Ministerial accountability and censure motions
As has been noted above, governments are formed by the party or coalition of parties which can command a majority of votes in the House of Representatives, and ministers are appointed by the Governor-General on the advice of the leader of that party or coalition. The termination of a minister's appointment is likewise effected by the Governor-General on the advice of the Prime Minister. While ministers are neither appointed nor removed by the Senate, they are accountable to it, that is, they are expected to account for their actions and policies by, for example, answering questions, providing documents, and appearing before committees. In 1984 the Senate demonstrated the importance placed on accountability when it censured a minister for, among other matters, "his refusal to explain his actions despite repeated questioning by the Senate". Ministers have been censured for matters as varied as: misleading the Senate, failing to answer questions on notice within the stipulated time limit, maladministration of a department, attempting to interfere in the justice system of another country, failing to declare an interest in a matter, for "contemptuous abuse" of the Senate, and for refusing to produce documents in compliance with an order of the Senate. The Senate has insisted on ministers accepting full personal responsibility for answers given on behalf of others, and ministers have been censured on this basis.
Although a resolution of the Senate censuring the government or a minister can have no direct constitutional or legal consequences, as an expression of the Senate's disapproval of the actions or policies of particular ministers, or of the government as a whole, censure resolutions may have a significant political impact and for this reason they have frequently been moved and carried in the Senate. They provide a substitute to the usual inability, because of ministerial control, of the House of Representatives to discipline a minister.
On 10 October 1996 the Senate passed a resolution calling on the Assistant Treasurer, Senator Short, and the Parliamentary Secretary to the Treasurer, Senator Gibson, to explain apparent conflicts of interest arising from their shareholdings. Those two office-holders subsequently resigned. House of Representatives ministers said to be in the same situation, however, escaped unscathed, and the Prime Minister then indicated that the code of ministerial conduct would be reviewed as it was too restrictive of ministers' private interests. This incident provided evidence of the thesis that ministers are held accountable in the Senate but not in the House of Representatives to which the ministry is supposed to be responsible.
Almost all such motions have been expressed in terms of censuring either individual ministers or the government. There have been no motions proposing want of confidence in the government and very few expressing want of confidence in particular ministers, none of which was successful. No motion of want of confidence in a minister has been proposed since 1979 and the practice now is to frame such motions in terms of censure.
Two censure motions adopted by the Senate in the early 1970s called for the resignations of those to whom they were directed. One case involved a minister, and in the other the government was called on to resign. The government took no action in either case. Only two of the unsuccessful censure motions moved since that time have included calls for resignation.
The Senate has passed motions of censure on ministers in the House of Representatives (see the list of successful motions below). Following the adoption of a censure motion against the Prime Minister in 1992 the Senate passed a motion that the censure resolution be communicated by message to the House of Representatives. On the day after the Senate's censure of a Senate minister in 1973 the House of Representatives, on the motion of the government and voting on party lines, passed a motion affirming confidence in that minister.
While there are no special provisions in the Senate standing orders concerning censure motions, it is the usual practice for such motions to be accorded immediate precedence or for the debate to be adjourned to a later hour the same day.
Censure motions are initiated either by giving notice of motion or, more commonly, a motion is moved pursuant to a contingent notice "that so much of standing orders be suspended as would prevent Senator (. . .) moving a motion to provide for the consideration of a matter, namely a motion to give precedence to a motion of censure of (. . . )". Upon the adoption of the suspension motion another motion is moved to the effect that "a motion of censure may be moved immediately and have precedence over all other business this day till determined". The censure motion is then moved. Censure motions have also been moved by leave.
A censure motion specifies the minister or other senator towards whom it is directed and states the reason for the censure. The following is a typical example of the form:
That the Senate censures the Minister for Resources and Energy (Senator Walsh) for his deliberate misleading of the Senate by selective tabling of documents and his refusal to explain his actions despite repeated questioning by the Senate.
If a censure motion contains a number of propositions the question may be divided.
Motions of censure and want of confidence may be amended. For example, on 14 August 1968, in response to an Opposition motion "That the Minister for Repatriation lacks the confidence of the Senate", the Leader of the Government in the Senate moved an amendment which proposed that the words after "That" be omitted and the following be inserted: "the Senate affirms its confidence in the integrity and propriety of the Minister for Repatriation in the discharge of his Ministerial duties. The Senate rejects the charge made against him of interference in decisions of a Repatriation Tribunal. Presentation of so serious a charge unsupported by acceptable evidence is a misuse of the forms of the Senate". The Opposition raised a point of order that the proposed amendment was a direct negative of the motion and was therefore not in order. The Acting Deputy President, Senator Wood, ruled that the amendment was in order.
Censure motions have been directed at private senators.
It would not be proper for the Senate to seek to censure a private member of the other House. The Senate declared this principle in the context of a resolution granting permission for senators to appear before the House of Representatives Privileges Committee in an inquiry into unauthorised disclosure of joint committee documents. The President has declined to grant precedence to matters of privilege on the ground that the Senate may not inquire into the conduct of a member of the other House, and the same principle would apply to censure motions. This principle is apparently not observed in the House of Representatives. Ministers as ministers, however, may be censured, on the principle that as ministers they are accountable to the Senate although they are members of the House of Representatives.
Contingent notices have been given of censure motions directed at specified ministers. Following the censure of a minister for failing to table certain documents in compliance with an order of the Senate contingent notice was given of a motion which would allow certain penalties to be imposed on the minister, including preventing him from introducing bills. These contingent notices were not used.
Censure motions are not the only weapon in the Senate's armoury of accountability. They are often accompanied by inquiries by the Senate into ministerial conduct. A Senate inquiry into a matter of concern, or merely the prospect of one, can force a government to be more accountable. For example, following the resignation of the Minister for the Environment, Sport and Territories, Mrs Kelly, over the sports grants affair on 28 February 1994, the Opposition moved to establish a Senate select committee to inquire further into the affair and matters relating to government accountability. An amendment was moved to substitute for the select committee references to a series of measures designed to ensure greater accountability. A further amendment called for measures to strengthen the independence and capacity of the Auditor-General. Both sets of amendments and the main motion were negatived, the first amendment and the motion being negatived by equally divided votes. It was thought that a further motion for an inquiry would pass in the absence of some appropriate government action. The Leader of the Government in the Senate then made a ministerial statement outlining a number of measures which the government undertook to introduce, and to consider, to improve accountability mechanisms, including a replacement for the Audit Act.
Almost half of the censure motions proposed in the Senate since 1968 have been successful, and most of these have occurred since 1984. The following motions were adopted by the Senate.
- A motion that the Attorney-General (Senator Murphy) did not deserve the confidence of the Senate because of certain actions connected with alleged Croatian terrorism in Australia and the Australian Security Intelligence Organisation.
- A motion stating, inter alia, that "the Government's attempt to assert that Senator Gair had vacated his seat under section 44 or 45 of the Constitution on either 14 or 21 March 1974, and did not need to resign as originally intended, deserves the gravest censure and the Government should resign".
- A motion stating that the Minister for Foreign Affairs (Senator Willesee) was deserving of censure and ought to resign because of certain matters relating to the departure from Australia of a Russian musician, the recognition of the Soviet incorporation of the Baltic States, and foreign policy alignments. The question was, by leave, divided, and the motion as it related to the Baltic States agreed to.
- The Minister for Resources and Energy (Senator Walsh) was censured for his deliberate misleading of the Senate by selective tabling of documents and his refusal to explain his actions despite repeated questioning by the Senate.
- A motion censuring the government for " (a) its attack on the Senate's determination to exercise its Constitutional responsibilities; (b) proposing to force through a Joint Sitting legislation which it has admitted needs amendment; and (c) wasting taxpayers' money by persisting with legislation which would abuse personal privacy beyond limits acceptable to the principle of democracy and individual rights sacred to the Australian community".
- A motion expressing "profound disapproval of the unparliamentary conduct" of the Minister for Finance (Senator Walsh) during the course of the debate on the appropriation bills.
- A motion condemning the government "for its failure to protect the privacy of Australian citizens".
- The Minister for Resources (Senator Cook) was censured for improper alteration of the Hansard record of an answer he had given in response to a question without notice.
- The Minister representing the Minister for Defence (Senator Richardson) and the Minister for Defence were censured for their joint failure to provide an answer to a question on notice within 30 days.
- The government was censured for its mismanagement of an airline pilots' dispute.
- The government and its whips were censured for their actions in discouraging the formation of a quorum in the Senate.
- The Minister for Justice (Senator Tate) was censured for failing to meet the required standards in the conduct of his office as a senior law officer of the Crown, by interfering in the administration of justice in another country.
- Senator Richardson, in his former capacity as Minister for the Environment, was censured for his handling of the matter of payment of money under an agreement to a timber processing firm.
- The government was censured for "its unjustified failure to comply with the Senate's resolution of 10 September 1991" to table a tape recording.
- The Minister for Transport and Communications (Senator Richardson) was censured for allegedly misleading the Senate, attempting to interfere in the justice system of the Marshall Islands, and failing to declare an interest as a minister.
- The Prime Minister was censured for remarks which he had made about the Senate, which were characterised as contemptuous abuse. The Senate also adopted a motion that the censure resolution be communicated by message to the House of Representatives.
- The Leader of the Government in the Senate (Senator Evans) was censured for refusing to comply with an order of the Senate to produce a document. The minister had declined to produce the document on the grounds of confidentiality.
- The Minister representing the Minister for Administrative Services, Senator McMullan, and the Minister for Administrative Services, Mr Walker MP, were censured for not complying with an order of the Senate to provide documents. The ministers had not provided the information requested on the grounds of commercial confidentiality. On 8 and 9 June 1994 contingent notices of motion were given which, noting that despite the censure the documents had still not been provided, allowed for the imposition of "penalties" on the Minister for Trade, Senator McMullan, including preventing him introducing bills.
- The Minister for Transport, Mr Brereton MP, was censured for his negligent administration of air safety.
- The Prime Minister, the Leader of the Government in the Senate, Senator Gareth Evans, and the Minister for Primary Industries and Energy, Senator Collins, were censured for misleading statements about the intended application of Aboriginal land funds and entering into a secret agreement contrary to their public statements about the matter.
- The Minister for Communications and the Arts, Mr Lee, and his Senate representative, Senator McMullan, were censured for failure to produce a document in response to an order of the Senate.
- The Minister representing the Attorney-General, Senator Bolkus, was declared to be in contempt for failure to produce documents ordered by the Senate to be produced.
- The Leader of the Government in the Senate, Senator Gareth Evans, was censured for remarks impugning the integrity of a Western Australian royal commissioner and the counsel assisting the commission.
- The Minister for Aboriginal Affairs, Senator Herron, was censured for giving misleading answers in relation to funding of Aboriginal programs.
- The Leader of the Government in the Senate, Senator Hill, was censured for not responding properly to an order for documents relating to the Jabiluka uranium mine.
- The Minister for Forestry and Conservation, Mr Tuckey, was censured for inflaming rather than mitigating the conflict over Western Australia's regional forest agreement.
- The Minister for Family and Community Services, Senator Newman, was censured for failing to produce a document on proposed welfare changes in response to an order of the Senate.
- The Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, was censured for failure to fulfil his ministerial responsibilities and provide leadership in indigenous affairs.
- The Parliamentary Secretary to Cabinet, Senator Heffernan, was censured for recklessly making unsubstantiated allegations against a justice of the High Court, and the Prime Minister was censured for not preventing Senator Heffernan's actions.
- The government was censured for deploying Australian troops to Iraq without United Nations authorisation and without revealing to the Australian people the commitments on which the deployment was based.
- The Prime Minister was censured over the Iraq war and the lack of evidence of the claimed weapons of mass destruction in Iraq.
- The Leader of the Government in the Senate, Senator Hill, was censured for failing to comply with an order for the production of documents relating to the pressure allegedly exerted upon the Commissioner of the Australian Federal Police, Mr Keelty, to change his statement on terrorism and the war in Iraq.
- The Leader of the Government in the Senate, Senator Hill, was censured for failing to take seriously his responsibility in relation to the abuse of prisoners in Iraq and to correct serious communications problems in his office and the Defence Department contrary to assurances which were given after the "children overboard" affair of 2001-02.
- The Minister for Immigration and Multicultural and Indigenous Affairs, Senator Vanstone, was censured for her failure to take responsibility for the manifest failures of her department in relation to detained persons.
- The government was censured for systematic failures in the delivery of climate change programs, including home insulation, green loans, solar rebates, renewable remote power generation and renewable energy targets.
- In 1995, a censure motion was not proceeded with when the minister concerned apologised for her actions.
In June 2000, in passing a bill which was regarded as essential to the public interest, the Senate adopted a resolution noting the persistent failure of the Minister for Regional Services, Territories and Local Government, Senator Ian Macdonald, to answer questions relevant to the bill.
Although two of the motions listed above were not couched in terms of censure or want of confidence they had the same import as a censure motion. The motion passed on 19 November 1987 expressed "profound disapproval" of a minister's behaviour, and the motion passed on 24 February 1988 stated that the Senate "condemns" the government. For the same reason, an unsuccessful motion proposing that Senator Greenwood had "dishonoured the office of Attorney-General" is included in the list of unsuccessful censure motions.
Unsuccessful motions of censure or want of confidence have been moved on numerous occasions.
On several occasions unsuccessful amendments have been proposed to the address-in-reply, seeking to include an expression of censure or regret.
If a censure motion is moved before or during question time, questions are usually called on or resumed in accordance with the routine of business. A minister may ask for questions to be placed on notice, but it is open to the Senate to order that questions continue.