Procedural Information Bulletin No. 283

For the sitting period 16 to 26 June 2014

Valedictories

The final sitting fortnight of the old Senate saw retiring senators make valedictory speeches and the retiring President make a final statement. Senators also accompanied the President to Government House on 16 June to present the Address-in-Reply to the Governor-General, the successor to the Governor-General who made the speech at last year’s opening of Parliament to which the Address is a reply. The new Senate will be sworn in on 7 July.

Legislation

The first official trigger for a simultaneous dissolution was established on 18 June when the Clean Energy Finance Corporation (Abolition) Bill 2013 [No. 2] was negatived at the second reading for a second time following the required three month interval between the Senate’s first rejection of the bill and its second passage by the House of Representatives. The non-government majority used its numbers to bring the bill on for debate and give it precedence till determined, ensuring a vote before the end of the current Senate. Other bills in the clean energy package were passed again by the House of Representatives after the required interval and will be introduced in the new Senate.

Otherwise, numerous bills were dealt with, including the package of bills to impose additional taxation on higher income earners in a suite of measures described as a temporary budget repair levy, designed to address the budget deficit. Because they increased taxation, most of the bills in the package were categorised as bills imposing taxation and, therefore, bills that the Senate, in accordance with section 53 of the Constitution, was unable to amend.

It is sometimes thought that the Senate may do by way of request what it may not do by amendment. When it comes to taxation, however, the Senate is prohibited from initiating the imposition of a tax. Not even the ability to make requests to bills imposing taxation can overcome this prohibition. Therefore, to signal the policy position of the Australian Greens on the tax, Senator Milne moved a second reading amendment indicating the Greens’ preference that the additional tax be permanent. Because making the tax permanent amounts to an imposition of tax where none was previously payable, a request would have been out of order.

A committee of the whole stage occurs on bills if amendments are circulated or if any senator requests one. Although no committee stage amendments were circulated to the temporary budget repair levy bills, government senators requested a committee stage and used it to question the minister on why the measures had not been taken further.

The Family Assistance Legislation Amendment (Child Care Measures) Bill 2014 passed on 23 June with one of the proposed cost-reduction measures omitted on the initiative of the Opposition. The House of Representatives agreed to the amendment.

The Infrastructure Australia Amendment Bill 2013 was extensively amended by the Opposition, Government and Australian Greens. The amendments were agreed to by the House of Representatives on 26 June.

The Appropriation Bills were passed on 25 June. The package included a further pair of bills for the current financial year, as well as bills for the new financial year. Appropriation Bill (No. 6) 2013-14 was amended in the House of Representatives, apparently to include a schedule of payments to the states that had been inadvertently omitted through a production error. Further bills in the suite of Public Governance, Performance and Accountability reforms were passed as non-controversial bills on 26 June, including a very substantial consequential and transitional provisions bill.

Disallowance

A motion to disallow the Australian Meat and Live-stock Industry (Export of Live-stock to Egypt) Repeal Order was unsuccessful on 19 June, with the Government moving closure on the motion, possibly to ensure that it could be dealt with within the available time.

On 16 June, Senator Wright gave notice of her intention to amend a disallowance notice to reduce its scope. As this is the equivalent of withdrawing part of the notice, the procedures in standing order 78 are used to provide an opportunity for other senators to take it over. In the event, no senator did so and Senator Wright moved the amended motion in respect of certain Bankruptcy regulations and determinations on 23 June. The instruments were disallowed.

Formal motions

From time to time, senators express dissatisfaction with the process for dealing with formal motions and its unsuitability for dealing with matters of any complexity or controversy because formal motions may not be amended or debated. On several occasions during the sitting fortnight, formality was denied for motions seeking to record a particular, contested view of the Senate on complex issues of foreign policy. On two occasions, senators made statements by leave to explain their positions briefly but on a third occasion, an unsuccessful motion to suspend standing orders allowed some airing of both the issues and the general frustration with a process that, for such purposes, was little more than a blunt instrument. Senators urged the Procedure Committee to find a solution to the problem, one which has been reviewed on many occasions.

Changes to standing and other orders

A rush of changes to standing and other orders was agreed to before the end of the Senate term. Temporary orders that have been in place since 2009 in relation to question time were adopted as permanent changes on 24 June, on the motion of the Chair of the Procedure Committee, the Deputy President. Also renewed by the same method was the temporary order for consideration of private senators’ bills which provides for the Senate to sit from 10 am on Mondays. However, the prohibition on divisions before 12.30 pm on Mondays was not renewed, meaning that business will be able to proceed normally on Monday mornings from now on.

On the motion of the Leader of the Opposition in the Senate, Senator Wong, numerous procedural changes and resolutions expressing opinions of the Senate were agreed to on 25 June, after formality was denied and standing orders were successfully suspended. Several of the motions were aimed at strengthening the rights of minorities in the Senate. Some of these changes appear to have sprung from frustrations experienced during the recent Budget estimates hearings with hearings being closed down early and senators prevented from continuing with questions to particular agencies. The procedure used to require spill-over hearings on Fridays has been expanded into an order of continuing effect, and the same mechanism of a request by 3 members of a committee has been used to require additional hearings on other days. Provided there is cooperation in the management of the estimate hearings, reliance on these procedures should not be necessary.

One of the changes was an amendment to standing order 74(5) to enable unanswered estimates questions to be followed up in the chamber after question time once the date set by the relevant committee had passed. The old procedure, requiring a senator to wait for 30 days after that date, was used for the last time on 18 June.

A new continuing order for production of documents requires agencies to supply details of estimates questions on notice that have been answered or otherwise, 10 days before each round of estimates hearings. A consolidated resolution on the accountability of officers, and a resolution rejecting the existence of an application for information under the Freedom of Information Act as a basis for refusing to answer questions, complete the set of new measures.

The Procedure Committee presented a report on 26 June, reporting progress on its long-running inquiry into the routine of business, providing amendments to standing orders requested by the Scrutiny of Bills Committee, and referring to actions to extend or incorporate the temporary orders referred to earlier.

Orders for production of documents

Orders were agreed to in the last sitting period in relation to livestock shipping services (14 May) and homelessness (15 May). In relation to the second order, the responsible minister tabled a response explaining that a lack of data and the complexity of the issue prevented any reliable estimate of the impact of the Budget on homelessness. Moreover, provision of services for the homeless was principally a state matter with the Commonwealth contributing funding, among other things.

In response to the order on livestock shipping services, the responsible minister described the various sensitivities attaching to the documents and the harm that might ensue from full disclosure. Given the volume of documents involved, the minister appeared to indicate that the documents would be reviewed for possible production. In the meantime, several reports and press releases were provided with the response.

An order for production of documents on the East West road link in Victoria, agreed to on 16 June, falls due on 7 July. A motion agreed to on 17 June called for no funding to be released to Victoria for the project until several conditions were fulfilled. Documents relating to the Perth Freight Link, including a cost-benefit analysis, ordered on 25 June, also fall due on 7 July. Another proposed order, for a preliminary report of the Review of the Australian Curriculum, was withdrawn, by leave, before the question was put when the minister indicated it had been released publicly.

Matter of privilege

After the estimates hearings, a matter of privilege was raised by Senators Bernardi and Faulkner. It concerned the use of closed circuit television footage for the purpose of internal disciplinary proceedings conducted by the Department of Parliamentary Services, and the identification of persons providing information to senators’ offices. Senator Bernardi raised the matter in his capacity as chair of the relevant legislation committee.

The President granted precedence to a joint motion which was agreed to on 18 June. Two issues of privilege have been identified for investigation as possible contempts: the possible interference or attempted interference with a senator in the free performance of his duties as a senator, and whether disciplinary action was taken against a person in connection with the provision of information to a senator.

Committees

A large number of reports were presented during the period, including a major report by the Economics References Committee on the Australian Securities and Investment Commission's performance, clearing the way for a new round of referrals. The Select Committee on the Abbott Government’s Commission of Audit presented its final report and was replaced by two select committees, one on cuts to the health budget and one on the Government's budget cuts generally. Several very wide-ranging references committee inquiries were agreed to, including on grain export networks, the ability of Australian law enforcement authorities to eliminate gun-related violence, managed investment schemes, Australia's naval ship building capacity, the structure and financing of parliamentary support services, Landcare, invasive species, violence against women and the rights of the terminally ill.

A further estimates hearing was held by the Community Affairs Legislation Committee on 19 June to receive further information about a tender process relating to discretionary grants programs. The Foreign Affairs Defence and Trade Legislation Committee was ordered by the Senate to reconvene on 26 June to take further evidence from Defence Housing Australia concerning agency performance and a scoping study investigating options for future ownership.

Numerous bills were referred during the period, including the reintroduced package of clean energy bills, the identical predecessors of which have been reported on by the Environment and Communications Legislation Committee. Reporting dates on bills recommended for referral by the Selection of Bills Committee in its 8th report of 2014 were the subject of intense disagreement on 26 June. Different dates were proposed for several bills in a series of amendments moved by the Opposition, Government and Australian Greens before majorities coalesced around particular dates.

Several committees presented reports on time-critical bills, with only one committee reporting that it had determined unanimously that there were no substantive issues requiring examination.

The Appropriations and Staffing Committee presented its 56th Report on 16 June, determining the amount for inclusion in the relevant appropriation bills for the Department of the Senate and noting, with concern, the cumulative effect of years of efficiency dividends and additional efficiency dividends, together with the method of communicating the reductions to the Senate. The committee again indicated that it would pursue a more appropriate means of determining budgets for the Parliament.

The legislation committees presented reports on their examination of Budget estimates. One report included additional comments from Opposition and Australian Greens senators objecting to the management of the hearings of that committee and its early adjournment. The incidents behind these comments may have influenced the development of some of the procedural measures adopted to strengthen the rights of minorities.

Address by Japanese Prime Minister

The President reported a message on 24 June, inviting senators to attend a meeting of the House of Representatives on 8 July to hear an address by the Japanese Prime Minister, the Honourable Shinzo Abe.

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