For the sitting period 24 November-5 December
1997
BILLS AND "TRIGGERS"
This sitting period was preoccupied with the Native Title
Amendment Bill, and even before the Senate's consideration of the
bill began there was speculation about it providing the government
with a "trigger" for a double dissolution. The bill was considered
at great length and extensively amended. The government rejected
some Senate amendments in the House of Representatives on 6
December and immediately laid the bill aside. It is said that the
government has advice that this treatment of the bill is sufficient
to provide a first occasion under section 57 of the Constitution
for a double dissolution. There is good reason to question this
advice. There is no precedent for such a treatment of a bill
providing a "trigger"; on past occasions of disagreement between
the Houses over amendments the normal parliamentary process has
been followed of the House returning the bill to the Senate with a
request for reconsideration of the amendments disagreed to by the
government, and there has always been at least one such
reconsideration by the Senate before a bill has been abandoned.
There are good grounds for concluding that it is necessary to
follow this process to establish a section 57 occasion, based on
the wording of the section and its purpose of resolving genuine and
ongoing disagreements. By following the presumed advice the
government appears to be running a risk of the Governor-General
declining a request for a double dissolution and of the High Court
finding that legislation passed at the end of a whole section 57
process has not been validly enacted.
The Public Service package of bills (see Bulletin No. 120, p 3)
was treated in the same way, and presumably the government thinks
that this package also provides it with the first stage of a
"trigger".
In relation to other bills, the normal parliamentary processes
were followed. The government disagreed with the Senate's
amendments to the Legislative Instruments Bill, but only after the
Senate had insisted on its amendments on 3 December was the bill
laid aside by the government in the House. This bill therefore
certainly provides the first stage of a "trigger".
With the Superannuation Contributions and Termination Payments
Taxes Legislation Amendment Bill 1997, however, the government
accepted a Senate amendment after the Senate had insisted on it on
1 December. This demonstrates that agreement may eventually be
reached after the normal processes have been followed, and supports
the contention that those processes should be followed for a
section 57 occasion to be established.
In relation to the Social Security Legislation Amendment
(Parenting and Other Measures) Bill 1997, the government accepted
in the first instance the extensive amendments made by the Senate
on 26 November.
The matter of the Victorian government's treatment of the state
Auditor-General found its way into the Senate's proceedings in
relation to the States Grants (General Purposes) Amendment Bill
(No. 2) 1997. The procedure of an amendment to the motion for the
adoption of the report of the committee of the whole was used to
refer to the Public Accounts Committee the question of whether the
Commonwealth may attach conditions to grants to the states relating
to the role of state Auditors-General, "with particular relevance
to recent developments concerning the Victorian
Auditor-General".
In relation to the Social Security and Veterans' Affairs
Legislation Amendment (Family and Other Measures) Bill 1997, the
government also accepted the Senate's amendments, but, the
government drafters having apparently advised that the amendments
should have been requests in accordance with their theories (which
have not been followed by the Senate), the device was adopted of
having the House disagree with the amendments but make the same
amendments itself.
In relation to the Workplace Relations and Other Legislation
Amendment Bill 1997, the government successfully moved to suspend
standing orders to enable new amendments to be moved not consequent
on the amendments previously made to the bill, after the government
had disagreed with the Senate's original amendments. With a series
of new amendments, the bill was then passed.
The revived Productivity Commission Bills (see Bulletin No. 120,
p 2) were considered again on 3 December but not resolved at the
end of the sitting period.
The situation in relation to double dissolution "triggers",
therefore, is that there are three bills which have definitely
provided first occasions under section 57: the Workplace Relations
Amendment Bill 1997, rejected by the Senate at the second reading
on 21 October; the Charter of Budget Honesty Bill, laid aside by
the government on 19 November after the Senate had insisted on its
amendments to which the government had disagreed; and the
Legislative Instruments Bill. There are also the two dubious cases
of the Public Service package and the Native Title Amendment
Bill.
ORDERS FOR PRODUCTION OF DOCUMENTS
The year's sittings have ended with two unusual outright
refusals by the government to produce documents in response to
Senate orders.
In relation to the order for a report on a workplace relations
consultancy (see Bulletin 120, p 1) the government again
refused to provide the document on 25 November, again citing legal
professional privilege as the ground for a claim of public interest
immunity.
A refusal to produce legal advice on the constitutionality of
the Native Title Amendment Bill was made on 26 November immediately
after the Senate had passed an order for the advice. It was claimed
that the advice cast doubt on the constitutionality of the
bill.
DELEGATED LEGISLATION
The Senate disallowed a set of family law regulations on 24
November, not at the instigation of the Regulations and Ordinances
Committee but on policy grounds.
PRIVILEGE
The President determined on 25 November that yet another matter
of alleged unauthorised disclosure of committee documents should
have precedence under standing order 81. This matter related to an
apparent disclosure of a draft report of the Environment,
Recreation, Communication and the Arts References Committee. This
and the matter previously raised (see Bulletin 120, p 2) were
referred to the Privileges Committee on 26 November.
The committee also received a reference on 5 December relating
to a suggestion that the Queensland Criminal Justice Commission
made misleading statements to a Senate select committee. This
matter was initially raised by the Queensland parliamentary
committee which oversees the Criminal Justice Commission. That
committee asked the Senate to investigate the matter because
federal parliamentary privilege prevented an investigation by a
state committee. Correspondence between the President and the
Queensland committee was tabled in August, but no senator had
previously moved to instigate a Senate inquiry.
PROCEDURE COMMITTEE REPORT
The Procedure Committee presented a report on 26 November in
which it recommended against a series of proposed changes to Senate
procedures. The Committee rejected suggestions for:
- estimates hearings to be held in camera in particular
circumstances
- declarations of senators' interests not to be required where
the interests concerned are already on the register
- a special procedure for debate on Ombudsman's reports
- changes to the arrangements for general business on
Thursdays
- changes to the procedure for prayers.
In relation to the Ombudsman's reports, the Committee indicated
that it would look again at this suggestion as part of a review of
the routine of business.
COMMITTEES
The last two weeks of the 1997 sittings saw many committees
presenting reports to conclude matters before the end of the
year.
The following committee reports were presented during the
period:
Date tabled |
Committee |
Title |
24.11 |
Legal and Constitutional Legislation |
Report-Crimes Amendment (Forensic Procedures) Bill
1997 |
25.11 |
Rural and Regional Affairs and Transport
Legislation |
Report-Live-stock Transactions Levy Bill 1997 |
26.11 |
Procedure |
2nd Report of 1997 |
" |
Scrutiny of Bills |
18th Report and Alert Digest No. 17 of 1997 |
" |
Rural and Regional Affairs and Transport
Legislation |
Additional Information-Estimates 1997-98 |
" |
Employment, Education and Training Legislation |
Additional Information-Estimates 1997-98 |
" |
Employment, Education and Training Legislation |
Additional Information-Estimates
1997-98Supplementary |
26.11 |
Environment, Recreation, Communications and the
Arts legislation |
Additional Information-Estimates 1997-98 |
" |
Economics Legislation |
Report—Additional Estimates 1997-98 |
" |
Employment, Education and Training Legislation |
Report—Additional Estimates 1997-98 |
" |
Environment, Recreation, Communications and the
Arts Legislation |
Report—Additional Estimates 1997-98 |
" |
Finance and Public Administration Legislation |
Report—Additional Estimates 1997-98 |
" |
Foreign Affairs, Defence and Trade Legislation |
Report—Additional Estimates 1997-98 |
" |
Legal and Constitutional Legislation |
Report—Additional Estimates 1997-98 |
" |
Rural and Regional Affairs and Transport
Legislation |
Report—Additional Estimates 1997-98 |
27.11 |
Regulations and Ordinances |
End of Sittings Statement-Document |
" |
Regulations and Ordinances |
Conference Paper |
2.12 |
Publications |
Report-Future of the Parliamentary Paper
Series |
" |
Environment, Recreation, Communications and the
Arts Legislation |
Additional Information-Estimates 1997-98 |
" |
Economics Legislation |
Report-Taxation Laws Amendment Bill (No. 5)
1997 |
" |
Economics Legislation |
Report-Trust Loss and Family Trust Bills |
" |
Rural and Regional Affairs and Transport
Legislation |
Report-Sun Fund Bill 1997 |
" |
Legal and Constitutional References |
Report-Sexuality Discrimination |
3.12 |
Scrutiny of Bills |
Alert Digest No. 18 of 1997 |
4.12 |
Scrutiny of Bills |
19th Report |
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(02) 6277 3364