Odgers' Australian Senate Practice Thirteenth Edition

Chapter 16 - Committees

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Appointment and membership of committees

Standing committees are appointed at the beginning of each Parliament pursuant to standing orders. The life of a Parliament is determined by a general election for the House of Representatives, which usually also corresponds with a periodical election for the Senate.[111]

Membership of committees

Members are appointed to committees in accordance with any membership formula contained in the relevant standing order or resolution, on motion, usually by a minister, following nomination by party leaders in letters to the President. Membership of the legislative and general purpose standing committees is equally shared between government and non-government senators but the chair has a casting vote when the votes are equally divided.

Membership of committees to which the Leader of the Opposition or any minority groups or independent senators may nominate members is normally determined by agreement. Where agreement cannot be reached the question of representation on a committee is determined by the Senate using the provisions in standing orders 25(6), 27(1) and (2), as appropriate, in conjunction with standing order 163 which sets out the mechanism for holding a ballot. Where other standing orders do not apply, standing order 27(1) provides a general mechanism for senators to be nominated for places on committees and, if one senator so requires, to be selected by ballot. Standing order 27(2) provides that a ballot may be held in selecting a senator to replace a senator discharged from a committee. Although the ballot provisions are occasionally used, membership is determined in most cases by agreement.

Membership of committees may change during their life. When this occurs a motion is moved, usually by a minister by leave without notice, discharging the former member and appointing a new member nominated by the relevant party leader or independent in a letter to the President. If a place becomes vacant by virtue of a committee member ceasing to be a senator, there is no requirement for a motion to discharge the former member.

Chairs and deputy chairs of committees

The provisions governing the appointment of committees usually provide for the chair to be elected by the committee, subject to the prescription as to the party from which the chair is to come. Occasionally the chair is designated by the Senate.[112]

(SEE SUPPLEMENT)

A committee may at any time replace its chair, subject to the governing requirements of the Senate. If a senator is appointed to a committee as a substitute for a particular inquiry for the senator who is the chair[113] the committee may substitute another of its members (not necessarily the senator substituted by the Senate) for the chair for that inquiry. The same applies to the deputy chair. This does not mean that there are two chairs or deputy chairs at any time, but that there are different chairs or deputy chairs for the period of the committee's consideration of the different inquiries.

In the legislative and general purpose standing committees the chair, or the deputy chair when acting as chair, may appoint another member of the committee to act as chair during the temporary absence of both the chair and deputy chair from a meeting (SO 25(9)).

Under standing order 25 the chairs of the legislation committees must be chosen from the government party members, and the chairs of the references committees from the non-government members.[114] The contrary arrangements apply to the position of deputy chair. Non-government chairs and deputy chairs are determined by agreement between non-government groups and independent senators. In the absence of agreement the allocation determined by the by Senate.[115]

For procedures for electing chairs and deputy chairs, see below under Conduct of proceedings, Meeting and election of chair.

Substitute and participating membership

Substitute members are members appointed to committees in substitution for other members in relation to particular inquiries.[116]

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,[117] 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).

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.[118] 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,[119] the Procedure Committee recommended that the former rule, allowing any senator to participate, be restored for estimates hearings.

Participating membership does not now 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.[120] 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.[121]

Participating members are counted for the purpose of forming a quorum if a majority of members of a committee is not present.

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.[122] 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,[123] 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[124] and is now a common feature of select committees. In the 43rd Parliament, the concept of participating membership (sometimes on a limited basis) was extended to certain joint standing and joint select committees, with the agreement of the House of Representatives.[125]

A temporary order agreed to on 14 August 2006, and subsequently incorporated in standing order 25, 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.[126]

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.

President and Deputy President on committees

The President is excluded from membership of committees other than those of which the President is an ex officio member.[127] Thus, a senator upon election as President ceases to be a member of any committees other than those of which the President is an ex officio member. There is no such restriction on the Deputy President. If the Deputy President is elected to serve on any committee but declines to do so, another senator shall be elected.[128] The Deputy President chairs the Committee of Chairs established under standing order 25(10).

Senators on committees before taking their seats

Arrangements for membership may also take into account the forthcoming commencement of terms of new senators. A period of four to six weeks frequently elapses between the commencement of senators' terms on 1 July and the date on which they are sworn, and the question arises whether a senator who has not taken the oath or affirmation pursuant to section 42 of the Constitution may participate in the proceedings of a committee, and may be appointed, prospectively, as a member of a committee. The view taken and the practice followed by the Senate is that, while a senator cannot participate in the proceedings of the Senate until that senator has taken the oath or affirmation under the Constitution, a senator can participate in the proceedings of a Senate committee from the date of becoming a senator and may be prospectively appointed by the Senate as a member of the committee.[129]

Ministers and parliamentary secretaries on committees

There is nothing in the rules of the Senate to prevent ministers or parliamentary secretaries serving on committees. Ministers usually do not do so, and parliamentary secretaries only occasionally. Their presence on committees could give rise to questions of conflict of interest or bias (see below), for example, where committees are inquiring into actions of government for which ministers and parliamentary secretaries, as members of the executive government, are individually or collectively responsible.

Conflict of interest

Standing order 27(5) provides that a senator shall not sit on a committee if the senator has a conflict of interest in relation to the inquiry of the committee. This standing order was the subject of a statement by President Beahan on 24 February 1994.[130] It had been suggested that a senator had a conflict of interest because he had written newspaper articles critical of a committee of which he was a member, without identifying himself as such. The President indicated that the standing order applies to a situation in which a senator has a private interest in the subject of the committee's inquiry which conflicts with the duty of the senator to participate conscientiously in the conduct of the inquiry, an example being a senator holding shares in a company, the activities of which are under inquiry. There is no precedent of the Senate enforcing this rule by removing a chair or member of a committee, or disagreeing with an appointment.

Disqualification for bias

Occasionally it is suggested that senators should not serve on committees because it may appear that they have prejudged matters under inquiry or cannot bring an unbiased mind to those matters.

The question of whether members of the Committee of Privileges should be disqualified because, having been involved in earlier inquiries relevant to the committee's current inquiries, they may have pre-judged the issues, arose in relation to the committee's 17th and 18th reports. In its 18th report, the committee reaffirmed the principle that it was for individual senators to determine for themselves whether they should disqualify themselves in any particular circumstances. [131] Advice from the Clerk of the Senate, tabled with the report, cited several cases where members and senators had withdrawn or not withdrawn from inquiries in response to suggestions that they may have pre-judged the issues before those inquiries, and concluded "that questions concerning the service of members on a committee where they may be regarded as not entirely impartial should be decided by the individual members concerned, and that there is no general rule or convention which may be applied to all cases".[132] In the advice provided to the committee, the following examples were cited:

  • A challenge was foreshadowed to three members of the Select Committee on Allegations Concerning a Judge who had been members of the earlier Select Committee on the Conduct of a Judge. The three members did not disqualify themselves and the committee reported that the members considered their previous service "did not preclude them from making a proper and unbiased judgment on the matters before this committee on the basis of the evidence to be heard by it, or that they had any sense of vested interest in maintaining their earlier decision".[133] The challenge did not eventuate, nor was the report queried because the three senators had participated in the inquiry.
  • Senator Wheeldon did not participate in a Committee of Privileges inquiry into the unauthorised publication of a proposed report by a select committee of which he was a member, but another member of the select committee, Senator Branson, served on the Committee of Privileges, stating that he did not think it necessary for him to withdraw unless something arose to alter that decision.[134]

As was pointed out in the advice to the Privileges Committee, senators are called upon to express views and make decisions on many matters, and it would be too restrictive to expect them to disqualify themselves from any inquiry into matters on which they had expressed views or made decisions.

In 2012, Senator Brandis excused himself from participating in a Privileges Committee inquiry into a matter on which he had previously expressed strong views publicly.[135]

Suspension from the sittings of the Senate

There is nothing in the standing orders to prevent a senator who has been suspended from the sittings of the Senate from attending a committee meeting.[136]


111. See Chapter 4, Elections, and Chapter 7, Meetings of the Senate.
112. 30/9/1999, J.1800.
113. See below, under Substitute and participating membership.
114. SO 25(9)(a), (b).
115. SO 25(9)(a(c). For an example of an absence of agreement notified to the Senate, see correspondence from the Australian Greens Whip to the President, tabled on 31/10/2011, J.1658 and motion agreed to on 2/11/2011, J.1708-10, after debate, SD pp. 7905-46.
116. SO 25(7).
117. PP 450/1993.
118. SD, 24/8/1994, pp. 171-2, 178, 189.
119. PP 171/1995.
120. SO 26(8).
121. SO 25(7)(c).
122. 12/5/1994, J.1684.
123. 21/9/1994, J.2202.
124. 14/2/2008, J.145-8; 15/5/2008, J.419-20; 25/6/2008, J.626-32.
125. 30/9/2010, J.141-3; 12/5/2011, J.918; 16/6/2011, J.1014-6.
126. 14/8/2006, J.2482; 10/3/2009, J.1657-8.
127. SO 27(3).
128. SO 27(4).
129. See, for example, 27/5/1993, J.293-4; 28/6/1996, J.446-7; 30/6/1999, J.1402-4; 27/6/2002, J.546-50; 23/6/2011, J.1119-23.
130. SD, 24/2/1994, pp. 1036-7.
131. p. 129, PP 461/1989.
132. Advice dated 1/2/89, published in Volume 3 of committee documents tabled with the 18th report of the Committee of Privileges, 16/6/1989, J.1921; see also advice dated 18/1/1989. This advice, together with a further advice on this subject, dated 20/10/2010, is published on the committee's website.
133. Select Committee on Allegations Concerning a Judge, report, PP 271/1984, p. 3.
134. Committee of Privileges, 1st report, PP 163/1971, p. 4.
135. See personal explanation by Senator Brandis, 20/3/2012, J. 2304, SD, pp. 2283-4.
136. See Chapter 10, Debate, under Disorder.

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