Preface
At the end of
the preface to the eleventh edition of this work, it was noted that the then
government had gained a party majority of one in the Senate in the 2007 general
elections, and the possible effect of this on the performance by the Senate of
its essential task of holding the executive government accountable was
mentioned. A detailed study of Senate activity during the period between that
majority taking effect and the following general election concluded,
unsurprisingly, that the accountability function was diminished. It is almost a
law of nature that executives will seek to avoid accountability, and that
independent legislatures are needed to impose it. The structures and measures
built up by the Senate over many years to achieve accountability, however,
remained in place during that time. The party majority was lost in the general
elections of 2007, and the Senate returned to what is now regarded as the
normal situation of no party holding a majority. It is to be hoped that this
situation will support the Senate’s accountability role. This work, as with
previous editions, seeks to perform the task of recording the Senate’s
accountability and other activities in the past as a guide to the future.
The period since
the last edition saw several significant changes and precedents in the
operations of the Senate.
The structure of
the committee system, which is the mainstay of the Senate’s accountability
operations, was changed to revert to the pre-1994 structure of eight standing
committees. This was not necessarily a negative development; as the history
before 1994 indicates, the old structure was perfectly capable of serving the
functions of the institution and of supporting the parliamentary activities of
senators. Only six months after the change of government, however, more select
committees had been appointed; the proliferation of select committees under the
old system was one of the reasons for the 1994 change: it was intended to
encourage more use of the standing committees for particular inquiries. History
may be repeating itself.
The standing
committees were employed, often to their full capacity, and set several
precedents in their scrutiny of estimates and bills and inquiries into matters
referred to them by the Senate. Innovative methods of referring bills were
adopted to allow committees to begin their examinations as early as possible in
the legislative process. As a result the amendment of bills in consequence of
Senate committee scrutiny has sometimes occurred before the bills were actually
received by the Senate.
There were some
significant precedents and lower court judgments vindicating that immunity of
the Senate and its committees known as parliamentary privilege, which supports
the freedom of parliamentary debate and inquiry. The Committee of Privileges
presented several significant reports, including one on mistaken court
judgments in other jurisdictions about references to parliamentary proceedings
outside the protected parliamentary sphere.
The problem of
the execution of search warrants in the premises of senators was settled by
agreement between the President and the government on a set of procedures to
govern that process. A judgment of a United
States court upheld the
view of the law taken by the Senate on which that agreement was based.
Parliamentary
scrutiny and control of public finance was in issue in several contexts. Senate
committees grappled with a new system of appropriations which undermined the
long-standing agreement between the Senate and government about the content of
appropriation bills and the ordinary annual services of the government. This
matter had not been resolved at the time of writing, but those committees and
the Senate itself have clearly indicated that it should be resolved in favour
of the past arrangements which best suited parliamentary scrutiny. A
significant High Court judgment on the legality of government expenditures
clearly signalled to the Parliament that it must exercise the responsibility to
ensure that public funds are appropriated in such a manner as to avoid improper
or unexpected expenditure. The Finance and Public Administration Committee presented
a significant report on transparency and accountability of Commonwealth public
funding and expenditure, and the implementation of its recommendations would
greatly improve parliamentary control of expenditure. The need for reform in
this area was supported by several reports by the Australian National Audit
Office detecting serious problems in the management of public expenditure.
One of the most
venerable statutes of the Australian Parliament, the Acts Interpretation Act
1901, in so far as it related to parliamentary scrutiny and control of
delegated legislation, was replaced by the Legislative Instruments Act 2003
which came into operation in 2005 and which codified the law on the subject and
greatly extended the scope of parliamentary control, while creating some
further yet-to-be-resolved uncertainties.
There were
procedural innovations. The procedure whereby a senator may raise a debate in
the chamber on any delay in answering questions on notice was extended to
estimates questions on notice and orders for the production of documents. This
change expanded a very significant accountability mechanism which may be
wielded by any senator.
There continued
to be problems with claims by government to be immune from producing documents
to the Senate and its committees, or rather non-claims, as in some instances
the obligation on government to raise a public interest ground for not
producing information appeared to be forgotten. The old misconception that
general statutory secrecy provisions impinge on parliamentary inquiries briefly
reappeared. Senate precedents and resolutions should by now have provided
utmost clarity to these matters. The question of whether the government may be
required to produce advice provided to government should now have been settled
by proceedings in estimates hearings in 2008.
This edition
appears when the country is entering upon an era of life-and-death policy
issues and extremely difficult decisions. As always, there are demands for
power to be concentrated in the hands of the central executive government,
supposedly to allow it to solve the problems that must be confronted. As
always, such demands are misconceived. In this era, scrutiny and accountability
of government will be more vital than ever. The greater the policy issues and
the more difficult the decisions, the more likely it is that mistakes will be
made, and parliamentary scrutiny and control is essential to disclose and remedy
those mistakes. Government itself is weakened by lack of accountability. The
Senate and its processes provide a large part of the scrutiny that will be
required. The means by which it may do so are here recorded.
Acknowledgements
As always, senators are the first to merit acknowledgement
for their efforts in enhancing the Senate’s role. The procedure for requiring
explanation of unanswered estimates questions on notice and orders for
documents, for example, was adopted because it was pursued by an individual
senator seeking to find a solution to an accountability problem. Virtually all
Senate staff make some contribution to this book, but those especially worthy
of mention are Rosemary Laing, Andrea Griffiths, Cleaver Elliott, Richard Pye and Maureen Weeks. Thanks to Kay Walsh and Lynnette
Eager for production.
Harry Evans
July 2008
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