1. Why refer matters to committees?
The Senate has a wide range of responsibilities to consider proposed laws, to examine government expenditure and administration, and to provide an effective forum for the detailed examination of public policy issues. One of the ways in which the Senate is able to meet these responsibilities and ensure that it is fully informed when making decisions is by delegating a range of tasks to its committees.
Committees provide convenient vehicles for conducting inquiries and examining issues because of their relatively small size, their ability to meet in a variety of places and the flexibility of their proceedings. They are able to receive written submissions and hear evidence on specified matters, and to examine issues in closer detail than is possible on the floor of the Senate. Because numerous committee inquiries can be undertaken at the same time, many different issues can be examined and quickly reported back to the Senate.
2. What are the powers and functions of committees?
Committees have no powers of their own. The Senate, through its Standing Orders and through resolutions, determines which of its powers will be delegated to committees and for what purpose. Each committee is established by orders of the Senate which define those delegated powers and functions and prescribe it size, composition and operations. Similarly, the terms of reference for each committee inquiry originate as orders of the Senate.
It is within the power of the Senate to establish a new committee to inquire into any matter within the competence of the Senate. As a practical matter, however, most inquiries are undertaken by a well‑established committee system. Within the committee system, different types of committees perform different functions. A full description of the structure and role of the Senate committee system can be found in Senate Brief No. 4—Senate Committees.
3. How are matters referred to committees?
As noted above, the functions of committees and their terms of reference originate as orders of the Senate.
From a practical viewpoint, it is often unnecessary for individual senators to take any action to refer matters to committees because the matters are referred automatically under provisions in the Standing Orders. Matters that are automatically referred to committees without the need for further action by the Senate are often called standing references. Standing references are generally triggered by events described in the relevant standing orders, for instance, the presentation of a document or the introduction of a piece of legislation.
References relating to other routine matters are often the subject of established practices by which matters are routinely referred, so that it is generally unnecessary for individual senators to take any action in the Senate to ensure their reference. Examples of this include the reference of estimates to legislative and general purpose standing committees and the reference of bills to committees through the selection of bills process.
For other, non-routine matters, the reference must be initiated by a senator taking advantage of an appropriate opportunity in the Senate chamber.
In some areas a combination of these processes may apply. The approach taken varies with the subject matter of the proposed reference.
4. Reference of particular matters
To establish an inquiry into a matter that is not automatically referred to a committee – for instance, a matter of public policy – the Senate must agree to an order giving effect to that reference. The usual process is for a motion to be passed by the Senate after a senator has given notice of the proposed reference. (see Brief Guide No. 8—Notices of motion).
Where the committee in question is a legislation committee or a references committee established under standing order 25 a senator may give notice of a proposed reference at any time during a sitting day, either by seeking the call when no other business is before the chair or by delivering the notice to the Clerk at the Table. A further advantage is that such a notice is classified as "business of the Senate" under standing order 58. This gives debate on the motion priority in the routine of business (see Brief Guide No. 4—Categories of Business).
As with other substantive motions, if no senator objects a motion to refer a matter to a committee may be moved by leave without the requirement for notice. In urgent cases a senator may also seek to escape the requirement for giving notice, or may seek to give priority to debate on the proposed reference, by moving to suspend standing orders. These processes are examined in Brief Guide No. 5—Suspension of standing orders.
Usually the proposal is to refer matters to an existing committee. Occasionally the Senate will establish a new committee – known as a select committee – to undertake a specific inquiry. In this case the resolution proposing the reference must also spell out the powers, functions and composition of the new committee. The Clerk Assistant (Procedure) can assist non-government senators in drawing up such proposals.
The most common method for the reference of a bill to a committee is through the adoption by the Senate of the recommendations of the Selection of Bills Committee. This committee, established under standing order 24A, has a standing reference to consider each bill introduced or proposed to be introduced in the Senate to determine whether it should be referred to a committee for inquiry and report.
The Selection of Bills Committee, comprising the whips of the major and any minor parties and four other senators, meets weekly when the Senate is sitting. Senators submit proposals to the committee for particular bills to be referred to the relevant standing or select committee. The Selection of Bills Committee then makes recommendations to the Senate about bills to be referred, the committees to which (and the stage at which) they are to be referred, and the reporting dates. Adoption of the report by the Senate has the effect of referring the bills as recommended. The motion for the adoption of the report may be amended to vary the details of the recommendations or to add or delete bills.
Bills may also be referred to committees by motion after notice, as described above. Opportunities also arise during the consideration of legislation, by way of an amendment to the motion for one of the stages of consideration of a bill – typically the question for the second reading (standing order 114(3)), or the motion for the adoption of the report from the committee of the whole. In these cases the amendment may propose the reference of the bill, or of certain provisions of the bill, or it may propose the reference of related policy matters rather than the bill itself.
A further opportunity to propose the reference of a bill to a committee arises after the second reading of a bill. Standing order 115(2) provides that a motion to refer the bill to a committee may be moved at that stage without the requirement for notice. The legislative process is fully described in Brief Guide No. 16—Consideration of legislation.
'Time critical' bills
Since 2009, the Senate has adopted measures to ensure that 'time critical' bills introduced into the House of Representatives during the budget estimates fortnight may be referred to committees before the Senate returns for the June sittings. A motion is moved referring bills introduced during that period with provisions commencing on or before 1 July to the relevant committee. A committee may decline to examine a bill if, by unanimous decision, it considers that there are no substantive matters requiring consideration.
The scrutiny of legislation by the Senate is also assisted by standing references to its three legislative scrutiny committees.
The Scrutiny of Bills Committee established under standing order 24 examines each bill to determine whether there is a risk that personal liberties or civil rights may be infringed. It reports its concerns to the Senate through a series of reports and alert digests.
The Regulations and Ordinances Committee established under standing order 23 scrutinises all instruments of delegated legislation to ensure that the government’s power to make such delegated legislation is not in any way misused. More information on delegated legislation and on the work of the committee can be found in Brief Guide No. 19—Disallowance or in chapter 15 of Odgers’ Australian Senate Practice, 13th edition.
The Parliamentary Joint Committee on Human Rights was established in March 2012 in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The committee's main function is to examine bills and legislative instruments for compatibility with international human rights standards.
Government agencies, annual reports and estimates
The eight legislation committees established under standing order 25 each have a role in the scrutiny of government departments and agencies. The allocation of portfolios to committees for this purpose is determined by resolution of the Senate, usually at the beginning of each Parliament. There are three aspects to this scrutiny role. Two of them – the examination of annual reports of departments and agencies and the scrutiny of their performance – exist as standing references in accordance with standing order 25(2)(a) and standing order 25(20).
The third aspect of this scrutiny – the consideration of the estimates of departments and agencies – is provided for in standing order 26. The committees’ consideration of estimates is triggered by a motion that is routinely proposed by a minister or parliamentary secretary after the tabling of relevant budget documents, accompanying the introduction of the appropriation bills in the House of Representatives. Further information on the estimates process can be found in Senate Brief No. 5—Consideration of Estimates by the Senate’s Legislation Committees.
Internal operations of the Senate
Matters relating to Senate procedure may be referred to the Procedure Committee by ordinary resolution of the Senate, but are more typically referred by the President (standing order 17(3)).
A number of preconditions apply to the raising of matters of privilege for reference to the Committee of Privileges. These are described in Brief Guide No. 20—Parliamentary privilege.
A number of domestic committees exist which deal with matters relating to the internal operations of the Senate. The standing orders establishing these committees each contain standing references:
More information on these committees can be found in Senate Brief No. 4—Senate Committees.
For assistance with any of the matters covered by this guide, government senators or their staff should contact the Clerk Assistant (Table), on extension 3020 or email@example.com; and non-government senators or their staff should contact the Clerk Assistant (Procedure), on extension 3380 or firstname.lastname@example.org. Assistance with matters relating to committees is always available from the Clerk Assistant (Committees), on extension 3370 or email@example.com.
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