Substitute and participating membership
Substitute members are members appointed to committees in substitution for other members in relation to particular inquiries (SO 25(7)).
The practice of substitute membership developed, particularly in respect of estimates committees, to enable senators with a special interest in certain policy areas to contribute to the work of committees of which they were not members. Although the standing orders governing the operation of legislative and general purpose standing committees and estimates committees provided for senators who were not members of committees to participate in their public meetings (in the case of legislative and general purpose standing committees) and deliberations (in the case of estimates committees), their role was limited to asking questions and they were precluded from voting. Substitute membership, on the other hand, although not defined in standing orders, conferred full membership rights on the senator for the purposes of the matter for which they were a member, including the right to attend private meetings, make contributions to reports and vote. Mainly used by the Opposition to enable wide participation of its members in estimates committees, these practices have also been used to enable senators to participate in particular inquiries by legislative and general purpose standing committees.
The procedure for participating membership was written into standing order 25 in 1994.
A difficulty arose in 1993 when the standing committee on Industry, Science, Technology, Transport, Communications and Infrastructure considered a matter of privilege arising from one of its inquiries in which there were two substitute members participating. On advice by the Clerk of the Senate, the standing committee excluded the substitute members from consideration of the matter of privilege, acting on the principle that substitute members should act as members of a committee only in respect of matters that were wholly part of the inquiry for which they were substitute members. The matter of privilege was not wholly part of the inquiry but related to the general operations of the committee, governed by Privilege Resolution 1(18), and should therefore be determined by the permanent membership. In its 3rd report of 1993 (PP 450/1993), the Procedure Committee supported these principles, emphasising that it was open to the committee to consult with substitute members on any matter, regardless of their right to vote.
In respect of the matters for which the substitute member is appointed, the substitute member replaces the other member, who ceases to be a member of the committee for those matters. It is not open to the other member then to participate in committee proceedings on those matters, unless he or she is appointed as a participating member (see below).
Participating members of committees are appointed as such by the Senate, and have all the rights of members except the right to vote (SO 25(7)).
Participating members are counted for the purpose of forming a quorum if a majority of members of a committee is not present.
Participating membership does not have effect for estimates inquiries. In relation to estimates hearings, senators who are not members and who attend meetings of the committees may question witnesses and participate in the deliberations of a meeting, but this does not empower them to move motions at meetings (SO 26(8)). On the other hand, in relation to committees’ proceedings other than in respect of estimates hearings, participating members have all the rights of members of committees, except the right to vote, and therefore may move motions in the committees (SO 25(7)(c)).
As well as formalising the practice of substitute membership, the 1994 amendments of the standing orders introduced the concept of participating membership. These amendments replaced the former provisions relating to legislative and general purpose committees, allowing any senator to participate in public meetings, with a regime under which only members or participating members can take part in committee proceedings. Whereas substitute members have full membership rights in respect of the matter for which they are a member, participating members have all the rights of members in relation to all matters before the committees except the right to vote. They do not possess any rights which members of a committee do not possess; for example, they may not participate in the proceedings of a subcommittee unless the committee has conferred that right on all its members. Participating membership, like substitute membership, does not alter the balance of party numbers on a committee as provided in the standing orders.
Participating membership was initially conceived as a means of facilitating participation in selected inquiries by independents and members of minor parties. It was argued that the opportunities for government and opposition senators to make substitute arrangements were not available to the independents and minor parties (SD, 24/8/1994, pp 171-2, 178, 189). In debate on the changes to standing orders relating to committees on 24 August 1994, the opportunity for participating members to contribute to reports was particularly emphasised. Concern was expressed, however, that participating members may attach conclusions and recommendations to reports without having participated significantly in the committee’s evidence-gathering and analysis; and that unanimous and delicately negotiated reports could therefore be compromised. In view of these concerns, a possible review of these arrangements was foreshadowed should any difficulties arise, but the review has not proved necessary.
Soon after the implementation of this system it became apparent that the Opposition, rather than using substitute arrangements, intended to use the concept of participating membership to compensate for the loss of the ability of non-members to attend hearings and ask questions. With many senators nominating as participating members of a large number of committees, the system threatened to become unwieldy and the fundamental features and benefits of committees as small and flexible bodies were challenged. In its First Report of 1995 (PP 171/1995), the Procedure Committee recommended that the former rule, allowing any senator to participate, be restored for estimates hearings.
Participating or substitute membership on committees other than legislative and general purpose standing committees may be arranged through a special resolution of the Senate. In May 1994, for example, Senator Kernot was appointed as an additional non-voting member of the Committee of Privileges for its inquiry into her private member’s bill, the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill 1994 (12/5/1994, J.1684). In September 1994, Senator Vanstone was appointed as a substitute member of the Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies for its inquiry into the Classification (Publications, Films and Computer Games) Bill 1994 (21/9/1994, J.2202), the first time this select committee had received a bill under the selection of bills procedures. Participating membership was extended to select committees established in 2008 (14/2/2008, J.145-8; 15/5/2008, J.419-20; 25/6/2008, J.626-32).
(See Supplement) A temporary order agreed to on 14 August 2006, with effect on 11 September 2006, allows a member of a legislative and general purpose standing committee who is unavailable for a meeting to appoint a participating member as a temporary substitute. If a member is incapacitated or unavailable, the relevant party or group leader may make the temporary appointment. (14/8/2006, J.2482)
The standing order relating to the Appropriations and Staffing Committee allows senators who are not members of the committee to attend meetings, participate in deliberations and question witnesses but not vote. This provision recognises senators’ rights to participate without restriction in deliberations involving the affairs of the Department of the Senate.
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