Preface to the fourteenth edition
This edition of Odgers' Australian Senate Practice, the fourteenth, is the first to be published since the death of Harry Evans who served the Senate from 1969 to 2009, including nearly 22 years as its Clerk. It was he who added the “Odgers'” to “Australian Senate Practice” in memory of James Rowland Odgers, Clerk of the Senate from 1965 to 1979 and the original author of “The Book”. First produced in 1953, it went through five editions in Odgers' lifetime with a sixth edition produced posthumously in 1991 but based on additional material prepared by its original author. The sixth edition was published by the then Royal Australian Institute of Public Administration (ACT Division).
In his foreword to the sixth edition, Alan Cumming Thom, Clerk of the Senate from 1982 to 1988, referred discreetly to the “delays and difficulties” associated with its publication. It is a matter of record that attempts in 1982-3 to have the sixth edition published by the same method as earlier editions was opposed by some senators and not pursued. Once the sixth edition was published externally, however, the future of the work was assured when the then Clerk, Harry Evans, prepared a seventh edition with the concurrence of the Odgers family and indicated that future editions would be prepared by the serving Clerk of the Senate.
The seventh edition was a substantial rewrite of the original work, necessitated by significant developments affecting the Senate over the course of the 1980s and early 1990s. Not least of these was the enactment of the Parliamentary Privileges Act 1987 and codification of Senate practice through the Privilege Resolutions the following year. The first inquiries into a member of the judiciary under section 72 came to an inconclusive end in 1986 and a sixth simultaneous dissolution of the Houses under section 57 of the Constitution occurred in 1987. There were major cases involving the Senate's powers of inquiry, the rights and protection of witnesses and access to information held by the executive government. In addition to new standing orders agreed to in 1989, new procedures were adopted for the regular scrutiny of legislation by committees and the committee system itself underwent a complete restructuring in 1994.
While Odgers' exposition of the role, functions and institutional design of the Senate, and the importance of constitutional safeguards, carried over into the new edition, much of the historical material was omitted except where necessary for an understanding of current circumstances, although cross references were included to the historical material in the sixth edition. There was also a significant degree of restructuring of the content to reflect the contemporary operations of the Senate and its new standing orders. Harry Evans produced five further editions of the work, each one concentrating on an analysis of the way in which the Senate operates as an institution and each one reflecting his strong vision of the importance of the Senate as a safeguard of constitutional, federal government in Australia.
The documentation and analysis of the work and rationale of the Senate undertaken by these two Clerks is a legacy of inestimable value. Therefore, it is only fitting that both men should be recognised in the title and subtitle of the book, and that the epigraphs chosen by each for their respective editions should be joined together in this edition. With Clerks now serving a non-renewable ten year term under the Parliamentary Service Act 1999, it is unlikely that any future Clerk will have as sustained an impact on the institution as these two men. Like the Senate itself, however, this manual of practice and procedure will continue to evolve.
There is much new material in this edition and further restructuring has been undertaken. For example, the major information about the legislative scrutiny committees and the Selection of Bills Committee may now be found in the chapters on legislation and delegated legislation. Chapter 19, Relations with the executive government, has been re-ordered and the analysis of orders for the production of documents rationalised into a more coherent structure rather than a series of anecdotal observations. Frequently circulated material on various public interest immunity grounds has been incorporated into the text. There is also new material on the prorogation of the 44th Parliament in April 2016 as a prelude to the chain of events leading to the seventh simultaneous dissolutions of the Houses under section 57 of the Constitution, as well as new material on the impact of prorogation on committees and on business before the Senate.
The resolution of the impasse leading to the simultaneous dissolutions was relatively straightforward, with the trigger bills subsequently passing without the need for a joint sitting, although only after extensive amendment by the Senate. Leaving aside the amendment of the bills, the 2016 dissolution may therefore be loosely compared with the 1951 dissolution which saw the incumbent government returned and able to secure passage of the disputed legislation. Both elections occurred in the wake of electoral changes expected to improve the prospects for the incumbent government in the Senate, an aim achieved in 1951 with the election of 32 Liberal/Country Party senators in government to 28 Australian Labor Party senators in opposition (in a Senate of 60). Tables in Chapter 1 detailing the outcome of all Senate elections since 1901 in terms of party affiliations show that the government that was returned in 2016 faced a much more complex Senate, with 30 government senators, 26 in opposition and a cross bench of 20 senators representing seven different parties.
In the aftermath of the 2016 election, the Senate referred matters to the High Court sitting as the Court of Disputed Returns relating to the qualification of senators, the first time it had done so since after the previous simultaneous dissolution election in 1987. At the time of publication, proceedings on the two matters were in train.
At an operational level, the Senate's routine of business continued to evolve in response to increasing pressures to transact more business in the same or less time. Procedures relating to routine committee business were streamlined while preserving the rights of senators to have the question put on individual items. Structured opportunities for debating documents and committee reports were enhanced by reducing reliance on ad hoc debates. Questions without notice and answers by ministers became shorter to accommodate a greater diversity of party representation.
There was no consensus about the virtue of third-party assessment of disputed public interest immunity claims but committees continued to be the most significant forum for testing such claims, including through specific inquiries as well as the regular estimates scrutiny of government operations. Committees also continued to operate as the chief forum for legislative scrutiny, whether from a technical perspective through the Scrutiny of Bills Committee, or from a policy perspective through the legislation committees. Linkages between the two streams of scrutiny were formalised by amendments to the standing orders guiding both processes.
The accountability of ministers and officers to committees was reinforced by new resolutions consolidating accountability obligations and prescribing new processes for timely provision of answers to questions taken on notice at estimates hearings. The rights of the minority on legislation committees were bolstered by the implementation of mechanisms to ensure additional estimates hearings could be held at the request of any three committee members without having to seek an order of the Senate.
Efforts also continued to secure greater control for the Parliament over its budget without compromising the necessary independence of the Houses, or the overall financial responsibility of the executive government. At the end of 2016, this remained a work in progress.
This is my second and final tour of duty as editor of this authoritative account of the practices and procedures of the Australian Senate and its place in our constitutional framework. As usual, many Senate officers have contributed to reviewing and updating the work and I am grateful to all of them. I particularly thank Christine Jurjevic for production and editorial support. Responsibility for errors is entirely mine.