant sections of the community are applied on an ad hoc basis, creating grounds for claims of inequitable access
  • interpreters and translators for evidence given in languages other than English are also used on an ad hoc basis, which effectively blocks the participation of some community members in committee inquiries, and
  • sections of the community who might be interested in particular inquiries are not being reached by current arrangements for publicising inquiries.

Many of these barriers are due to limited funds and so are, to an extent, understandable. Other barriers, however, are due to a lack of a common approach amongst different committees. To overcome this, procedures could be agreed upon to address issues such as, for example, whether relevant witnesses from remote locations will have their costs covered to attend hearings, and whether interpreters are arranged as a matter of course and translators provided for Hansard.

Another easily-overcome barrier to greater community participation in parliamentary committees is to use innovative, not necessarily expensive, ways to publicise inquiries. Some ideas have been canvassed in this Paper, including increasing the use of the Internet and altering the design of newspaper advertisements, depending on the nature of the inquiry, to attract readers whose attention might not ordinarily be drawn to advertisements for committee hearings.

A more difficult problem to overcome is that arising at public hearings when committee members, or their parties, have already developed a position on the matter under inquiry. As was discussed in this Paper, political parties generally come to a position on politically controversial matters before their members go to committee. For the public to have the opportunity for meaningful participation in the committee process, in the sense that their concerns, views and arguments are listened to if not acted upon, community consultation needs to occur before committee inquiries are held, and before the parties establish binding positions on a matter.

There is the potential for this to occur through mechanisms already set up to conduct seminars, workshops, site inspections and public meetings. In addition, as noted in the paper, the Standing Orders for the House of Representatives were amended in 1998 to recognise as appropriate less formal processes for gathering information. It is doubtful, however, that these changes to the Standing Orders will have a significant impact in terms of increasing community participation unless an explicit commitment is also made by the Parliament to obtain community views before party positions are decided. Further, the Senate's Standing Orders contain no similar section regarding recognition for less formal means of gathering information so Senate committees are under no obligation to use or expand such alternative methods.

As the examples in this paper have demonstrated, the parliamentary committee system has proved itself to be amenable to reform, and in ways that increase the opportunities for public participation. It has also been shown that the committee system can be reformed further, not only to make participation by the public easier and more attractive, but also to expand the pool of people and groups that make submissions and appear before committees

.

Appendix 1: Standing Committee on Procedure

Review of the House of Representatives Committee System

Summary and Recommendations

The present committee system of the House of Representatives has now been in operation for over a decade. In the 38th Parliament, Members of the House of Representatives can serve on nine general purpose standing committees, eleven joint statutory and joint standing committees and eight domestic committees. The existing committees enable scrutiny of all areas of government. The committee's review indicates that the current system has served the House well. However, with the passage of time and experience generally, together with the evolving political dynamics, the committee system, even though generally acknowledged as a good one, can be even better with some rationalisation and modification.

The committee finds that even though the House has a system of broad based committees, single or narrow issue committees remain. The committee accepts that a case can be made for the existence of these committees on the grounds that they address issues of special importance or address issues that require an expertise which might not exist in the general purpose standing committees. However, all the matters covered by these single issue committees can adequately be accommodated within the scope of the general purpose standing committees and the broader interest joint committees.

The committee accepts the views of those who argued for a reduction in the number of committees, particularly joint committees. It is hard to justify the re-establishment of the Joint Standing Committees on Electoral Matters, Migration and the National Capital and External Territories. In addition, the committee questions the success of the statutory committees relating to corporations and securities matters, the National Crime Authority, native title matters, or the Australian Security Intelligence Organization-the 'watchdog' committees. The committee does not support their re-appointment in the 39th Parliament.

The expansion of the committee system has placed increased demands on Members' time. Many Members find they are unable to allocate the time to participate in all the activities of a particular inquiry. Shadow ministers are required to fill committee positions and the demands of their shadow responsibilities have been such that only limited time can be devoted to committee duties. It is not unusual for only three or so members out of a membership of fourteen to attend public hearings.

The committee believes that the number of positions on general purpose standing committees should be reduced to ten and that the membership of the Procedure Committee should be reduced to seven.

The committee received a number of submissions relating to the adequacy of staff and financial resources provided to committees. The committee considers the question of resources to be outside its terms of reference but notes that if the number of committees were reduced, additional resources would be available to the remaining committees.

All general purpose standing committees traditionally have conducted general inquiries into subject matter referred to them by the Minister. The Minister's referral is usually at the request of the committee. The fact that annual reports stand referred also provides a vehicle for these general inquiries. This, in effect, allows the committee to undertake any inquiry it chooses without the need for referral by a Minister. There appears to be little justification to deny committees the right to initiate their own inquiries.

As with annual reports, the committee considers that reports of the Auditor-General and petitions should stand referred to committees for any inquiry they may wish to make.

Since 1994 (to the end of the 1998 Autumn sittings), only ten bills have been referred to the House general purpose standing committees and 18 to joint statutory committees. If related bills referred to the committees as a package are considered as a single reference, the numbers are even less encouraging. The committee is disappointed that more bills have not been referred to committees. The committee however, does not support the automatic referral of bills at the second reading stage. Rather, it encourages the Government to consider referring a higher proportion of its legislation to House of Representatives standing committees.

As a matter of principle, the committee considers that bills should only be referred to joint committees in exceptional circumstances and that Senators should not be involved in what is, in effect, House business. If necessary, the House may refer a bill specifically to a committee consisting of House members of a joint committee, rather than to the joint committee as a whole.

There is almost universal criticism of the small amount of time allocated to debating reports. The time taken for discussing committee matters in the Chamber comprised only two per cent of Chamber time. Committee matters were discussed in the Main Committee for only 12 per cent of Main Committee time in 1997. This is despite the perception by many Members that the Main Committee provides a significant amount of its time for the discussion of committee matters.

It is also frustrating and disappointing that governments do not respond to reports in a proper and timely manner. Often the delays in responding to committees may relate to the nature of the recommendations rather than a lack of commitment by the Government. However as a minimum requirement, the Government should provide an interim response within three months.

A greater priority should be given to debating committee reports. More flexibility should be given to the Selection Committee to program statements on the tabling of reports. In addition, time should be allocated for debate in the Main Committee that same week. The committee also believes that the process of presenting government responses to committee reports should be formalised in the standing orders and that time be allocated for debate on the response.

There are varying means through which Members of the House are appointed to serve on committees. For those internal committees for which there is no nomination process stipulated in the standing orders, the practice has been that the House appoints Members by resolution. For some other committees the standing orders include a nomination process and Members are deemed to be officially appointed on receipt by the Speaker of appropriate letters of nomination, with the House being advised subsequently by the Speaker of the nominations. Statutory committee membership is effected by resolution of the House. The committee believes that the standing orders be amended to provide for appointment by resolution of the House in all cases.

Some submissions and some committee chairs are critical of Members who do not regularly attend meetings. The committee notes these views but does not support amendments to the standing orders to discourage committee membership of shadow ministers, restrict Members to a specific number of committees or require the resignation of Members who do not attend regularly. The committee believes that more informal processes would achieve the desired results. The proposed reduction in the number of members on each committee (and the reduction in the number of committees) should relieve the pressure on the time of members. It believes that Members would have extreme difficulty in effectively serving on more than three committees. The committee considers, however, that the number of committees on which each Member is allowed serve is a matter for each party to decide.

Joint standing and select committees are established by resolution agreed to by both Houses. The standing orders are largely silent on the procedures to be followed by joint committees. It has become the established practice for such committees to follow Senate select committee procedures when such procedures differ from those of the House. As joint committees are creatures of both Houses the committee considers that it is important that the two Houses agree to arrangements, such as quorums, for the operation of joint committees which meet the needs of both Houses and the committees themselves.

Increasingly, committees have adopted less formal and more flexible approaches to the gathering of information and providing public input to committee activities. These approaches were developing well before the establishment of the current committee system. These processes can take the form of informal discussions, public meetings, seminars or workshops. There has been some doubt in the past as to whether these informal proceedings attract parliamentary privilege. The experience of a decade of operations of the House general purpose standing committees indicates that to a large extent the question of privilege does not arise. However, the Parliamentary Privileges Act provides that:

... 'proceedings in Parliament' means all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of the House or of a committee ... (emphasis added).

The committee believes that, with the recognition of informal committee proceedings in the standing orders of the House, it would be difficult to argue that parliamentary privilege did not apply to any proceedings properly conducted by a parliamentary committee. The committee considers that committees should freely be able to use in reports material gathered by informal processes, provided that the type of process used is acknowledged and the person providing the information is aware that it may be used in this way. The committee also believes that the standing orders should be amended to recognise the less formal procedures, which have become an accepted part of modern committees' operations.

The House has authorised the use of electronic communication devices to conduct committee hearings. In addition, documentary evidence can be received by electronic means, ie electronic mail, facsimile, telex, computer disc and video. The committee strongly supports the formal recognition of the use of modern technology as part of the inquiry process.

It is clear that guidelines for dealing with witnesses need to be adopted as a matter of some priority, not only to ensure that witnesses are treated in a suitably respectful manner when they appear before a committee, but also to ensure that that they are in a position to provide the committee with the required information. Committees of the House use the procedures laid down in the Procedure Committee's 1989 report on procedures for dealing with witnesses as current reference points and non-binding guidelines. However, these procedures have no formal status until adopted by the House in a resolution of continuing effect. The committee supports the recommendations of its predecessor and recommends their adoption by the House with some minor modifications.

The confidentiality of evidence taken by committees is provided for in standing orders, resolutions of appointment and, for committees established by statute, enabling legislation. The Parliamentary Privileges Act 1987 makes it an offence for a person to disclose or publish a document or evidence taken in camera without the authority of the House or a committee.

The Procedure Committee reviewed the question of disclosure of in camera evidence in 1991 and concluded that a rigorous mechanism should be put in place to ensure that in camera evidence could only be disclosed in the most extraordinary circumstances. That committee recommended severe penalties for Members who disclosed in camera evidence, including exclusion from committees and suspension from the House. The committee agrees with the recommendations of its 1991 predecessor, with the exception of penalties. The committee considers that the House should decide penalties for unauthorised disclosure on a case by case basis following investigation and recommendation by the Privileges Committee.

The standing orders, as presently constructed, have application to committees in several distinct and seemingly unrelated chapters. The standing orders also contain provisions that no longer apply and some of the language is dated and unclear.

The committee has proposed changes to the standing orders which:

  • implement the recommendations contained in this report
  • restructure the standing orders relating to committees into a more logical format
  • make the powers and procedures more consistent across all committees of the House-with a few minor exceptions, all committees, including the domestic committees are given the same powers; and
  • update archaic language and remove references to obsolete practices.

Where the recommendations propose amendments to the standing orders, the proposed standing orders are set out in appendix 4 of this report.

The committee recommends that:

  • the total number of committees on which Members of the House serve be reduced the reduction in the number of committees be achieved by not reappointing the following committees in the 39th Parliament:
  • the Joint Standing Committees on Electoral Matters, Migration and the National Capital and External Territories. (recommendation 1)
  • the following committees not be reappointed in the 39th Parliament:
  • the Joint Parliamentary Committees on the Australian Security Intelligence Organization, Corporations and Securities, the National Crime Authority and Native Title and the Aboriginal and Torres Strait Islander Land Fund. (recommendation 2)
  • the standing orders be amended to provide:
  • that general purpose standing committees consist of ten Members, six government and four non-government Members. (recommendation 3)
  • for the appointment of up to two additional Members for a particular inquiry. (recommendation 4)
  • the membership of the Procedure Committee be reduced to seven.(recommendation 5)
  • standing orders be amended to enable committees to determine their own references. (recommendation 6)
  • standing orders be amended to provide for reports of the Auditor-General to stand referred to general purpose standing committees for any inquiry they wish to make. Each committee shall notify the Joint Committee of Public Accounts and Audit in writing when it intends to examine a report. (recommendation 7)
  • the Joint Committee of Public Accounts and Audit develop procedures to ensure that the views of general purpose standing committees are sought prior to the determination of Parliament's audit priorities. (recommendation 8)
  • as a general rule, bills should only be referred to House committees or, if necessary, the House may refer a bill specifically to a committee consisting of House members of a joint committee, rather than to the joint committee as a whole. (recommendation 9)
  • standing orders be amended to provide for petitions to stand referred to general purpose standing committees for any inquiry the committee may wish to make. (recommendation 10)
  • standing orders be amended to enable the Selection Committee to determine the balance between committee and delegation business and private Members' business within an overall allocation of time each Monday. (recommendation 11)
  • the order of business and the times of sitting be reviewed to enable debate on committee reports, in the Main Committee, to commence during the same week as tabling. (recommendation 12)
  • the standing orders be amended to:
  • require the Government to respond to committee reports within three months of tabling. (recommendation 13)
  • enable a Member to request the Speaker to write to the Minister if, after three months, a response has not been made. (recommendation 14)
  • require the Speaker to table in the House, at six monthly intervals, a schedule of government responses to the reports of House of Representatives and joint committees, and reports presented to which responses are outstanding. (recommendation 15)
  • the standing orders be amended to provide for:
  • a specified time (e.g. immediately prior to the presentation of committee and delegation reports on Mondays) for the presentation of government responses to committee reports. (recommendation 16)
  • automatic placement on the Notice Paper of government responses to committee reports when presented. (recommendation 17)
  • the order of business and times of sitting be reviewed to enable government responses to committee reports to be debated, either in the House or the Main Committee. (recommendation 18)
  • the standing orders governing the appointment of members to serve on committees be amended to provide for appointment by resolution of the House in all cases. (recommendation 19)
  • the Speaker and the President of the Senate confer on the development of suitable joint standing orders concerning the operation of joint committees which should then be agreed to by both Houses. (recommendation 20)
  • the standing orders be amended to recognise as appropriate inquiry procedure, the less formal processes used by committees in the gathering of information. (recommendation 21)
  • the existing procedures relating to the use of electronic communication devices by committees be reviewed by the Standing Committee on Procedure prior to the end of the 39th Parliament with a view to their incorporation in the standing orders. (recommendation 22)
  • the standing orders be amended to recognise, as evidence, documents received by committees by electronic means. (recommendation 23)
  • the House agree to a resolution providing procedures for dealing with witnesses in the terms set out in appendix 2 to this report. (recommendation 24)
  • the House adopt the 1991 recommendations of the Standing Committee on Procedure relating to the disclosure of in camera evidence, except for that recommendation relating to penalties. (recommendation 25)
  • Penalties for unauthorised disclosure be decided by the House on a case by case basis following investigation and report by the Privileges Committee. The terms of the proposed resolution are set out in appendix 3 to this report. (recommendation 26)
  • The standing orders be amended as set out in appendix 4 of this report to implement the recommendations and make other related changes. (recommendation 27)

Appendix 2: Senate Committees(44)

Select Committees

Select committees are appointed to inquire into specific matters and cease to exist when they have delivered their final report on these matters.(45) The 1994 report by the Procedure Committee expressed the hope that the development of the legislative and general purpose standing committees would reduce the need for select committees, perhaps with the Senate limiting itself to two select committees.(46) This hope has not been fulfilled. In 1994, before the Senate agreed to adopt the Procedure Committee's report, there were five select committees in operation. A month after the adoption of the new standing orders, a new select committee was created. The following year, in 1995, nine select committees were formed and in 1996 they numbered four.(47)

Legislation Committees

Legislation committees inquire into matters referred to them by the Senate, and in 1989 they were given the task of scrutinising annual reports of government departments and agencies. After the 1994 changes, they also inquire into bills, estimates, annual reports and performance of government agencies.

Reference Committees

References committees inquire into and report upon matters referred to them by the Senate and can initiate their own inquiries. For example, the Rural and Regional Affairs and Transport References Committee might look into Landcare policies, the rail industry, or commercial utilisation of indigenous wildlife. These inquiries can be broad-ranging and can last for four months or longer. When a government-introduced Bill is referred to a reference committee, rather than a legislation committee, controversy can arise. This is because the government does not want to lose control of the legislative agenda, and a references committee inquiry not only often takes more time than a legislation committee inquiry, but it can inquire into substantive (not just technical) aspects of the Bill and can therefore make broad-ranging recommendations.

Legislative Scrutiny Committees

Regulations and Ordinances Committee

This committee is the oldest standing committee, apart from the domestic committees. It has a technical focus and is required to scrutinise each piece of legislation, as well as delegated legislation (those acts and laws not passed by Parliament, such as those made by statutory bodies), to ensure:

  • that it is in accordance with the statute
  • that it does not trespass unduly on personal rights and liberties
  • that it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal, and
  • that it does not contain matter more appropriate for parliamentary enactment.(48)

Scrutiny of Bills Committee

The Scrutiny of Bills Committee is established at the beginning of each parliament to report on bills, ensuring that they do not:

  • trespass unduly on personal rights and liberties
  • make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers
  • make rights, liberties or obligations unduly dependent upon non-reviewable decisions
  • inappropriately delegate legislative powers; or
  • insufficiently subject the exercise of legislative power to parliamentary scrutiny.(49)

When a bill is introduced into Parliament, the committee's legal advisor examines each bill and provides a written report to the committee. The report advises whether or not they transgress any of the principles set out above. The committee then drafts its Alert Digest, a document which deals with all bills introduced in the preceding sitting week, and which sets out the committee's comments on each bill. The minister responsible for introducing the bill is invited to give a response to the committee's comments, and the response may be incorporated in the committee's final report. The committee is not, however, responsible for reaching conclusions as to whether any offending principles should be amended; this task is left to the Senate.

Standing Domestic Committees

These deal with matters internal to the operation of parliament, including publications, appropriations and staffing, procedure, library services and the provision of other facilities in Parliament House. There are eight such committees. They are:

Procedure Committee

This committee inquires into matters that relate to the procedures of the Senate, referred to by the Senate or the President of the Senate. It does not formally gather evidence but it can invite submissions from Senators. Its function is to determine whether the rules of procedure serve the best interests of the Senate and its members, and whether any amendments are desirable.

Privileges Committee

This committee inquires into matters of privilege referred to it by the Senate. It has the power to send for witnesses and for documents, and to travel to conduct its inquiries. The Privileges Committee also deals with matters arising from other committees, for example possible unauthorised disclosure of evidence or draft reports, possible misleading evidence given to a committee, or possible interference with, or adverse treatment of, witnesses as a result of their having given evidence.(50)

Appropriations and Staffing Committee

This committee inquires into:

  • proposals for the annual estimates and the additional estimates for the Senate
  • proposals to vary the staff structure of the Senate, and staffing and recruitment policies, and
  • other matters as are referred to it by the Senate.(51)

It is responsible for determining amounts for inclusion in the parliamentary appropriations bills for annual and additional appropriations. It also reports to the Senate on its determinations before the Senate considers the relevant appropriation bill. The committee is responsible for making recommendations to the President and reporting to the Senate on any matter.

Library Committee

This committee considers the provision of library services to Senators (and Members, when it sits as a joint committee with a similar committee of the House of Representatives). It does not conduct inquiries or produce reports; its main function is to provide a forum in which can be raised matters of relevance to the operations and administration of the Parliamentary Library. Its advice is not binding for the presiding officers who have responsibility for the Library.

House Committee

The House Committee usually sits as a joint committee with the House of Representatives. It deals with matters relating to the provision of services in Parliament House for Senators (and Members).

Publications Committee

Also often sitting as a joint committee, this committee makes recommendations to the Senate on the printing of documents presented to the Senate and which have not already been printed. As a joint committee, it can conduct inquiries into the printing, publication and distribution of parliamentary and government publications.

Senators' Interests Committee

This committee was established in 1994 as part of a commitment to accountability given by the government in the wake of the forced resignation of the Minister for Environment, Sport and Territories over the administration of the Community, Cultural, Recreation and Sporting Facilities Program. The Committee inquires into and reports upon arrangements made for the compilation and accessibility of a register of Senators' Interests. It also considers submissions made in relation to the registering or declaring of interests, including those made by Senators.

Selection of Bills Committee

The task of this committee is to make recommendations to the Senate as to which bills ought to be referred to committees. It considers bills introduced into the Senate or received from the House of Representatives and reports to the Senate on whether any bills should be referred to legislative and general purpose standing or select committees.

House of Representatives Committees

Domestic Committees

Aspects of the House of Representatives Committee structure mirror that of the Senate's. For example its internal standing committees number seven and are as follows:

  • Committee of Privileges
  • Library Committee
  • House Committee
  • Procedure Committee
  • Selection Committee
  • Publications Committee, and
  • Committee of Members' Interests

General Purpose Standing Committees

In 1987 the House adopted a comprehensive committee system by establishing eight general purpose standing committees. The 38th parliament appointed nine general purpose standing committees. They are:

  • Standing Committee on Aboriginal and Torres Strait Islander Affairs
  • Standing Committee on Communications, Transport and Microeconomic Reform
  • Standing Committee on Employment, Education and Training
  • Standing Committee on Environment, Recreation and the Arts
  • Standing Committee on Family and Community Affairs
  • Standing Committee on Financial Institutions and Public Administration
  • Standing Committee on Industry, Science and Technology
  • Standing Committee on Legal and Constitutional Affairs, and
  • Standing Committee on Primary Industries, resources and Rural and Regional Affairs.

Joint Committees

Joint committees consist of members of both houses and are appointed by both houses (although they may be administered by either the Department of the Senate or the Department of the House of Representatives). They inquire into subjects that are considered to be of relevance to both houses of parliament and they can be statutory, select or standing committees.

In May 1999, the Joint Standing Committees numbered five and were responsible for:

  • electoral Matters
  • Foreign Affairs, Defence and Trade
  • migration
  • National Capital and External Territories
  • treaties

Statutory committees are those established by statute and currently all of them are joint committees. Provisions for and membership of statutory committees are contained in statute. Both houses must determine the powers and proceedings of the committee. Currently, seven joint statutory committees exist and they focus on the following areas:

  • Australian Security Intelligence Organisation
  • Broadcasting and Parliamentary Proceedings
  • Corporations and Securities
  • National Crime Authority
  • Native Title and Land Fund
  • Public Accounts
  • Public Works

Endnotes

  1. Commonwealth of Australia Constitution Act, s.49.

  2. House of Representatives Practice, L. M. Barlin, 3rd edition, AGPS, Canberra, 1997, p. 583.

  3. Harry Evans, 'Parliamentary committees and the public interest', Legislative Studies, vol. 8, no. 1, 1993, p. 18.

  4. For an overview of this development see Odgers' Australian Senate Practice, 8th edition, J. R. Odgers, Harry Evans, Australia. Dept. of the Senate, AGPS for the Dept. of the Senate, Canberra, 1997, pp. 476-487.

  5. Rosemary Laing, 'Overhaul of Australian Senate's committee system', Table, vol. 63, 1995, p. 12. See also Harry Evans, 'Restructuring the Senate's committee system', Canberra Bulletin of Public Administration, no. 78, August, 1995, p. 26.

  6. Senate Committees, Senate Brief No. 4, Australia, Dept. of the Senate Research Section, Canberra, 1997, p. 2.

  7. Malcolm Aldons, 'The growth of parliamentary committees of the House of Representatives and Joint Committees', Legislative Studies, vol. 6, no. 1, 1991, pp. 6-8.

  8. Ten Years On: a review of the House of Representatives Committee system, Australia. Parliament. House of Representatives. Standing Committee on Procedure, The Committee, Canberra, 1998, p. 4.

  9. The Hon. Peter Reith MP, House of Representatives, See Debates, 3 December 1998.

  10. Malcolm Shaw, 'Parliamentary committees: a global perspective', Journal of Legislative Studies, vol. 4, no. 1, 1998, p. 230.

  11. Kaare Strom, 'Parliamentary committees in European democracies', Journal of Legislative Studies, vol. 4, no. 1, 1998, pp. 49-51. (Tables available on request.)

  12. Odgers' Australian Senate Practice, op. cit., p. 403.

  13. This timeframe does not apply to reports by the Joint Committee of Public Accounts or the Parliamentary Standing Committee on Public Works. Also, government responses are not made to reports by 'internal' committees such as the House Committee, unless the reports result from inquiries. See House of Representatives Practice, op. cit., p. 614.

  14. Ten Years On: A Review of the House of Representatives Committee System, op. cit., May 1998, pp. 23-4.

  15. Committee Bulletin, vol. 4, no. 12, 1993, p. 6.

  16. Kelly Paxman, 'Referral of bills to Senate committees: an evaluation', Papers on Parliament, no. 31, The Dept. of the Senate, Canberra, 1998, p. 82.

  17. See, for example: the figures and comments reported in the study conducted for the Civics Expert Group report Whereas the People ... Civics and Citizenship Education, 1994; Murray Goot, 'Civics, survey research and the republic', Australian Quarterly, vol. 67, no. 3, 1995, pp. 25-39; Quentin Beresford and Harry Phillips, 'Spectators in Australian politics? Young voters' interest in politics and political issues', Youth Studies Australia, vol. 16, no. 4, 1997, pp. 11-16.

  18. For detail on these see Odgers' Australian Senate Practice, op. cit., pp. 392-397 and House of Representatives Practice, op. cit., pp. 587-99.

  19. Odgers' Australian Senate Practice, op. cit., pp. 387-88. The Conference Proceedings is titled Public Service Reform, 1 September, 1994.

  20. Gabrielle Rowen, 'An assessment of witnesses' perceptions of the Senate Committee public hearing process', prepared for the Department of the Senate, October 1996, p. 22.

  21. ibid.

  22. House of Representatives Practice, op. cit., p. 601.

  23. Odgers' Australian Senate Practice, op. cit., pp. 51-2. This also summarises the debate about limitations on committee power to summon members.

  24. ibid., p. 408.

  25. ibid., pp. 418-19.

  26. ibid., p. 420.

  27. Ten Years On, op. cit., p. 31.

  28. ibid., op. cit., p. 31.

  29. ibid., pp. 28-29.

  30. ibid., pp. 29-30.

  31. John Uhr, Parliamentary Committees: What are appropriate performance standards?, Canberra, Constitutional Centenary Foundation, 1993, pp. 6-7.

  32. Ten Years On, op. cit., p. 39.

  33. Kelly Paxman, 'Referral of bills to Senate committees: an evaluation', op. cit., p. 83.

  34. Committee Bulletin, vol. 8, no. 8, 1997, p. 3.

  35. Roxanne Le Guen, Committee Secretary, Senate Standing Committee on the Environment, Recreation, Communication and the Arts, personal communication, 19 April 1999.

  36. The Reeves inquiry was commissioned by the Coalition Government in October 1997 to look into the operation of the Land Rights Act (NT) 1976.

  37. The Hansard proof can be found at: http://www.aph.gov.au/hansard/reps/commttee/r2225.pdf (website visited 4-5-99)

  38. Kelly Paxman, 'Referral of bills to Senate committees: an evaluation', op. cit., p. 85.

  39. Senate Community Affairs Legislation Committee, Report on Child Care Payments Bill 1997, Child Care Payments (Consequential Amendments and Transitional Provisions) Bill 1997, October 1997, pp. 19 and 22.

  40. Committee Bulletin, vol. 4, no. 12, 1993, p. 6; and Kelly Paxman, 'Referral of bills to Senate committees: an evaluation', op. cit. p. 89.

  41. Gabrielle Rowen, op. cit.

  42. 'Committee system cuts,' Committee Bulletin, vol. 7, no. 7, July 1996, pp. 1, 5 and 7.

  43. Uhr, 'Parliamentary committees: what are appropriate performance standards?', p. 4.

  44. The information in this section is taken from Odgers' Australian Senate Practice, op. cit., House of Representatives Practice, op. cit., and Senate Standing Orders.

  45. Odgers' Australian Senate Practice, op. cit., p. 340.

  46. The Senate Standing Committee on Procedure, Senate Committee System, June 1994, P.P. 146/94, p. 5.

  47. Odgers' Australian Senate Practice, op. cit., p. 357.

  48. Odgers' Australian Senate Practice, op. cit., p. 350.

  49. The Senate, Standing Orders and Other Orders of the Senate, no. 24.

  50. Odgers' Australian Senate Practice, op. cit., p. 344.

  51. The Senate, Standing Orders and Other Orders of the Senate, no. 19.

 
 

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