For the sitting period 22
November-10 December 1999
Orders for documents
There were further developments in the four cases of government
refusals to produce documents in response to orders of the Senate
(see Bulletin No. 137, pp 1-2).
Welfare reform paper: The final version of this
document, stated by the minister to be substantially the same as
the draft demanded by the Senate, was tabled on the first day of
the sittings. The committee hearing ordered by the Senate occurred
on 12 November; relevant officers duly appeared and answered many
questions about the document, although under instruction from the
minister not to answer some types of questions. The committee
reported on 22 November, including in its report advices from the
Clerk suggesting that the minister’s claim of public interest
immunity raised novel grounds and was not well founded. To a motion
to take note of the report, Senator Faulkner moved an amendment
that the Senate reject the minister’s claim of public
interest immunity and the grounds on which it was based. This
amendment was passed on 25 November. The effect of it seems to be
that the Senate does not accept "confusing the public debate" or
"prejudicing policy consideration" as grounds for public interest
immunity claims or that all advice to ministers is
"cabinet-in-confidence".
Higher education funding: The government’s
grounds for not producing most of the documents required by the
order were commercial confidentiality, cabinet confidentiality, and
possibly confidentiality of advice. An advice from the Clerk
suggested that these grounds were over-extended in the claim. The
advice was produced at an estimates hearing on 2 December, at
which questions were asked and answered about the matter.
Magnetic resonance imaging machines: The minister
conveyed a refusal to produce the documents at question time on 23
November and followed this up with a letter on 29 November.
The principal grounds were risk of prejudice to administrative
inquiries and the confidentiality of the government’s
relationship with the medical profession. Advices from the Clerk
suggested that these were also novel grounds and lacking in
cogency. The matter was extensively explored at an estimates
hearing on 1 December, in which most of the required information
seems to have been produced, and the advices were released.
Draft air safety report: The government’s grounds
for refusing to provide this document were stated in a letter on 22
November, the principal ground being the inappropriateness of
releasing a draft report. The final report was tabled on 23
November and may have been speeded by the order for the draft
report. In debate on the report it was stated that it confirmed
apprehensions about the abandoned class G airspace trial.
By way of a motion to take note of answers after question time
on 30 November, the government’s frequent resort to claims of
public interest immunity in recent times was debated. In the
Parliament of 1993-96 there were 53 orders for documents and only
four were not complied with, while in the Parliament of 1996-98
there were 48 orders and five not complied with. In the last two
months the government has tallied four refusals.
The advices on the subject, which were released, are available
from the Clerk’s Office.
Privilege: witnesses
The Privileges Committee received a reference on 7 December on
alleged threats to witnesses who made submissions to the Select
Committee on A New Tax System. Senator Allison had received a
letter in which a witness referred to such threats.
Procedural changes
The Senate adopted on 22 November the second report of 1999 of
the Procedure Committee, with the result that:
- Standing order 142 is amended so that all duly circulated
amendments, not just government amendments, are put and determined
at the expiration of the allotted time under a limitation of time
on a bill (the guillotine). This significantly consolidates the
rights of non-government senators and reflects recent
practice.
- Government reports on unproclaimed legislation under standing
order 139(2) are required only once a year.
- Senators are required to declare the interests of their
partners of either sex as well as spouses.
- Advices provided to the Rural and Regional Affairs and
Transport Legislation Committee about the relevance of questions in
estimates hearings were endorsed. This is significant in that it
provides an authoritative view of the Senate on relevance, which
may prevent future disputes about relevance in estimates
hearings.
On 30 November two amendments of the standing orders which had
operated on a temporary basis were adopted permanently:
- Standing order 67, to provide for the lodging of postponement
notifications instead of the moving of postponement motions.
- Standing order 76, to provide the option of giving notice by
delivery at the table instead of oral presentation.
Qualification of senators
On 22 November the President tabled the judgment of the Court of
Disputed Returns in Rudolphy v Lightfoot. The appointment
of Senator Lightfoot to a casual vacancy was challenged on the
basis that a member of the Western Australian Legislative Council
was not qualified when the appointment was made. The challenging
petition was lodged outside the 40-day limit provided by the
Commonwealth Electoral Act, but the petitioners claimed that the
court should interpret this period as running from the time when
the defect was discovered. The court rejected this argument and
found that it had no power to set aside the 40-day limit. Even if
that argument had succeeded, there is a line of precedents
suggesting that the actions of a legislature, including the
appointment of a senator to a casual vacancy, will not be
invalidated by the presence of an unqualified member.
Public service training
Throughout the period reports were presented by public service
departments on actions they have taken to train their senior
officers in parliamentary matters. These reports are required by an
order of the Senate of 1 December 1998, which arose from cases
reported on by the Privileges Committee of contempts committed by
public officers through ignorance of parliamentary processes.
Legislation
The government was successful in having major legislative
packages passed during the period, usually through compromise with
other parties reflected either in the shape of the legislation as
introduced or in subsequent amendments.
Major successes were:
Business taxation package: Passed on 29 November as a
result of agreement between the government and the opposition.
New Tax System bills: Adjustments to the GST
legislation finally passed on the last day of the sittings as a
result of agreement between the government and the Democrats. The
passage of the legislation was almost imperilled by confusion on
the part of the government’s advisers over whether amendments
should be requests. The Chair of Committees altered two government
amendments from requests to amendments.
Federal Magistrates package: This package is of
considerable constitutional significance; in establishing Federal
Magistrates’ Courts it virtually completes a parallel federal
judiciary along American lines. The framers of the Constitution had
sought to avoid this by allowing federal jurisdiction to be
conferred on state courts. The bills were extensively amended on
23 November; some amendments disagreed to by the government
were insisted on on 30 November and were finally agreed
to.
Social Security (Administration) package: Amended on 24
and 25 November, and amendments accepted by the government.
Equal Opportunity for Women in the Workplace Bill:
Extensively amended on 30 November, discrimination on grounds of
pregnancy being the main subject of disagreement. The amendments
were not insisted on and substitute amendments agreed to on 9
December.
Australian and New Zealand Food Authority Bill:
Amendments made on 17 and 18 December accepted by the
government.
The following legislation was not successful:
Regional Forest Agreements Bill (see Bulletin No. 137,
p. 4): Lengthy proceedings on 23 and 24 November but mainly
relating to the composition and functions of an industry council
and parliamentary control over regional forest agreements. The
amendments disagreed to by the government were insisted on, and the
bill did not pass.
Social Security (Disposal of Assets) Bill: This bill
was rejected on 25 November, and is only the second bill rejected
outright in this Parliament.
Aboriginal and Torres Strait Islander Heritage Protection
Bill: A major piece of legislation. Voluminous amendments made
in the Senate were accepted in part and rejected in part by the
government in the House. The bill was returned on 9 December and
not resolved.
Taxation Laws Amendment Bill (No. 8): The amendments
most in dispute related to donations and loans to political parties
by bodies of the nature of the controversial Greenfields
Foundation. The amendments were rejected by the government in the
House but insisted on by the Senate on 9 December, leaving the bill
unpassed.
Committees
A motion calling on the government to settle "stolen generation"
cases and referring related matters to the Legal and Constitutional
References Committee was passed over the objections of the
government on 24 November.
The following committee reports were presented during the
period:
Date tabled |
Committee |
Title |
22.11 |
Finance and Public Administration
Legislation |
Report—Portfolio Budget
Statements |
" |
Employment, Workplace Relations, Small
Business and Education Legislation |
Additional
Information—Additional Estimates 1998-99 |
" |
Rural and Regional Affairs and
Transport Legislation |
Additional
Information—Additional Estimates 1998-99 and Estimates
1999-2000 |
" |
Finance and Public Administration
References |
Report—Business Taxation
Reform |
" |
Superannuation and Financial
Services |
Report—Choice of Superannuation
Funds (Consumer Protection) Bill 1999 |
" |
Community Affairs Legislation |
Report—Social Security Amendment
(Disposal of Assets) Bill 1999 |
" |
Community Affairs References |
Report—Changes to the Welfare
System |
23.11 |
Rural and Regional Affairs and
Transport Legislation |
Additional
Information—Additional Estimates 1998-99 and Estimates
1999-2000 |
24.11 |
Scrutiny of Bills |
18th Report and Alert Digest No. 18 of
1999 |
25.11 |
Finance and Public Administration
Legislation |
Additional
Information—Additional Estimates 1998-99 |
29.11 |
Economics Legislation |
Report—A New Tax System (Tax
Administration) Bill 1999 |
" |
Economics Legislation |
Report—Taxation Laws Amendment
Bill (No. 8) 1999 |
" |
Employment, Workplace Relations, Small
Business and Education Legislation |
Report—Workplace Relations
Legislation Amendment (More Jobs, Better Pay) Bill 1999 |
30.11 |
Privileges |
81st, 82nd and 83rd Reports —
Right of Reply |
" |
Economics Legislation |
Report—Diesel and Alternative
Fuels Grants Scheme (Administration and Compliance) Bill 1999 |
" |
Economics Legislation |
Report—Taxation Laws Amendment
Bill (No. 9) 1999 |
" |
Superannuation and Financial
Services |
Report—Superannuation
Legislation Amendment Bill (No. 4) 1999 |
6.12 |
Scrutiny of Bills |
19th Report and Alert Digest No. 19 of
1999 |
" |
National Crime Authority |
Report—Involvement of the
National Crime Authority in Controlled Operations |
" |
Legal and Constitutional
Legislation |
Report—Family Law Amendment Bill
1999 |
7.12 |
Employment, Workplace Relations, Small
Business and Education Legislation |
Additional Information—Budget
Estimates 1997-98 and 1999-2000 and Additional Estimates
1998-99 |
" |
Rural and Regional Affairs and
Transport Legislation |
Interim Report—Australian
Quarantine and Inspection Service and the Importation of
Salmon |
" |
Economics Legislation |
Report—A New Tax System
(Indirect Tax and Consequential Amendments) Bills |
8.12 |
Community Affairs References |
Report—Childbirth
Procedures |
" |
Community Affairs References |
Additional Information—Changes
to the Welfare System |
" |
Legal and Constitutional
Legislation |
Report—Australian Federal Police
Legislation Amendment Bill 1999 |
8.12 |
Legal and Constitutional
Legislation |
Report—Family Law Amendment Bill
1999—Additional Comments |
Inquiries: Clerk's Office
(02) 6277 3364