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No. 186 for the sitting period 16—18 November 2004
19 November 2004
Accountability report
Since it was first issued at the
beginning of 1985, this Bulletin has provided Senate staff with ready access to
significant procedural developments in the Senate. As others became aware of it
and it was provided on request to people outside the department, it gained a
wider circulation and readership. This influenced to a certain extent its
content, as material was added which would be known to Senate staff but which
required some explanation for others.
In serving its informing and
explaining function, the Bulletin has necessarily, if often by implication
only, operated as a barometer of the accountability of the executive government
to the Senate. Achievements in accountability (such as the Senate’s order for
the listing of government contracts and reporting by the Auditor-General on the
lists) and failures of accountability measures (such as the order for
disclosure of government advertising contracts) have been faithfully recorded.
The Bulletin will now make explicit
its regular reporting on accountability. Each issue will conclude with a
section entitled Accountability Report, which will summarise advances and
retreats in accountability. All developments significantly affecting
accountability will be mentioned.
It is hoped that the Bulletin will
continue to be read with interest by all those recipients who value the
processes of the Senate.
Opening of “a parliament”
The opening of the “41st
Parliament” following the general election was widely reported as such. But why
is it referred to as a new Parliament, and why is there an opening?
The concept of a new Parliament
appears to be one of those unthinking adoptions of British practice. It has no
constitutional basis; the Constitution simply refers to the Parliament as an
institution and does not reflect the concept of separate or new Parliaments.
The British usage no doubt is based on the fact that when a House of Commons is
dissolved and the Lords discharged the Parliament ceases to exist. (For
government proclamations in Australia purporting to discharge senators from
attendance, see Odgers, 10th ed, pp 177,
515.) This has no application in Australia. On one view, we are now in the 7th Parliament,
because there have been six simultaneous dissolutions of both Houses under
section 57 of the Constitution, and they are the only occasions on which the
Australian Parliament could be said to cease to exist.
The
British do not refer to Parliaments by number, as there would be endless
dispute about which was the first and how many there have been; whether, for
example, those of the revolutionary periods of 1642-1660 and 1688-1689 should
be counted.
The
usage of referring to Parliaments by number seems to have been influenced by
the American practice of referring, for example, to the “108th
Congress”, a new Congress being taken to begin when the House of
Representatives is re-elected. That practice, however, is even more irrational
there, because both Houses of the Congress are continuing bodies and never
cease to exist; the elected or re-elected House members take office immediately
after the terms of their predecessors cease.
Also
quite irrational are the rules about what parliamentary business survives from
one Parliament to another and from one session to another. Bills lapse,
resolutions cease to have effect unless they are continued by their terms, but
standing orders go on forever until altered. The US House of Representatives
goes through the ritual of renewing its equivalent of standing orders with each
new Congress, whereas we, with perhaps more basis for speaking of a new
Parliament, do not. There is no rationality in any of this.
The
usage is so entrenched, however, that there is also no point in attempting to
change it.
In
relation to the opening of Parliament, the opening ceremony also has no
constitutional basis; the only relevant constitutional provision is in section
5, allowing the Governor-General to appoint the time for the Houses to assemble
after a prorogation. The opening ceremony is an adaptation, with many curious
variations, of British and old colonial practice. It is actually inconsistent
with the Constitution, principally in four respects:
- The
appointment of justices of the High Court as deputies of the Governor-General
is contrary to the separation of legislative, executive and judicial
functions entrenched in the Constitution, and a violation of the principle
that judicial officers exercise only judicial functions.
- The
Governor-General’s opening speech, which sets out the government’s
program, involves the Governor-General, who is otherwise supposed to be a
politically neutral head of state, in speaking as if he or she were the
actual head of government and in making contentious and partisan political
statements.
- The
Governor-General purports to direct the two Houses as to where they are to
meet, which is not authorised by the Constitution.
- The
Governor-General attends in the Senate chamber and summons the House of
Representatives to attend there, as if the Governor-General had some
particular relationship with the Senate as distinct from the House of
Representatives, analogous to the relationship between the monarch and the
House of Lords. There is no such relationship under the Australian
Constitution, which provides for two elected Houses as co-equal
participants in the legislative process.
The ceremony continues, however,
apparently because the current government likes the “tradition”. The government
parties having gained a majority (of one) in the Senate for the first time
since 1981, taking effect when the Senate places change hands on 1 July 2005,
the chances of changing the ceremony appear to be slim.
Committee
reports
Numerous committee reports,
presented to the President during the general election adjournment, were tabled
on the first day. Many were interim reports but some were final, including
reports on bills which may or may not be revived or reintroduced in the coming
sittings. The Legal and Constitutional References Committee reported on the
Road to a Republic; the Rural and Regional Affairs and Transport References
Committee reported on forest plantations and the Community Affairs Legislation
Committee on tobacco advertising prohibition. (See also below, under Lindeberg
Committee.)
Lindeberg
committee
The Select Committee on the
Lindeberg Grievance presented its final report when the Senate was not sitting,
and the report was tabled on the first day. The committee found no evidence
that earlier Senate committees which became involved in the Heiner documents
matter, including the Privileges Committee, had been deliberately misled as
alleged by Mr Kevin Lindeberg. The committee repeated the finding by earlier
committees that other matters raised by Mr
Lindeberg could be resolved only within the Queensland
state political and legal system.
The report included advices
provided to the committee on seeking evidence from state authorities, the
publication of committee documents, and the necessary elements of the contempt
of giving misleading evidence.
When debating the report the
following day (in the matters of public interest discussion), Senator
Harris disclosed a document which had been
received by the committee and not published, including the name of the person
who had submitted the document. On the following day he made a statement to the
effect that he had inadvertently disclosed the unpublished document, and he
unreservedly apologised for this action. This apology seems to have forestalled
a matter of privilege being raised on the unauthorised disclosure.
Committees
and committee references renewed
The Select Committee on the
Administration of Indigenous Affairs was re-established on 17 November,
and the Select Committee on the Scrafton Evidence on the following day. It is
expected that the latter will not hold any more hearings on the matter referred
to it (what the Prime Minister knew about the “children overboard” incident and
when he knew it), but will only present its final report.
The Finance and Public
Administration References Committee had its reference on government advertising
renewed on 18 November. This is one of the references which the government
opposes and which could be withdrawn, if the inquiry is not completed, when the
government party majority takes effect in the Senate after 1 July next year.
The Employment, Workplace Relations
and Education Legislation Committee received a reference on a bill in advance
of the appointment of members of the committees, including the Selection of
Bills Committee. This was done so that the committee could consider the bill
before the Senate next meets.
In the event, senators were
appointed to committees on 18 November, including all of the standing
committees and the two select committees.
Estimates
hearings
A prorogation ahead of a general
election is regarded as setting aside a Senate order directing standing
committees to hold estimates committees, although the committees are
theoretically free to do so if they choose (see Odgers, 10th ed, p. 176).
This was the case with the order requiring supplementary estimates hearings to
be held this month. It is open to the Senate, however, to reinstate the order
when the Senate next meets.
Two notices of motion were given by
Senator Harradine, the first
to direct that supplementary estimates hearings take place on the evenings of
some of the scheduled sitting days during the remainder of this year’s
sittings. This apparently did not meet with sufficient support, so he gave
notice of another motion, which was passed on 18 November, to the effect that
questions placed on notice in the last round of estimates hearings must be
answered by 31 January 2005, and that senators may place additional
questions on notice up to 2 December 2004, which must also be answered by
31 January. This gives senators the capacity to ask questions of departments
and agencies without further hearings.
Days of meeting
By a
resolution of 17 November, the days of meeting for the remainder of 2004 and
the whole of 2005, including days of estimates hearings, were set. The motion
to do so was the subject of debate, in which the government was accused of
already seeking to take advantage of its forthcoming party majority in the
Senate by shortening the sitting times before July. Senator Ian
Campbell, the outgoing Manager of Government
Business, however, blamed the shortened sittings on the moon, which dictates
the occurrence of Easter.
Senate
publications
The second volume of the historical
document setting out the business transacted by the Senate up to 1910, in the
format in which the publication Business
of the Senate now appears, was tabled on 18 November, covering the period
1906-1910. This document demonstrates that the Senate in its first decade
functioned in a manner very similar to its operations in recent years.
The consolidated register of Senate
committee reports updated to 2004 was tabled on 18 November.
The 11th edition of Odgers, also updated to 2004, is at the
printers and will appear soon.
Accountability
report
Accountability advances during the
period included:
- the provision for senators to lodge further estimates
questions on notice
- the reconstitution of the select committees and the
references made to other committees.
There were no accountability losses
during the period, unless the reinstatement of the estimates hearings could be
said to be preferable to questions on notice.
Senate Daily Summary
The Senate
Daily Summary provides more detailed information on Senate proceedings,
including progress of legislation, committee reports and other documents tabled
and major actions by the Senate. Like this bulletin, Senate Daily Summary may be reached through the Senate home page at
www.aph.gov.au/senate
Inquiries: Clerk's
Office
(02) 6277 3364
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