This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Passage History Re-introduction Purpose Background
Contentious Provisions Concluding Comments Endnotes Contact Officer and
Charter of Budget Honesty Bill 1996 [No.2]
Date Introduced: 5 December 1997
House: House of Representatives
Commencement: Royal Assent
Note: For detailed commentary on the Bill as
first presented, readers are referred to Bills Digest No. 85 of
This is the same Bill as that introduced into
the House of Representatives on 11 December 1996 and passed by it
on 10 February 1997.
On 28 October 1997 the Senate passed the Bill
with ten amendments. On 30 October 1997, the House informed the
Senate that it would not agree to the proposed changes. On 10
November 1997, the Senate insisted on its amendments and a message
was reported to the House of Representatives on 17 November 1997.
The House was unmoved and on 19 November 1997 laid the Bill
Section 57 of the Australian Constitution
provides, in part, that:
If the House of Representatives
passes any proposed law, and the Senate rejects or fails to pass
it, or passes it with amendments to which the House of
Representatives will not agree, and if after an interval of three
months the House of Representatives in the same or the next
session, again passes the proposed law with or without any
amendments which have been made, suggested, or agreed to by the
Senate, and the Senate rejects or fails to pass it, or passes it
with amendments to which the House of Representatives will not
agree, the Governor-General may dissolve the Senate and the House
of Representatives simultaneously. But such dissolution shall not
take place within six months before the date of the expiry of the
House of Representatives by effluxion of time.
The clear refusal of the House to accept the
Senate's 10 amendments constitutes a disagreement between the two
Chambers for the purposes of section 57.
Priming a possible trigger for a double
dissolution, the Bill was re-introduced on 5 December 1997 in its
The House did not consider the Bill prior to the
summer recess but it has been scheduled for debate on 3 March 1998.
By then 3 months will have elapsed from the date that the
disagreement arose between the two Houses over the amendments.
If, on or after 3 March 1998, the House passes
the Bill with or without any of the Senate's 10 amendments, the
Senate will have to decide whether to pass the Bill or face the
possibility of a section 57 election to break the deadlock.
In short, the Bill represents a potential
trigger for a double dissolution election.
Charter of Budget Honesty
Economic and Fiscal outlook reports as well
as intergenerational reports
The main purpose of the Charter of Budget
Honesty Bill 1996 (the Bill) is to provide for a Charter of Budget
Honesty (the Charter) to improve fiscal policy outcomes by
providing a framework for the conduct of Government fiscal policy.
It seeks to achieve this objective by requiring the Government's
fiscal strategy to be based on sound fiscal management and provides
for the publication of regular reports setting out such fiscal
strategy. The Bill also provides for the publication of an
intergenerational report, at least once every 5 years, which will
assess the long term sustainability of current Government policies
over the 40 years following the release of the report.
reports and policy costings
The Bill requires the publication of a
pre-election report setting out the fiscal and economic outlook
once a general election is called. The Bill also provides that the
Government, or the Opposition, may request the Secretaries of the
Departments of the Treasury and Finance to prepare a costing of any
of their publicly announced policies once a general election has
been called and for the publication of such costings. The request
from the Opposition must be made through the Prime Minister and is
subject to the agreement of the Prime Minister.
rights and duties not created by the Charter of Budget
The Bill provides that nothing in the Charter of
Budget Honesty creates rights and duties that are enforceable in
judicial or other proceedings. To this extent the Charter of Budget
Honesty is treated in the same manner as parliamentary machinery
provisions which are generally not justiciable. The Charter of
Budget Honesty will for the first time set out in a formal manner
what Parliament and the public could expect of the Government in
managing and reporting on the economy. This will facilitate
informed decisions being made by the public based on the state and
projected progress of the economy. Further, informed judgments
could be made by the electorate on the performance of the
Government and whether the economy could sustain the promises made
by the Government and the Opposition before each Federal election.
However, there is scope for arguing that the Bill has not gone far
enough in creating enforceable rights and duties as in the case of
New Zealand where the Fiscal Responsibility Act 1994 is
binding on the Crown. (1)
Commitment to a Charter
of Budget Honesty
In his first Headland Speech,(2) the then Leader
of the Opposition, spelt out the commitment of a future Coalition
Government to a Charter of Budget Honesty with a view to
'Rebuilding Trust In Government'. The Headland Speech prefaced this
commitment by a reference to what is now called the L-A-W (law) tax
cuts which were not delivered in the form legislated before the
1993 Federal Elections but were subsequently amended to defer an
instalment of these tax cuts with the promise that it would be
delivered in the form of a co-payment for superannuation
contributions. Apart from the commitment to a Charter of Budget
Honesty there were measures promised in the Headland Speech to
enhance the position of the Auditor-General and the role of
Parliament. The independence of the Auditor-General was to be
enhanced by elevating the position to that of an officer of the
Parliament who could act without intimidation by the Executive and
achieve a fearless and authoritative surveillance of government
departments. The independence of the Auditor-General would be
further strengthened by funding from the Appropriation for the
Parliament.(3) The Auditor-General Act 1997, enhances the
independence of the Auditor-General by drawing heavily on the
recommendations in the report of the Joint Committee of Public
Accounts (JCPA) titled Guarding the Independence of the
Auditor-General(4) and its previous reports.(5) The Headland
Speech also promised the appointment of a Commission of Audit to
report on measures to rebuild confidence in the annual accounting
process with the goal of Rebuilding Trust in Government.
The Report of the
National Commission of Audit (NCOA Report)
The National Commission of Audit was established
in March 1996 and reported 3 months later. The key recommendations
of the National Commission of Audit in relation to a Charter of
Budget Honesty(6) were based on the finding that requiring
governments to state objectives and assessing fiscal policy
outcomes against established benchmarks will contribute towards
enhancing fiscal policy transparency and accountability. There was
a clear intention that legislation should make it mandatory for the
Executive Government to comply with fiscal reporting standards.
There seem to be few disadvantages
associated with adopting comprehensive fiscal reporting standards,
even if the need to comply with such standards is enshrined in
legislation. Indeed, because compliance with such standards is
likely to enhance a government's ability to govern, compliance
should be legislated for so that it cannot be ignored by
The NCOA Report appropriately drew a distinction
between fiscal reporting in the sense of financial reporting and
reporting which is concerned with the internal management of
Commonwealth agencies, and fiscal reporting which is concerned with
the macroeconomic effects of government fiscal actions. Fiscal
responsibility legislation in the form of a Charter of Budget
Honesty would deal with the latter. It further pointed out that
fiscal responsibility legislation could set specific fiscal targets
or establish certain reporting standards or involve some
combination of both approaches. In Recommendation 11.2 the NCOA
opted for the setting of clear fiscal strategy, which would require
the Government of the day to set its own specific targets but not
identify such targets in legislation, in the interest of fiscal
policy flexibility required by a National Government.
Loss of fiscal policy flexibility,
which is the main disadvantage of setting a medium term fiscal
target, can be overcome to a large extent by not identifying the
target in legislation and by giving governments room to manoeuvre
should economic circumstances change.
For these reasons, the Commission
favours legislation to require governments to state clearly their
fiscal strategy. This would include the setting of specific
targets, but not legislating such targets. The Commission also
supports legislation to require governments to report on progress
in achieving their stated fiscal strategy.
Setting of and reporting on fiscal strategy
Governments should be required to set and report
against a clear fiscal strategy, which would include the setting of
The NCOA expressed concerns that unless fiscal
reporting requirements were legislated governments may ignore
The Budget Speech of 20
The background to the introduction of the Bill
was summarised by the Treasurer in his 1996 Budget Speech in the
Before its election defeat on 2
March, the previous Government maintained that the budget would now
be in underlying balance. The truth was nearly $10 Billion to the
Financial dishonesty of that
magnitude undermines public confidence in our political system. We
will ensure it never occurs again.
Our Government will enact a Charter
of Budget Honesty that will require the government of the day -
ours or any other - to publish a budget update signed off by the
Secretaries to the Treasury and the Department of Finance at the
commencement of each Federal Election campaign. The public will be
given updated financial information before the election, not after
it. The public will know the state of the books before they
The Charter will require any future
government to set out its fiscal strategy and report against it -
just as this Government is doing.
The Charter will entrench this
Government's commitment to responsible and accountable fiscal
The 1996-97 Budget Papers stated that the
Government would introduce legislation in the Budget Sittings to
establish a new fiscal framework to implement the Government's
Charter of Budget Honesty election commitment. The Government also
indicated that the proposed legislation would incorporate many of
the recommendations of the National Commission of Audit.(10)
Report by the Joint
Committee of Public Accounts on Fiscal Responsibility
Discussion of the immediate background to the
Bill is not complete without a reference to the report of the Joint
Committee of Public Accounts (JCPA) on Financial Reporting for
the Commonwealth: Towards Greater Transparency and
Accountability which was issued in November 1995.(11) The JCPA
examined whether it was necessary or appropriate to legislate for
fiscal responsibility at the Commonwealth level, with particular
reference to the success of attempts to legislate for fiscal
responsibility in other jurisdictions. It also examined the
relevance to the Commonwealth of the type of public reporting
provisions contained in fiscal responsibility legislation in other
The JCPA did not support fiscal responsibility
legislation for the Commonwealth which attempts to define 'prudent'
fiscal behaviour or which requires governments to adopt fiscal
strategies in conformity with pre-determined fiscal targets or
principles.(12) Nevertheless, the JCPA considered that there was a
strong case for specifying in any fiscal reporting legislation the
key indicators against which governments must report and against
which the performance of government is best assessed.(13)
The JCPA did, however, conclude that there is a
compelling case for fiscal reporting legislation, as it provides a
framework for governments to be accountable to the public for their
management of the nation's finances. It envisaged that fiscal
reporting legislation would be the vehicle in which parliament sets
down the form, content and frequency of reporting that it considers
Recommendations 12 to 20 of the JCPA dealt with
the framework, form, content, periodicity of reports and provision
for parliamentary scrutiny of fiscal reports.(14) A notable
observation of the JCPA was that during the period of its
examination of these issues in 1995, very few people or
organisations in Australia had turned their minds to fiscal
reporting. It therefore recommended that the Bill introducing
measures for fiscal reporting should be referred to the JCPA prior
to debate in the House of Representatives, for inquiry and
A recommendation of the Committee which might
ensure that governments comply with the fiscal reporting measures
which the Bill proposes is that it should provide for establishing
a joint committee of Parliament to examine and report on fiscal
reports produced pursuant to the legislation. It further
recommended that all fiscal reports should stand referred to the
proposed committee for inquiry and report, with specific provision
for the proposed committee to call relevant Ministers of State to
give evidence(16). This measure may give the public a forum to
express its views on a government's fiscal performance, as the Bill
does not create rights and duties enforceable in judicial or other
proceedings. Such a measure may also enhance the credibility of the
fiscal reporting measures in the Charter of Budget Honesty.
However, this forum may be of no avail to the public in relation to
non compliance with the pre-election economic and fiscal outlook
reports and costing of election commitments, as there are doubts as
to whether a Joint Committee of Parliament comprised of Senators
and Members can meet during the caretaker period after a
dissolution of the House of Representatives. Even were such a
meeting to be convened, there would be further concerns as to
whether the committee can while so meeting enjoy the powers,
privileges and protections normally available.(17) In relation to
the pre-election reports and costings, there may be a role for an
independent Auditor-General to certify the reports prepared by the
Secretary to the Treasury and the Secretary to the Department of
Finance, in the absence of effective parliamentary scrutiny in the
Joint Committee of Public Accounts
Advisory Report on the Charter of Budget Honesty Bill 1996
After the Bill was passed by the House of
Representatives on 3 March 1997, the Senate referred it to the JCPA
for further consideration.
The JCPA reported in March 1997 and generally
supported the Bill.(18)
The JCPA declined to make specific
recommendations but suggested a number of refinements which it
argued would '1/4 enhance the Bill and augment the Government's
objective of greater fiscal honesty, transparency and
Amongst the suggestions and observations made by
the JCPA were :
- as clauses 12(3)(b), 16(30)(b), 19(2)(b) and
24(3)(b) of the Bill allow for variations from standard
reporting requirements, that there be an obligation to give reasons
for such departures(20)
- as some Charter reports are prospective in nature (economic and
fiscal outlook reports and intergenerational reports), that the
Public Sector Accounting Standards Board develop new benchmarks for
- that information on underlying parameters and assumptions of
fiscal forecasts and strategies be included in public reports
required by the Charter(22)
- that the reports produced would probably have only a limited
impact on limiting deficit spending(23)
- that pre-election economic and fiscal outlook reports be
available for release sooner, ie within 10 days of the calling of a
general election, not 10 days within the issuing of the election
- (Opposition members canvassed the possibility) that the
requirement that pre-election economic and fiscal outlook reports
be signed by Ministers and responsible Departmental Secretaries be
extended to all other economic and fiscal reports(25)
- questioned the capacity of the Prime Minister to act as
'gatekeeper' in relation to Opposition requests for costing of
Opposition election commitments during the caretaker period
- that where information is suppressed for commercial
in-confidence or similar reasons, a statement providing a general
description of the information being suppressed be
- as clauses 13, 17 28 and 32 enable
Commonwealth agencies to withhold information, the Bill might
provide that a statement be issued where information is withheld
showing the effect of this omission(28)
- that the Bill include provision for review of the Charter and
ongoing reports on its operation.
A total of 26 committee stage amendments to the
Bill were moved in the Senate. Of these, 7 Opposition amendments
and 3 Australian Democrat amendments were incorporated in the Bill
as passed by the Senate on 28 October 1997.
All 10 amendments were rejected by the House of
Representatives on 30 October 1997.(29)
A general survey of the main provisions of
the Bill as introduced appears in Bills Digest No. 85 of
The following summarises the 10 Senate
amendments and the Government's reasons for rejecting them.
The Senate proposed that paragraph
5(1)(b) be amended to expand the list of objectives of
fiscal policy to include:
- the achievement of full employment
- the overall prosperity and welfare of the Australian
- the maintenance or improvement of real wages and conditions and
welfare of workers.
The Government's response is that this amendment
is unnecessary as the matters raised by the Senate are already
dealt with in clause 4.(30)
The Senate proposed that clause
12 be amended to include in the proposed budget economic
and fiscal outlook report, a report prepared by the Commissioner of
Taxation and the Secretary to the Treasury detailing 'any material
threats to the integrity of the tax system 1/4 '. This report would
assess the fiscal impact of these threats and identify the means to
The Government argues that this requirement
would unnecessarily add to the length and complexity of the outlook
statement. The Government also argues that the amendment would
identify weaknesses and loopholes in the tax system before they
could be remedied, ie the statement would itself constitute a
threat to the integrity of the tax system.(31)
The Senate proposes that clause
20 be amended to provide that intergenerational reports be
provided within 3 years of the Act commencing and every 3 years
thereafter. The Bill presently provides that such reports be
prepared every 5 years.
The Government argues that this amendment is
unnecessary and that such reports are about longer term trends
which do not require more frequent reporting than every 5 years. It
also argues reports can be provided more frequently than every 5
years under the Bill as introduced.(32)
The Senate amendment proposes two changes to
clause 22. The first requires the responsible
Departmental Secretaries to release a joint pre-election economic
and fiscal outlook report two years and nine months after the first
sitting day of the House of Representatives following the previous
election. The second states that if an election is called before
two years and nine months of the parliamentary term having elapsed,
the pre-election report must be issued 5 days before the issuing of
the writs for the general election.
The Government argues that the former proposal
would result, in some instances, in out of date information
appearing in the pre-election report. The second proposed change is
seen as impractical, with the government arguing that it will take
a minimum of 10 days to produce pre-election outlook
The Senate proposes that clause
27 be amended to limit the involvement of Ministers in the
preparation of pre-election economic and fiscal outlook
The Government argues that this provision is
unnecessary as the integrity of such reports is protected by the
requirement that the Secretaries of Finance and Treasury must sign
off on the report stating that it reflects the best professional
judgment of the officers of their department.(34)
Amendments 6, 7, 8 and 9
These amendments relate to clause
29 dealing with requests for the costing of election
The Senate proposes:
- widening the proposed Prime Ministerial discretion to request
the responsible Departmental Secretaries to prepare costings of
Government policies to include unannounced as well as announced
policies (amendment 6)
- allowing the Leader of the Opposition to request the
responsible Departmental Secretaries to prepare costings of all
Opposition policies, including those not publicly announced
The Government's response is that this proposal
has the potential to increase enormously the workload of the
Departments in preparing costing reports as requests could be made
to assess a myriad of policy alternatives and options. Such a
process would also place the Departments in the position of
advising Oppositions on the development of policy. This, it is
argued, would be inconsistent with the usual conventions of
The Senate further proposes that:
- the Prime Minister must agree to a request from the Opposition
Leader for Opposition policies to be costed; and
- the Bill make it plain that nothing in clause
29 requires the Leader of the Opposition to disclose to
the Prime Minister the details of an Opposition policy. (amendment
Government statements to date have not squarely
addressed these two issues, other than to suggest that the
proposals would lead to a lack of transparency in the costing
The Senate's ninth amendment provides:
- a mechanism for Departmental Secretaries to decline to prepare
costings of Opposition policies where they consider that the
request relates to the provision of policy advice; and
- for information provided by the Opposition to the responsible
Departmental Secretaries not to be released to third parties
without the approval of the Leader of the Opposition.
The Government appears to believe that these
(and the related) amendments will result in a loss of transparency
in the costing process. Removing the Prime Minister's discretion to
refuse an Opposition Leader's request for the costing of Opposition
policies is seen as contrary to existing conventions of
The Senate would amend clause
30 to make it clear that policy costings must show what
assumptions have been used in the costings process and must also
explain the limitations of the process adopted and assumptions
The Government sees such an amendment as
unnecessary as costing guidelines issued by the Secretaries to the
Departments of Treasury and Finance [subclause
31(1)] would deal adequately with such processes.(37)
Note: Extensive general comment was made on
the Bill as introduced in Bills Digest No.85 of 1996-97 and is not
This Digest has made reference to the
possibility of the Bill triggering a double dissolution election.
It is, however, only one of a number of possible triggers and its
importance should not be overstated.
Were this Bill to be the sole basis for the
Prime Minister approaching the Governor-General to dissolve both
the House of Representatives and the Senate for a simultaneous
election, a number of interesting constitutional issues would
arise. These would revolve around the Governor-General's discretion
(reserve power) to refuse a Prime Ministerial request for a double
dissolution. This is an area of continuing disagreement and
Four important and related issues are:
- What is the scope of the Governor-General's discretion to
refuse the Prime Minister a section 57 election;
- In what circumstances might such a discretion be
- May the Governor-General seek non-Prime Ministerial advice on
the granting of a double dissolution;
- Who may the Governor-General approach for advice and under what
Against this somewhat uncertain background, it
may be noted that there is no suggestion that the Governor-General
has an open-ended discretion to act entirely without reference to
ministerial advice. It may also be recalled that no
Governor-General has rejected a request from an elected Prime
Minister for a section 57 election.
The simple (and probably the better) view is
that the Governor-General has a discretion to reject a request for
a section 57 election but should only exercise that discretion in
limited or extraordinary circumstances. 'Extraordinary
circumstances' on this view may arise in those instances where
request is manifestly at odds with the requirements of section
A slightly different, but not entirely
inconsistent, view is that the Governor-General's discretion is
wide enough to allow him to refuse a Prime Ministerial request in
circumstances where Parliament has not become 'unworkable'. The
existence of such a discretion, to refuse a dissolution where the
Governor-General believes that government is not 'unworkable', is
supported by the custom of providing the Governor-General with
advice on the workability of Parliament when requesting a
dissolution. Whether this custom is any more than just that, a
custom, is another matter. However, the exchanges between Prime
Minister Fraser and Governor-General Stephen prior to the granting
of the 1983 dissolution suggest that the workability of Parliament
is a factor that can and must be considered by the Governor-General
in responding to a request for a dissolution.
Prior to granting the 1914 double dissolution,
the then Governor-General, with approval of his Prime Minister,
approached the Chief Justice of the High Court of Australia on his
powers under section 57. Griffith CJ advised that the
Governor-General was an 'independent arbiter' who should dissolve
both Houses only where he is:
1/4 personally satisfied, after
independent consideration of the case, either that the proposed law
as to which the houses have differed in opinion is one of such
public importance that it should be referred to the electors of the
Commonwealth for immediate decision by means of a complete renewal
of both houses, or that there exists such a state of practical
deadlock in legislation as can only be ended in that way.(38)
In 1914, however, the Senate having twice
rejected a relatively minor Bill making amendments to public
service employment conditions,(39) the Governor-General acceded to
a request by Prime Minister Joseph Cook for both Houses to be
dissolved. This appears to have established the principle that
disagreement over any Bill, not just an appropriation Bill or other
significant piece of legislation, can constitute the basis for a
deadlock under section 57. The 1914 'precedent' does not, however,
put beyond doubt the issue of how Governors-General will exercise
their judgment in deciding whether a proposed law 'is one of such
importance that it should be referred to the electors for immediate
decision by means of a complete renewal of both houses 1/4 '.
The Charter of Budget Honesty Bill could provide
a particularly interesting test of some of the arguments recited
Arguably the legislation is in most respects
is to be achieved under the Bill can be achieved administratively
for the life of the present Parliament, ie within existing
executive discretions. Not even regulations are required to allow
the government to provide the electorate with the sort of
information that the Bill seeks to guarantee. Hence, it may be
argued that the Bill, of itself, is a relatively poor indicator of
the Government's capacity to govern and the workability of the
Parliament. As a test of the Government's capacity to maintain
parliamentary support or compliance, the defeat of the Charter of
Budget Honesty Bill would not self-evidently present itself as 'as
a 'failure to pass a legislative proposal vital to the execution of
a major policy of the Ministry'.(40)
Even if one accepts that the legislation is
important because it ensures that future governments must also
provide the same information that the present Government has
committed itself to making available now, the Governor-General may
have some concerns about granting a dissolution of both House on
the strength of this Bill alone. If Griffith CJ's view still holds,
in exercising his 'independent discretion', the Governor-General
must turn his mind to whether the fate of this Bill presents a
sufficiently compelling reason for 'seeking the complete renewal of
- New Zealand Statutes (1994), Vol 1; 177.
- The Role of Government : A Modern Liberal Approach, 6
June 1995, 5 and 6; The Menzies Research Centre - The 1995
National Lecture Series.
- Ibid., 23.
- Report 346 of the Joint Committee of Public Accounts (JCPA)
Guarding the Independence of the Auditor-General
(October 1996) (AGPS).
- JCPA Reports 296 and 331.
- National Commission of Audit - Report to the Commonwealth
Government, June 1996, AGPS; 273 to 300.
- Ibid., 277.
- Op cit., 279.
- Budget Speech 1996-97, 3.
- Budget Statements 1996-97; Budget Paper No. 1; 1-15
and 1-26 to 1-28.
- Report 341 of the Joint Committee of Public Accounts (November
1995); Financial Reporting for the Commonwealth: Towards
Greater Transparency and Accountability.
- Ibid., para. 3.252; 126.
- Ibid., para. 3.263; 129.
- Ibid., paras. 3.306 to 3.314; 136 to 141.
- Ibid., Recommendation 19; para. 3.313; 141.
- Ibid., Recommendation 18; para. 3.312;. 140.
- Odgers' Australian Senate Practice ,7th edition; 52
and 522. House of Representatives Practice, 2nd Edition;
- JCPA, Report No.351, March 1997.
- Ibid., 3.
- Ibid., 8.
- Ibid., 8.
- Ibid., 10.
- Ibid., 12.
- Ibid., 15-16.
- Ibid., 16.
- Ibid., 17.
- Ibid., 18.
- Ibid., 19.
- Parliamentary Debates, 30 October 1997,
- Ibid., 10307 and 10317.
- Ibid., 10307 and 10317-18.
- Ibid., 10307-08 and 10318.
- Ibid., 10308 and 10318.
- Ibid., 10308 and 10318.
- Ibid., 10308 and 10318.
- Ibid., 10308 and 10318.
- Ibid., 10308-09 and 10318-19.
- Cited in Odgers' Australian Senate Practice,
8th edition, 1997, 82.
- Government Preference Prohibition Bill.
- A phrase borrowed from another context but rather apposite
here. Refer to Sir Garfield Barwick, A Radical Tory, 1995,
Bob Bennett and Bernard Pulle
3 March 1998
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