Joint committees are committees consisting of members of both Houses appointed by both Houses. They are established where it is considered that matters should be the subject of simultaneous inquiry by both Houses.
Joint committees have some potential difficulties in a bicameral legislature. In the Australian situation, in which one House is rigidly controlled by the ministry, the use of joint committees tends to prevent the Senate exercising a review and second opinion function and thereby subvert the concept of bicameralism. The effect is worse when there is unequal representation of the Houses; many of the joint committees on which senators serve (see Appendix 8) have unequal numbers of senators and members. Their value to the Senate must, on that ground alone, be queried. (For the repeated refusal of a joint committee, the Joint Standing Committee on Treaties, to consider a matter referred to it by the Senate, see SD, 20/6/2005, pp 61-4.)
The Constitution does not mention joint committees and, by referring in section 49 to the powers, privileges and immunities of each House, may exclude joint committees from the inheritance of the powers, privileges and immunities provided by that section. For this reason, when the Parliament contemplated the establishment of joint committees in 1913 to examine public works proposals and government accounts, it was thought to be necessary for them to be established by legislation so that the committees could, among other things, be empowered to take evidence on oath. (The doubt about the legal status of joint committees was cleared up by the Parliamentary Privileges Act 1987: see Chapter 2, Parliamentary Privilege.) The establishment of joint committees by statute, however, brought with it further difficulties. The inclusion in statutes of provisions relating to the functions, composition, powers and proceedings of the committees may make their operations justiciable. In the case of the early joint statutory committees, the Public Works and Public Accounts Committees, the enabling statutes make provision for such details as the quorums and voting procedures of the committees. This may mean that the operations of the committees are vulnerable to legal challenge (in this connection, see Corrigan v Parliamentary Criminal Justice Committee 2001 2 Qd R 23; although the matter there raised was held to be non-justiciable, other actions by a committee under statutory authority may be amenable to judicial review). The inflexibility of providing parliamentary procedures by statute also gives rise to difficulties. An example is a legal opinion given in respect of the Public Accounts Committee in 1982 which supported the view, rejected by the Senate, that the committee did not need the permission of the Senate to meet while the Senate was sitting, notwithstanding a general prohibition to this effect in the Senate standing orders. (Report of Standing Orders Committee, October 1983, PP 117/1983, pp 1-4; 1/3/1984, J.687.)
The difficulties generated by the early models of statutory committees have been ameliorated to a large extent by the adoption of a different approach to statutory committees in later models. In these models, committees are established by statute and provisions for membership and committee functions are contained in the statute. The statute also provides, however, that all matters relating to the powers and proceedings of the committee shall be determined by resolution of both Houses. This approach reduces the matters relating to joint committees that may be justiciable and reserves for the Houses the appropriate task of determining the powers and proceedings of their committees which are therefore probably not justiciable.
It is apparent that notwithstanding their problematic character, joint committees will continue to be used. There is now a significant group of joint statutory committees whose role is to monitor the operations of sensitive agencies or complex areas of the law. The joint committees on which senators serve are:
Joint statutory committees
Australian Commission for Law Enforcement Integrity
Australian Crime Commission
Broadcasting of Parliamentary Proceedings
Corporations and Financial Services
Intelligence and Security
Public Accounts and Audit
Joint standing committees
Foreign Affairs, Defence and Trade
National Capital and External Territories
By convention, joint committees follow Senate standing orders where their statutes or resolutions of appointment are silent. Procedures applying to joint committees are therefore referred to throughout the remainder of this chapter under appropriate headings.
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