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Chapter 16 - Committees
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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