For the sitting period 6-15 May 1997
VACANCIES: DELAY IN FILLING
The framers of the Constitution, in providing for state
parliaments to fill casual vacancies in the Senate, thought that
those parliaments, representing their states, would normally be
anxious to ensure the maintenance of their full compliment of
representation in the Senate. They did not foresee the situation of
governments completely controlling lower houses and therefore
controlling the process of filling vacancies. The results of this
situation were apparent in the Senate during this period of
sittings.
The vacancy created by the death of Senator Panizza has remained
unfilled for a record period of over 100 days. The reason for this
is that the nominee to fill the vacancy is a member of the state
Legislative Council and the state government wishes to retain his
vote in the Council until seats in the Council change hands as a
result of the last state election. The Senate passed a resolution
on 7 May drawing attention to the delay in filling the vacancy and
reiterating previous resolutions of the Senate that vacancies
should be filled as speedily as possible.
Another resolution passed on 15 May drew attention to the speed
of the Victorian state government in filling a vacancy caused by
the resignation of Senator Short (the replacement senator, Senator
Synon, was sworn in only two days after the resignation), this
speed contrasting markedly with the 84 days taken to fill the
vacancy caused by the resignation last year of Senator Gareth
Evans. The resolution suggested that partisan considerations were
influential. The earlier vacancy occurred during a general election
period, but the Senate could conceivably have decided to meet
during that period, not to mention Senate committees, and the
principle that vacancies should be filled as quickly as possible
was therefore applicable.
Senator Payne was sworn in on 6 May, having been appointed by
the New South Wales Parliament to fill the vacancy caused by the
resignation of Senator Woods.
PARLIAMENTARY PRIVILEGE: (1) SENATOR COLSTON MATTER
During investigations of alleged irregularities in Senator
Colston's travelling allowance claims, the President tabled in the
Senate a statement by Senator Colston and one of his staff
indicating that the irregularities were due to staff errors in the
claims. On 6 May the President tabled a further statement from the
staff member repudiating the earlier statement. This gave rise to a
question whether deliberately false and misleading statements had
been made to the Senate, and a question of privilege was raised
with the President under standing order 81. The revelation of the
second statement, however, caused the government to refer the
claims to the police for investigation as to possible fraud. It was
pointed out in advice by the Clerk to the President and senators
that the statements tabled in the Senate were protected by
parliamentary privilege and therefore could not be used in any
substantive way in any legal proceedings arising from any police
investigations. Any further statements made by Senator Colston and
the staff member to the Senate or its Privileges Committee would
similarly be unavailable for use in such legal proceedings. The
question was therefore raised whether the Senate should refrain
from inquiring into the privilege matter until the police
investigations and any consequent legal proceedings have concluded.
The President gave precedence to the matter of privilege and it was
referred to the Privileges Committee on 7 May, but the resolution
of reference enjoined the committee not to commence its inquiry
until the conclusion of the police investigations and any legal
proceedings.
Senator Colston resigned as Deputy President on 6 May, and was
replaced by Senator West, thereby restoring the practice of having
the President from the government party and the Deputy President
from the opposition.
PARLIAMENTARY PRIVILEGE: (2) SENATOR O'CHEE CASE
The President tabled on 14 May a request by solicitors
representing Senator O'Chee that the Senate intervene in a case
arising from a defamation suit against Senator O'Chee in respect of
statements he made outside the Senate. The other party in the suit
is seeking an order for discovery of documents in the possession of
Senator O'Chee, and he has claimed that the documents are so
closely connected with his participation in Senate proceedings that
they are covered by the provision relating to matters "for purposes
of or incidental to" such proceedings under the Parliamentary
Privileges Act 1987. The Queensland Supreme Court has rejected
this argument and the case is going to the Court of Appeal. The
Privileges Committee has a reference concerning legal proceedings
taken against Senator O'Chee and other persons who supplied him
with information relevant to proceedings in the Senate. The request
by the solicitors has not been considered. (The scope of the
statutory provision and the question whether it grants any immunity
from compulsory production of documents in legal proceedings was
the subject of a paper presented by the Clerk at the Conference of
Presiding Officers and Clerks in Hobart last year.)
LEGISLATION
A great deal of time during the sitting period was spent on the
government's superannuation surcharge package of bills, which were
designed to impose a tax on certain superannuation payments. The
bills were finally passed on 12 May with many amendments.
The retirement savings accounts package of bills, having been
previously negatived at the third reading, were revived and
recommitted on 12 May, thereby providing the second precedent for
bills treated in that way (see Bulletin No. 113, p. 1). The motion
reviving the bills established a further precedent by providing
that one of the bills would be reconsidered as it was before it was
amended in committee of the whole when it was last debated, while
the two other bills in the package would be reconsidered as they
emerged from committee of the whole and as amended on the previous
occasion.
The motion to revive the bills had a suspension of standing
orders built into its terms. Unlike the motion to divide a bill
moved on 18 October 1996 (see Bulletin No. 108, p. 4), however, the
motion was not subject to the special time limits applying to
debate on motions to suspend standing orders. This is because
suspension of standing orders was the primary purpose of the
earlier motion, which was designed simply to allow a senator to
move a motion which could otherwise not be moved at that stage but
which could be moved at another stage of the proceedings on the
bill concerned. The motion to revive and recommit the later bills
was a substantive motion and the suspension of standing orders was
merely incidental to its primary purpose.
The Natural Heritage Trust of Australia Bill also occupied a
great deal of time and was finally passed on 15 May with extensive
amendments. Some government amendments to the bill, relating to the
expenditure of funds under the bill, were rejected.
The Hindmarsh Island Bridge Bill (see Bulletin No. 113, p. 1)
was finally disposed of on 12 May, with the Senate not
insisting on the amendment, relating to inconsistency with the
Racial Discrimination Act, to which the government had disagreed.
It was immediately declared that the bill in the absence of the
amendment would be subject to legal challenge.
ORDERS FOR PRODUCTION OF DOCUMENTS
Documents in response to the order relating to conservation in
East Gippsland (see Bulletin No. 113, p. 3) were produced on 6
May.
In response to an order on 7 May for documents relating to
woodchip exports, a very large volume of documents was produced on
12 May.
WITNESSES
An unusual statement was made by the Chairman of the Foreign
Affairs, Defence and Trade References Committee, Senator Forshaw,
on 15 May. A suspended officer of the Department of Foreign Affairs
and Trade claimed to have vital information relevant to the
committee's inquiry into consular assistance for Australians
abroad. The committee agreed to hear him, but only in camera,
because of an apprehension that he would make adverse comments
about other persons not necessarily relevant to the committee's
inquiry. He refused to appear except in public, the committee then
summoned him to appear and he then could not be located for service
of the summons. The incident illustrates the care taken by Senate
committees to ensure that their public proceedings are not unfairly
used to defame other persons.
COMMITTEES
The Legal and Constitutional Legislation Committee presented on
15 May its report on the Auditor-General Bill, relating principally
to a provision in the bill concerning the presentation of
information by the Auditor-General in reports to the Parliament.
The provision allows the withholding of information where the
Attorney-General certifies that its disclosure would not be in the
public interest. This provision replaced a provision in an earlier
version of the bill which impliedly allowed the withholding of
information from the Houses and which was the subject of much
dispute between the government and the Scrutiny of Bills Committee.
The majority of the Legal and Constitutional Legislation Committee
accepted the provision but it is likely to be the subject of
further debate when it is considered in the Senate.
The following committee reports were presented during the
period:
Date tabled |
Committee |
Title |
6.5 |
Employment, Education and Training References |
Report—Adult and Community Education in
Australia |
" |
Foreign Affairs, Defence and Trade References |
Report—Radio Australia and Australia
Television |
7.5 |
Employment, Education and Training
Legislation |
Additional Information—Additional Estimates
1996-97 |
" |
Foreign Affairs, Defence and Trade
Legislation |
Additional Information—Additional Estimates
1996-97 |
" |
Environment, Recreation, Communications and the
Arts Legislation |
Additional Information—Additional Estimates
1996-97 |
" |
Scrutiny of Bills |
6th Report and Alert Digest No. 6 of 1997 |
14.5 |
Economics Legislation |
Report—Financial Laws Amendment Bill
1996 |
" |
Rural and Regional Affairs and Transport
References |
Report—Australian Rail Industry |
" |
Rural and Regional Affairs and Transport
References |
Report—Value-adding in Agricultural
Production |
15.5 |
Legal and Constitutional Legislation |
Report—Constitutional Convention (Election)
Bill 1997 |
" |
Legal and Constitutional Legislation |
Report—Auditor-General Bill 1996 |
" |
Legal and Constitutional Legislation |
Document—Euthanasia Laws Bill 1996 |
" |
Publications |
9th Report |
" |
Uranium Mining and Milling Select |
Report |
Inquiries: Clerk's
Office
Ph: (02) 6277 3364