p. 10

last paragraph

The Liberal/National Party government secured a majority of one in the Senate in the 2004 general election, taking effect on 1 July 2005 . Ministerial control over the chamber and lack of accountability engendered by that majority was attributed with that government’s defeat in the 2007 general election. The majority gained in 2005 will persist until the state Senate places turn over on 1 July 2008 , after which the situation of no party having a majority will recur.

TABLE 1: VOTES AND SEATS IN ELECTIONS, 1949-2007

TABLE 2: PARTY AFFILIATIONS IN THE SENATE, 1901-2007

2007 Labor 32 Independent 2(k) Liberal 32 National Party 5 Greens 5

p. 44

last paragraph, end

also Erglis v Buckley, 2004 2 QD R 599

after paragraph 1

In August 2006 the Legislative Assembly of Victoria, adopting the report of its Privileges Committee, resolved that a particular communication of information to a member by a constituent was a proceeding in Parliament, and that a contempt was committed by a firm of solicitors threatening legal action against the constituent. The offenders apologised. (Votes and Proceedings of the Assembly, 23/8/2006, pp 2-4.)

paragraph 5, end

Similarly, in Australian Communications Authority v Bedford, the Federal Magistrates Court held that briefs prepared for Senate estimates hearings are immune from production in a criminal matter (28/3/2006, not reported). In CPSU v the Commonwealth a claim by the Commonwealth that a document prepared for Senate estimates hearings should not have been admitted into evidence in the Federal Court was not contested, and orders were made by consent to strike out references to the document in the evidence ( 11/7/2007 , not reported). In Niyonsaba v the Commonwealth the Commonwealth claimed immunity from production in the Federal Court for briefing notes for Senate question time and estimates hearings, and this claim was not contested (2007, not reported).

after paragraph 5

For a claim by the Auditor-General, uncontested, that draft Audit Office reports, prepared for the purpose of presentation to Parliament, are immune from discovery because of parliamentary privilege, see tabled letters from the Audit Office and the Clerk of the Senate, 12/11/2002, J.1026; 14/6/2005, J.656.

p. 47

after paragraph 1

A memorandum of understanding and Australian Federal Police Guidelines agreed to by the President, the Speaker, the Attorney-General and the Minister for Justice and Customs, governing the execution of search warrants in the premises of senators and members, were tabled and debated in March 2005. The documents provide that any executions of search warrants in the premises of senators and members are to be carried out in such a way as to allow claims to be made that documents are immune from seizure by virtue of parliamentary privilege and to allow such claims to be determined by the House concerned. The agreement underlying these documents was the result of several years of effort by the Senate, successive Presidents and the Privileges Committee, arising from the committee’s consideration of the cases referred to above. ( 9/3/2005, J.451, SD, pp 91-2.) An agreement of the same kind was entered into with the Tasmanian government in 2006 ( 15/8/2006, J.2496).

The US Court of Appeals ordered a similar arrangement for resolving claims of legislative immunity in a case involving documents seized in the office of a member of the House of Representatives under search warrant (US v Rayburn House Office Building, Room 2113 [Jefferson case], 28/7/2006, not reported).

p. 47

after paragraph 4

The New South Wales Legislative Council has asserted the immunity (Standing Committee on Parliamentary Privilege and Ethics, Report No. 28, 2004; Minutes of Proceedings, 4/12/2003, pp 493-5, 501; 24/2/2004, pp 520-1).

after paragraph 1

For the unlawful admission in evidence before a court of evidence given before a parliamentary committee, leading to the setting aside of an initial judgment, see Commonwealth and Chief of Air Force v Vance 2005 ACTCA 35 (23/8/2005).

p. 48

paragraph 3

(US v Traficant: Supreme Court declined to hear appeal, 10/1/2005)

after paragraph 2

In estimates hearings in 2006 and 2007 officers of the Department of Employment and Workplace Relations attempted to suggest that a provision in the Public Service Act requiring officers to maintain confidentiality could be breached by the giving of evidence, but this position was rejected by the committee (Reports of the Employment, Workplace Relations and Education Legislation Committee, Budget Estimates 2006-07, p. 3 and Appendix A, PP 144/2006; Additional Estimates 2006-07, pp 14-15, PP 64/2007).

p. 54

after paragraph 1

For a claim by the Auditor-General, uncontested, that draft Audit Office reports, prepared for the purpose of presentation to Parliament, are immune from discovery because of parliamentary privilege, see tabled letters from the Audit Office and the Clerk of the Senate, 12/11/2002, J.1026; 14/6/2005, J.656.

p. 61

paragraph 6

(It is now also a criminal offence to give false evidence to Congress.)

p. 66

paragraph 2, end

; report by Telstra, 7/3/2005, J.398

p. 66

paragraph 4

(US v Traficant: Supreme Court declined to hear appeal, 10/1/2005)

paragraph 2, end

In April 2006 the New Zealand House of Representatives imposed a substantial fine on a television company for the contempt of penalising a witness.

paragraph 2, end

Similarly, foreigners are not precluded from exercising the right of reply (132 nd report of the committee, PP 173/2007, adopted by the Senate 17/9/2007 , J.4389).

p. 76

after last paragraph

See also above, under Subpoenas, search warrants and members, for the execution of search warrants in the premises of senators.

paragraph 4, end

Subject to that requirement, senators are entitled to have whomever they choose as their advisers in their advisers’ benches (SD, 2/12/2005, p. 10).

paragraph 4

The rolls now close on the third working day after the date of the writs.

p. 96

after paragraph 4

The constitutionality of the statutory requirements for the registration of a political party (500 members, no overlapping membership with other parties) was upheld in Mulholland v Australian Electoral Commission, 2004 209 ALR 582.

paragraph 7

The deposits are now $1,000 and $500, respectively.

paragraph 2

The candidates address the Senate before other senators speak (SD, 14/8/2007, p. 1).

paragraph 4, end

There were two candidates for election as President on 9 August 2005.

paragraph 7, end

(A resolution of 6 October 2005, on the recommendation of the Procedure Committee, authorises the storage of original tabled documents outside Parliament House:  6/10/2005, J.1200).

p. 123

paragraph 4, end

See also the 41^st report of the committee (PP 360/2004), adopted by the Senate (8/12/2004, J.273).

p. 124

paragraph 5, end

The Parliamentary Service Act 1999 was amended in 2005 to establish an independent position of Parliamentary Librarian within the Department of Parliamentary Services.

p. 135

paragraph 6

(US v Traficant: Supreme Court declined to hear appeal, 10/1/2005)

last paragraph, end

The recommendation of the committees for an alternative procedure was subsequently adopted by the government (2/3/2006, J.1954).

p. 145

paragraph 7, end

; 16/5/2002, J.366; 10/2/2005, J.372-3

A similar meeting was called on 3 November 2005 (a day on which estimates hearings were also held) to consider legislation relating to terrorism (3/11/2005, J. 1300).

p. 150

paragraph 5, end

The prorogation of 31 August 2004 similarly superseded supplementary estimates hearings scheduled for November 2004, but subsequently a special procedure for questions on notice was substituted for the hearings (18/11/2004, J.78).

p. 169

paragraph 2, end

Ruling by President Calvert, 14/9/2005, J.1108-9; 15/9/2005, J.1141-2; Procedure Committee, Second Report of 2005, PP 280/2005, endorsed by the Senate 9/11/2005, J.1380-1.  As a result of the last decision of the Senate, the Chair is able to exercise a discretion in applying the ruling to ensure that adequate opportunity is given to senators to state a case for a suspension of standing orders.

p. 203

paragraph 4, end

See also John Fairfax v District Court of NSW, 2004 50 ACSR 380, for the point that courts are now less concerned about pre-trial discussion of cases.

after paragraph 5

It has been held that it is not in order to refer to a senator’s religion in debate (statement by President Calvert, referring to ruling by President McMullin, SD, 8/11/2005, pp 20, 35-6).

p.206        

paragraph 7, end

Similarly, statements about the policies of parties which are alleged to be incorrect are matters for correction in debate, not subjects for ruling by the chair (statement by President Calvert, SD, 4/12/2006, pp 37-8).

paragraph 5

As this principle is still occasionally questioned, a more extensive list of precedents is provided: rulings of President Baker, SD, 14/9/1905, pp 2246-7; 19/9/1906, pp 4839-40; President Givens, 7/12/1916, pp 9496-8; President Kingsmill, 21/5/1931, p. 2154; 15/7/1931, p. 3864; 21/10/1931, p. 962; President McMullin, 9/3/1967, p. 450; President Sibraa, 10/12/1991, p. 4509; 26/5/1993, p. 1340-1; President Beahan, 30/8/1995, p. 694; President Calvert, 17/8/2006, p. 76; 28/2/2007, pp 76-7.

paragraph 5, end

Subject to that requirement, senators are entitled to have whomever they choose as their advisers in their advisers’ benches (SD, 2/12/2005, p. 10).

paragraph 5

Deferred motions of dissent were also considered in August and September 2005.  The full list of precedents is:  (Notice Papers 9/7/1919, 16/7/1919, 26/9/1938, 3/11/1938, 16/5/1950, 16/9/1952, 12/5/1970, 20/5/1970, 17/8/2005, 15/9/2005).  The motion may be postponed and discharged (20/5/1970, J.113; 21-22/10/1970, J.363, 370; 29/10/1970, J.400).

paragraph 1, end

See also SD, 2/12/2005, pp 205-6.  Unless this principle is adhered to, a limitation of time could be subverted by divisions on every question and amendment before the chair, in some cases resulting in hundreds of divisions.

paragraph 2

list of precedents: 2/3/2006, J.1952-3; 28/3/2006, J.2008-9; 30/3/2006, J.2091; 15/6/2006, J.2256.

p. 223 

paragraph 5, end

; 13/10/2005, J.1293-4; 3/11/2005, J.1302).  A temporary order first passed in 2004 altered this time to 4.30 p.m. (11/5/2004, J.3379; 10/8/2006, J.2450; 17/8/2006, J.2537; 4/9/2006, J.2557). Standing order 57(2) provides for divisions called between 12.45 pm and 2 pm on Wednesdays also to be deferred, but until later on the same day. When a deferred division is called on, the practice is to put the question again, on the basis that senators who originally called the division may change their minds and allow the question to be determined on the voices.

last and first paragraph

Pairs are not a matter for the chair: see statement by President Calvert, SD, 7/11/2006, p. 1.

paragraph 7

list of bills: Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005, Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006.

paragraph 4, end

; message not acted on, bill abandoned by government: 14/8/2006, J.2463, 2474

p. 231

paragraph 2, end

; textile, clothing and footwear bills, 7/12/2004, J.236

paragraph 1, end

Bills not yet received from the House may be put together with bills already in the Senate (12/9/2005, J.1073-4).

after paragraph 1

When bills or packages of bills are ordered to be taken together other than under standing order 113(2)(b), at the second or third reading stages, a senator who has spoken in the debate on one of the bills or packages but not the other may speak again when debate is resumed after the passage of the order. (See SD, 12/9/2005, p. 9.) This rule is necessary to preserve the right of each senator to speak to all of the bills. This right would also be exercisable when bills which have reached different stages are ordered to be taken together, and are brought to the same stage before proceeding together.

after paragraph 7

If the Senate adds to its sittings so that the period for which it is actually adjourned is shortened and one period of sittings is effectively amalgamated with the previous period, this does not mean that bills which would have met the deadline are then caught by it because they are regarded as having been introduced in the same period of sittings. (In practical terms, this situation would usually come about by the Senate being “recalled” under standing order 55 in an adjournment which was scheduled to last for more than 20 days but is reduced to 20 days or less by the “recall”.) The definition in standing order 111(8), in referring to the Senate adjourning, refers to the original decision of the Senate to adjourn rather than to the actual period of the adjournment as altered by a subsequent decision. The alternative interpretation would involve bills introduced by the government with the intention of complying with the deadline being caught by an unexpected change in the Senate’s sitting pattern.

after paragraph 3

A reference to the Community Affairs Committee in 2006 required it to consider “legislative responses” to a report on laws governing cloning and stem cell research. A draft bill tabled in the Senate and a bill presented to the President, prepared by two senators, were considered by the committee under this reference. (14/9/2006, J.2706.)

In 2007 legislation was abandoned by the government following a reference of part of the legislation to a committee and a recommendation by the committee that the legislation not proceed until the missing part of it was introduced (report by the Finance and Public Administration Committee on proposed access card, March 2007, PP 106/2007).

Bills reported on by Senate committees before the bills are received by the Senate are often amended by the government in the House of Representatives in response to the committees’ reports.

p. 242

paragraph 2, end

For a reference arising from a Selection of Bills Committee report requiring a committee to report on a bill on the next day, see 6/12/2004, J.215; 7/12/2004, J.246.

paragraph 4

Other significant precedents of amendments to the motion for the adoption of the report of the committee of the whole: expressing opinions of the Senate (2/12/1983, J.540-1; 16/10/1984, J.1228; 24/3/1994, J.1524-6); declaring the Senate’s intention in making requests (24/3/1994, J.1504); making references to committees (24/3/1994, J.1504; 13/12/1996, J.1337); making a standing order for documents (24/3/1994, J.1517); making an order for a report by a statutory authority (25/3/1999, J.626); providing for the urgent despatch of a message (31/5/1985, J.381).

paragraph 3

list of precedents: Superannuation Laws Amendment (Abolition of Surcharge) Bill 2005, 10/8/2005, J.895.

p. 262

after paragraph 3

In December 2004 a constitution alteration bill, which had in effect been rejected when it did not gain the support of an absolute majority of the Senate in May 2003, was restored to the Notice Paper with consideration to be resumed at the beginning of the committee stage, but as amended in its previous consideration (1/12/2004, J.166).

paragraph 3, end

; a complete treatment of these rulings is in Chapter 8, Conduct of Proceedings, under Suspension of standing orders.

after paragraph 4

In normal proceedings on bills a senator is not obliged to move an amendment which he or she has circulated, but when duly circulated amendments are put at the expiration of a time limitation, it is not open to a senator to withdraw a circulated amendment; to allow this could deprive senators who wished to vote for such an amendment of that opportunity (SD, 14/9/2005, p.137).

after paragraph 5

Special orders may be made prescribing time limits for the consideration of bills (8/2/2006, J.1839; 12/10/2006, J.2799; 7/12/2006, J.3299).

after paragraph 3

Provisions in bills which were described by the government as “switching off” and “switching on” appropriations were the subject of a statement by the Chair of Committees on 14 September 2005. They appeared to be a device to avoid the injunction in section 53 of the Constitution on the initiation of appropriations in the Senate, and did not appear to derogate from the processes of the Senate (SD, 14/9/2005, p. 37).

Until 2005 it was thought that the expenditure of money under appropriations was as a matter of law limited to the purposes of the appropriations. In Combet v Commonwealth 2005 221 ALR 621 (21 October 2005), however, a majority of the High Court, called upon to consider the legality of certain government advertising expenditure under the post-1999 outcome-based budgeting system reflected in appropriation bills, in effect held, as the minority justices observed, that the executive government is free to expend money from appropriations on any purpose it deems appropriate. This judgment, as the Chief Justice explicitly stated, placed the task of controlling expenditure under appropriations exclusively in the responsibility of the Parliament. (See also report by the Finance and Public Administration Committee on Transparency and accountability of Commonwealth public funding and expenditure, PP 47/2007; response by the Chairs’ Committee presented 21/6/2007, J.4028.)

paragraph 5

Monthly statements on issues from the advances have been replaced by statements of individual issues, which are legislative instruments under the Legislative Instruments Act but are not disallowable (see Chapter 15, Delegated Legislation and Disallowance).

p. 276

second last paragraph, end

For a further examination of the application of section 55, see Permanent Trustee Australia v Commissioner of State Revenue, 2004 211 ALR 18. The High Court has indicated that laws imposing taxation may include provisions for assessment, collection and recovery of taxation where it is difficult to separate them, contrary to the strict separation of these matters usually observed by the drafters of government bills (see below, under When requests are required: (a) bills imposing taxation).

p. 284

after paragraph 1

In 2004 the Senate determined a matter relating to the classification of payments to international organisations, on the recommendation of the Appropriations and Staffing Committee (41^st report of the committee, PP 360/2004; 8/12/2004, J.273).

In March 2005 two appropriation bills were presented to replenish money spent by departments and agencies on relief for the victims of the 2004 tsunami. One of the bills purported to be for the ordinary annual services, but as the expenditure could not possibly be ordinary annual services expenditure, both bills were treated as amendable bills (15/3/2005, J.499-500). The Northern Territory Emergency Response package of bills repeated this anomaly ( 17/8/2007 , J.4254). See also statement by the Chair of Committees in relation to the Appropriation (Regional Telecommunications Services) Bill 2005-2006, SD, 14/9/2005, p. 37.

These instances indicated that the Department of Finance and Administration appeared to be taking a position that ordinary annual services include anything it regarded as falling within vaguely-expressed outcomes of departments, including new policy proposals, a position quite contrary to the compact of 1965 and subsequent Senate determinations (see Report No. 25 of 2005-06 of the Auditor-General, pp 40-41; Appropriations and Staffing Committee , Annual Report 2005-06, PP 157/2006; Annual Report 2006-07, PP 138/2007; report of Finance and Public Administration Committee on annual reports, PP 206/2007).

after paragraph 1

A report of the Auditor-General presented in 2004 (Report No. 15, 2004-05, PP 240/2004) found widespread illegalities, lack of information and absence of accountability and control in the administration of special appropriations. It was pointed out that the nature of special appropriations (“bottomless buckets of money”) encourages these problems. (29/11/2004, J.122; SD, 29/11/2004, pp 74-8) The problems posed by special appropriations were subsequently taken up in debate on bills containing new provisions for such appropriations and by the Scrutiny of Bills Committee (SD, 10/10/2005, pp 16-17; Fourteenth Report of 2005, Accountability and Standing Appropriations, PP 461/2005). The committee adopted the practice of reporting on provisions for such appropriations.

Other reports by the Auditor-General disclosed lack of proper control and accountability in other areas of the public finance system where annual appropriations are by-passed (Reports Nos 24 of 2003-04, 28 of 2005-06, 31 of 2005-06).

paragraph 4,end

; the same principle applies to an amendment which would empower a minister to make determinations which could be exercised to increase expenditure otherwise to be made under the bill: statement by Chair of Committees, 21/6/2007 , J.4043).

paragraph 3

See also Higher Education Legislation Amendment (2005 Budget Measures) Bill 2005, 8/11/2005, J.1363; SD, 9/12/2005, p. 45.

pp 342-3

The Legislative Instruments Act came into effect on 1 January 2005. Instruments must now be tabled within 6 sitting days after their registration. They are identified by a Federal Register of Legislative Instruments (FRLI) number. Some instruments previously not subject to disallowance are now disallowable by virtue of the Act.

paragraph 1, end

The committee cannot meet other than in Parliament House without authorisation by the Senate (22/6/2006, J.2345).

second last paragraph, end

The committee may report that ministers have given undertakings to initiate amendments of legislation to conform with the committee’s principles.

p. 359

paragraph 2

first list of precedents: 29/11/2004, J.123. Reports on aspects of legislation: 4/12/2006, J.3226.

after paragraph 6

The structure of the legislative and general purpose standing committees was altered on 14 August 2006, with effect on 11 September 2006, so that, in effect, the references committees were absorbed by the legislation committees (Procedure Committee, First Report of 2006, PP 149/2006; 14/8/2006, J.2474-82).

paragraph 5, end

When the Senate was “recalled” under standing order 55 on 3 November 2005, scheduled estimates hearings were authorised to proceed (3/11/2005, J.1300-1).

after paragraph 5

The committees are free to set additional times for estimates hearings if they so choose. Any such additional hearings would have to occur before the time set by the Senate for the committees to report. As there is no requirement for the committees to report after the supplementary hearings (see below) such additional hearings could be held at any time up to the next round of regular hearings. Thus, in the supplementary hearings in early November 2006, the Economics Committee decided to hold an additional hearing later in November.

p. 366

after paragraph 6

An amendment of standing order 74(5), made on the recommendation of the Procedure Committee on 9 November 2005, allows a senator, on any day after question time in the Senate, to seek an explanation of, and initiate a debate on, any failure to answer an estimates question on notice within 30 days after the deadline set by the committee for answering such questions (9/11/2005, J.1380-1; procedure used: 14/8/2006, J.2465).

In November 2004 the Senate adopted a special procedure whereby questions on notice were substituted for supplementary estimates hearings (18/11/2004, J.78).

p. 368

paragraph 2, end

Statistics showing delays in answering questions on notice and a letter from the President to the Leader of the Government in the Senate were tabled in 2005, following discussion of the matter in an estimates hearing (14/6/2005, J.656). The problem was also referred to in the report of the Finance and Public Administration Legislation Committee on the 2004-05 additional estimates (PP 64/2005, p. 82).

p. 369

paragraph 5, end

(For the repeated refusal of a joint committee, the Joint Standing Committee on Treaties, to consider a matter referred to it by the Senate, see SD, 20/6/2005, pp 61-4.)

paragraph 3

The Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund ceased in March 2006 by its statute. The Joint Committee on the Australian Commission for Law Enforcement Integrity is established by the Law Enforcement Integrity Commissioner Act 2006.

after paragraph 4

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)

last paragraph

Thus, a senator upon election as President ceases to be a member of any committees other than those of which the President is an ex officio member.

paragraph 1, end

(For a legislative and general purpose standing committee presenting to the Senate documents of a completed inquiry closely related to material in its report, see additional information tabled by Finance and Administration Committee, 8/8/2006, J.2390.)

p. 383

paragraph 2, end

Special references to the legislative scrutiny committees are treated in the same way (29/11/2004, J.123).

p. 385

paragraph 4, end

Two extra appropriation bills (Nos. 5 and 6 of 2004-05) were also referred for estimates hearings with the annual appropriation bills of 2005-06 (10/5/2005, J.594).

p. 396

paragraph 6, after second sentence

In particular, it is not open to a chair of a committee to impose restrictions on senators which are not imposed by some known rule prescribed by the Senate.

paragraph 5

Another order, on the recommendation of the Procedure Committee , elaborated and added to the earlier order ( 6/10/2005 , J.1200-2; 17/9/2007 , J.4388). For action by committees under these provisions, see statement by the chair of the Senators’ Interests Committee, SD, 13/9/2006 , pp 90-2; report by the Rural and Regional Affairs and Transport Committee, PP 205/2007.

p. 404

paragraph 4, end

See also estimates hearing of the Employment, Workplace Relations and Education Legislation Committee, 3/6/2005, transcript p. 44

after paragraph 5

Where members of a committee indicate an intention to present a minority report, they may present, without leave, such a report subsequent to the presentation of the main committee report. In the absence of a notification of intention to the committee, however, such a minority report is simply another document for which a senator requires leave to table. (10/5/2007, J.3805)

after paragraph 4

On occasions government responses have been presented in response to questions at question time. There is nothing in the rules of the Senate to prevent this, although question time does not facilitate the consideration of responses (SD, 29/11/2005, pp 36-8).

p. 415

after paragraph 1

Witnesses occasionally submit statutory declarations to committees, apparently to add credibility to their statements. If such a declaration is prepared for the purpose of submission to a committee, however, making it is an empty gesture; because of parliamentary privilege no prosecution for a false declaration, under the laws relating to such declarations, can proceed. Committees deal with such declarations as normal submissions.

p. 415

after paragraph 3

Committees have also issued general warnings against interference with witnesses. In April 2005 the Finance and Public Administration References Committee placed advertisements in local newspapers containing such warnings.

p. 419

after paragraph 3

The fact that a person against whom adverse evidence is given is notorious, or has had ample opportunity to respond to allegations through public controversy, does not affect the application of the right-of-reply procedure (see, for example, report of the Legal and Constitutional Legislation Committee on additional estimates 2004-05, PP 64/2005, p. 165).

p. 419

paragraph 5, end

A written response is now regarded as affording a reasonable opportunity to respond in most cases, even where an oral hearing is requested.

after paragraph 1

In carrying out the requirement in Resolution 1(18) to investigate possible interferences with witnesses, committees may take their investigations as far as they consider necessary, and may resolve such matters themselves or recommend to the Senate that they be referred to the Privileges Committee (for an example see report by the Environment, Communications, Information Technology and the Arts Committee on two privilege matters, PP 176/2007).

paragraph 2, end

State and territory ministers appeared before the Employment, Workplace Relations and Education Legislation Committee in its inquiry into workplace agreements and workplace relations legislation in October and November 2005.

p. 426

after paragraph 4

In the course of its inquiry into the regional partnerships program in 2005, the Finance and Public Administration References Committee received evidence about the conduct of members of the House of Representatives, but did not consider such evidence except to the extent that it was relevant to the matter under inquiry by the committee (statement by Senator Forshaw, chair of the committee, transcript of hearing 3/2/2005, pp 26-7).

The Privileges Committee in 2007 refrained from finding the contempt of improper refusal to provide evidence on the part of a person because a full hearing of the matter would have involved allowing the person to question a member of the House of Representatives (131 st report of the committee, PP 171/2007, endorsed by the Senate 20/9/2007, J.4463).

p. 427

after paragraph 3

See also First Special Report of 2005-06 of the United Kingdom House of Commons Select Committee on Public Administration, HC 690 2005-06.

A ministerial staff member appeared under summons before a committee of the New South Wales Legislative Council (the Orange Grove inquiry) in August 2004, among others attending voluntarily.

p. 429

paragraph 3

The issue of a legislative subpoena to an official of an organisation possessing diplomatic immunity came before a US district court in 2005 (United Nations v Parton, not reported). The court in effect suspended the operation of the subpoena to allow the parties to reach agreement.

p. 438

paragraph 5, end

; 10/3/2005, J.463-4). See also below for orders requiring statutory bodies to produce reports on matters relating to their responsibilities..

p. 438

paragraph 6

An order was made by way of an amendment to the motion for the adoption of the report of the committee of the whole on the Transport and Communications Legislation Amendment Bill (No. 3) 1993 for regular reports on action taken under the bill (24/3/1994, J.1517).

The Finance and Public Administration Committee presented in February 2007 a report on the order requiring the Internet listing of contracts, recommending the maintenance and strengthening of the order (PP 45/2007).

paragraph 1, end

For reports under this provision, see 8/12/2005, J.1748; 6/12/2006, J.3271.)

p. 440

paragraph 1

(Further orders on, and reports by, the ACCC: 10/3/2005, J.463-4; 11/5/2005, J.621; 14/6/2005, J.655; 30/11/2005, J.1461; 7/12/2005, J.1721; 4/12/2006, J.3227.)

p. 440

paragraph 2, end

In 2005 the Australian Competition and Consumer Commission was ordered to produce a report on a confidential basis to a committee. The report was duly produced. (10/3/2005, J.463-4; 17/3/2005, J.566)

after paragraph 2

An amendment of standing order 164, made on the recommendation of the Procedure Committee on 9 November 2005, allows a senator, after question time on any day in the Senate, to seek an explanation of, and initiate a debate on, any failure by a minister to respond to an order for documents within 30 days after the order is made (9/11/2005, J.1380-1).

paragraph 5

(A resolution of 6 October 2005, on the recommendation of the Procedure Committee, authorises the storage of original tabled documents outside Parliament House:  6/10/2005, J.1200).

paragraph 7

These provisions have been rendered virtually inoperative by subsequent amendments (Defence Legislation Amendment (Aid to Civilian Authorities) Act 2006).

paragraph 5, end

For a breach of this practice, see 8/12/2005, J.1745.

p. 463

list of censure motions

• 11/5/2005, J.614-5. The Minister for Immigration and Multicultural and Indigenous Affairs, Senator Vanstone, was censured for her failure to take responsibility for the manifest failures of her department in relation to detained persons.
  
  

p. 465

after paragraph 4

A paper entitled Grounds for Public Interest Immunity Claims, listing potentially acceptable and unacceptable grounds for claims of public interest immunity, based on cases in the Senate (many of which are set out below), was circulated to senators during the May 2005 estimates hearings, and was published by the Employment, Workplace Relations and Education Legislation Committee. The paper indicated that the following grounds had attracted some measure of acceptance in the Senate, subject to the circumstances of particular cases and without acceptance of distorted or exaggerated versions of the grounds:

• prejudice to legal proceedings
• prejudice to law enforcement investigations
• damage to commercial interests
• unreasonable invasion of privacy
• disclosure of Executive Council or cabinet deliberations
• prejudice to national security or defence
• prejudice to Australia's international relations
• prejudice to relations between the Commonwealth and the states.

The paper listed the following grounds not accepted by the Senate:

• a freedom of information request has been or could be refused
• legal professional privilege
• advice to government
• secrecy provisions in statutes
• working documents
• “confusing the public debate” and “prejudicing policy consideration”.

paragraph 3

See also Secretary, Department of Infrastructure v Asher (2007, Supreme Court of Victoria, not yet reported).

p. 482

last paragraph, end

; debate on the letter: 22/6/2005, J.787. For a refusal by a minister to answer a question without stating any ground, see the reservation attached to the report of the Foreign Affairs, Defence and Trade Legislation Committee on the additional estimates 2004-05, PP 64/2005, pp 149-50; SD, 14/3/2005, pp 65-70.

At various times governments have claimed that there is a long-established practice of not disclosing their advice, or of not doing so except in exceptional circumstances; see, eg., report by the Finance and Public Administration References Committee, PP 228/2005, pp xxii-xxiv. These claims are refuted by the occasions on which advice is voluntarily disclosed when it supports a government position; eg., 4/9/2006, J.2553. The actual position was stated in answer to a question on notice in the 2006-07 supplementary estimates hearings: advice is not disclosed unless the government chooses to do so (Foreign Affairs, Defence and Trade Committee, answer to question no. 22 by the Department of Foreign Affairs and Trade).

Similarly, immunity is often claimed for documents on the basis that they are cabinet documents. The cabinet confidentiality ground, however, is properly claimed only for documents which would reveal the deliberations of cabinet. The courts have made this clear in relation to such claims in court proceedings (see above, under Public interest immunity in the courts).

In 2006 the government instructed some officers not to answer questions in estimates hearings on matters which were before the commission of inquiry (the Cole commission) into the AWB Iraq wheat bribery affair. Some questions about the matter were answered. There was no claim of public interest immunity. Because the then government had a party majority of one in the Senate, no remedial action was taken in this matter, except that senators kept asking questions, with some success. This was one of several unsupported government refusals to provide information during that period (July 2005-2007).

p. 484

paragraph 5, end

Following this case the Council adopted the procedure of appointing an independent arbiter to assess any claims of public interest immunity arising from orders for documents. This procedure has worked successfully in several cases.

paragraph 2, end

In 2005, after the government gained a party majority of one in the Senate, there was debate about an altered allocation initiated by the President allegedly at the instigation of the government (SD, 9/8/2005, pp 13-41).

p. 491

after paragraph 2

Under an amendment of standing order 74(5) made in November 2005, the procedure applies also to questions on notice lodged during estimates hearings. (See Chapter 16, Committees, under Estimates committees.)

paragraphs 3 and 4

See also statement by President Calvert, SD, 17/10/2006, p. 36.

paragraph 4, end

; 26/3/2007, pp 34-5).

p. 494

last paragraph, after first sentence

Questions would not only be in conformity with the standing orders, but would be more effective and telling, if they were confined to properly framed questions, and did not contain statements, assertions, allegations, insinuations and other extraneous material (statement by President Calvert, SD, 6/12/2004, pp 36-7).

paragraph 3, end

A report in 2006 of a review of this system, commissioned by the Supreme Court, found that it had worked well.

Possible unauthorised disclosure of private deliberations or draft report of Select Committee on the Free Trade Agreement between Australia and the United States of America (No. 120) PP No. 52/2005

5/8/2004
(J.3829)

Senate:
President determined precedence
4/8/2004
Motion moved by Senator Ridgeway, and agreed to 5/8/2004

8/3/2005
(J.432)

Finding

• in the circumstances of the case no contempt should be found

Finding endorsed
10/3/2005
(J.477)

Possible unauthorised disclosures of draft reports of Community Affairs References Committee (No. 121) PP No. 58/2005

12/5/2004
(J.3403)

24/6/2004
(J.3699-3700)

Senate:
President determined precedence 11/5/2004 Motion moved by Senator Ferris, at the request of Senators Knowles and Humphries, and agreed to 12/5/2004

Senate:
President determined precedence 24/6/2004 Motion moved by Chair of the Community Affairs References Committee (Senator McLucas) and agreed to 24/6/2004

15/3/2005
(J.507)

Finding

• that, given the inability of the committee to discover the source of the unauthorised disclosures, no contempt should be found

Finding endorsed
17/3/2005
(J.568)

Parliamentary privilege – unauthorised disclosure of committee proceedings

(No. 122) PP No. 137/2005

16/3/2005
(J.544)

Senate:
Motion moved by Chair of the Privileges Committee (Senator Faulkner) and agreed to 16/3/2005

21/6/2005
(J.781)

Recommendation:

• that proposed revised procedures for dealing with unauthorised disclosures of committee documents be referred to the Procedure Committee for consideration

Whether there have been any failures by Senator Lightfoot to comply with the Senate’s resolution of 17 March 1994 relating to registration of interests, and, if so, whether any contempt was committed in that regard

16/6/2005
(J.706)

Senate:
President determined precedence 15/6/2005 Motion moved by Senator George Campbell, at the request of the Leader of the Opposition in the Senate (Senator Evans), and agreed to 16/6/2005

5/10/2005 (J.1174)

Finding

• that although there were failures to comply with the resolution there was no evidence of an intention not to comply and, therefore, no contempt should be found

Finding endorsed 6/10/2005 (J.1204)

Person referred to in the Senate – Professor David Peetz (No. 124) PP No. 405/2005

29/11/2005

President

6/12/2005 (J.1652)

Recommendation

• that response be incorporated in Hansard

Report adopted 6/12/2005 (J.1652)

Parliamentary privilege – Precedents, procedures and practice in the Australian Senate 1966-2005 (No. 125)

—

General report

Presented to the President under standing order 38(7) on 19/12/2005

—

Recommendation

• that response be incorporated in Hansard

Recommendation

• that response be incorporated in Hansard

Recommendation

• that response be incorporated in Hansard

Person referred to in the Senate – Dr Clive Hamilton (No. 129)

PP No. 388/2006

30/10/2006

President

8/11/2006

(J.3027)

Recommendation

• that response be incorporated in Hansard

Report adopted 8/11/2006 (J.3027)

7/8/2007

Recommendation

• that response be incorporated in Hansard

Report adopted

Possible false or misleading evidence and improper refusal to provide information to the Finance and Public Administration Committee

Senate: President determined precedence 6/2/2007

Motion moved by Senator Forshaw and agreed to 7/2/2007

11/9/2007

Findings

• there was a refusal to provide information, but in view of repeated refusal to provide it committee unable to find that false or misleading evidence given
• unable to find a contempt against the person who refused to provide information as this would have involved allowing him to examine a member of the House of Representatives

Recommendation

• that the Senate accept that the matter not amenable to further pursuit by exercise of formal inquiry powers
  

13/9/2007

Recommedation

• that the order of 6/10/2005 relating to unauthorised disclosure of committee proceedings operate as an order of continuing effect
  

Recomm-

endation adopted

17/9/2007

(J.4389)

Recommendation

• that response be incorporated in Hansard

Report adopted

10.5.2005 J.574

Evans

Alleged failure of Senator Lightfoot to provide a statement to the Registrar of Senators’ Interests relating to sponsored trip to Iraq

Given, but motion withdrawn following apology by Senator Lightfoot (11/5/2005, J.610)

15.6.2005 J.684

Evans

Alleged failure of Senator Lightfoot to provide a statement to the Registrar of Senators’ Interests relating to share ownerships and transactions

Given

16.8.2005 J.953

Brown

Conduct by Senator McGauran in the chamber on 11 August 2005

Not given

5.9.2005 J.997

Finance and Public Administration References Committee

Apparent conflict between an answer to a question given by a witness and the facts as subsequently disclosed to the committee

Given, but motion to refer matter to committee rejected (7/9/2005, J.1050)

57

16.6.05

Family and Community Services Legislation Amendment (Family Assistance and Related Measures) Bill 2005 — Three requested amendments to widen eligibility for maternity payment for adopted children by increasing the upper limit of the age range of such children

Requested amendments not made. Senate did not press requests

131

7.12.05

Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Bill 2005 — Six requested amendments to provide for exemption from certain requirements for carers and higher maximum payments of certain allowances

Requested amendments made

111

16.8.06

Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 — Two requested amendments to remove a cap on rental payments for township leases and a restriction on other payments in relation to township leases

Requested amendments made