Procedural Information Bulletin No. 209

For the sitting period 6 – 8 February 2007 and estimates hearings 12 – 16 February 2007

Reference of bills to committees

Debate on a Selection of Bills Committee report on 8 February provided an occasion for non-government senators to complain about what they described as abuse by the government of the system of referring bills to committees. They claim that the government is deliberately overloading the system by referring many bills, in some cases before the bills had even been initiated in either House, and by setting unrealistic deadlines for the committees to report. Amendments were moved by the non-government parties, but rejected, to refer some additional bills and to change the times for inquiries.

Subsequently, in speaking on the same day to the report of the Community Affairs Committee on disability services, Senator Patterson referred to her concerns about the health of committee staff because of the extreme workloads imposed upon them in dealing with bills inquiries. (A procedural point in relation to this report was that by leave it was added to the list of committee reports to be debated later that day after general business.)

The connection between these two matters was taken up in the estimates hearing for the Department of the Senate, when the Clerk was questioned about the effects of recent referrals of bills and deadlines. He pointed out, amongst other things, that bills reported from committees with very tight deadlines are often not dealt with in the chamber for weeks afterwards.

The committees, however, continue to have some successes in having bills amended following their inquiries. Because the provisions of bills are often referred to committees before the bills are received in the Senate, amendments resulting from Senate committee inquiries are sometimes made in the House of Representatives. This was the case with the Customs Legislation Amendment (Border Compliance and Other Measures) Bill 2006, which was dealt with in the Senate on 6 February. Sometimes the committees have an impact before a bill is introduced, as with the Anti Money Laundering and Counter-Terrorism Financing Amendment Bill 2007.

Other committee inquiries

Although the government, through its majority in the chamber, now controls the subjects which are referred to the committees for specific inquiries, such inquiries do not always turn out favourably and occasionally lead to accountability revelations. The report of the Rural and Regional Affairs and Transport Committee on Australia’s oil supply, presented on 7 February, drew attention to the amount of fuel wasted by company cars being driven unnecessarily for the purpose of raising their odometer readings to gain a tax benefit.

References to committees now usually coincide with the government’s agenda. The Employment, Workplace Relations and Education Committee received on 8 February a reference on education standards, a matter being “pushed” by the government currently. References moved by the non-government parties continue to be rejected.

The accusation that the government is overloading the system could well be supported by reference to the fact that another joint committee has been established, to add to the twelve already existing. The resolution to appoint a joint committee to oversee the Australian Commission for Law Enforcement Integrity was passed on 8 February.  When the relevant statute was passed, the non-government parties unsuccessfully attempted to combine the committee with one of the other existing committees.

Parliamentary privilege

The President determined that a matter of privilege should have precedence under standing order 81 on 6 February, and the reference to the Privileges Committee was passed without debate on the following day. The matter relates to a suggestion that a witness before a committee may have given false or misleading evidence. The person concerned is involved in politics, and the treatment of the matter contrasts with that of a similar matter, given precedence by the President in September 2005, but in respect of which the motion to refer it to the committee was rejected, with a vote on party lines and with complaints about privilege matters being dealt with on a partisan basis. Following that incident, the President was asked at an estimates hearing for the Department of the Senate to ensure that privilege matters are determined on a non-partisan basis in the future.

Orders for documents

A motion to require the production of the government’s advice on the military commissions to be used to try Guantanamo Bay prisoners, including David Hicks, was rejected on 7 February. The matter was subsequently raised in estimates hearings when the advice was again refused.

Formal motions

The matter of David Hicks was also the subject of virtually daily motions moved by the Greens as formal business under standing order 66.  These motions are clearly moved with regard to the reported discontent amongst government backbenchers over the treatment of Hicks. No government senators “crossed the floor” on the motions, however.

A motion on the ACT’s proposed civil union laws was more successful in that regard on 8 February, in that Senator Humphries “crossed” to support the motion.

Temporary orders renewed

The temporary orders relating to the extension of the adjournment debate on Tuesdays and the ability of committee members to appoint temporary substitutes were renewed on 6 and 7 February, respectively.

Odgers’ Australian Senate Practice

The Supplement to the 11th edition of Odgers’ Australian Senate Practice, updated to 31 December 2006, was tabled on 6 February and is on the Internet.

Accountability report

A motion moved by Senator Murray on 8 February referred to a series of accountability measures adopted by the Canadian government, and called on the Australian government to consider the adequacy of Australia’s existing legislative framework. The motion was rejected.

If committees are given inadequate time to conduct their bills inquiries, and then other inquiries are kept to matters favourable to government, their effectiveness will be limited but may not be entirely removed.

Estimates Hearings

As the major surviving accountability mechanism, the estimates hearings continue to attract much attention.  Senators took full advantage of their right to attend hearings of any committee and ask questions; at one stage there were 19 senators at one hearing.

Procedural Matters

The following matters of procedural interest arose.  (The abbreviations in brackets refer to the relevant committees, where appropriate.)

(1)     Refusals to answer questions  There were several flat refusals to answer questions without any attempt to properly raise claims of public interest immunity in accordance with past resolutions of the Senate. Officers and ministers are clearly aware that there is now no possibility of any remedy being taken in the Senate against refusals to answer. Perhaps the most creative reason for a refusal occurred in relation to the garments to be provided to the leaders at the forthcoming APEC meeting: disclosure of information would spoil the surprise (F&PA).  On another occasion information was refused because it was not published (Ec). If senators were confined to receiving information already published there would be no point in holding estimates hearings.  There was a repetition of the refusal to disclose forward estimates (CA).

An officer of the Department of Employment and Workplace Relations repeated an assertion that a provision in the Public Service Code of Conduct in the Public Service Act referring to “appropriate confidentiality” provided him with a reason for declining to disclose any information he regarded as confidential. This was the subject of an advice last year, and the advice was tabled in this hearing of the committee. The committee, after a private meeting, made a statement that officers should not seek to raise this claim (EWRE). Attached to this bulletin is a copy of the advice.

The misconception that the exemption grounds in the Freedom of Information Act automatically provide reasons for not disclosing information in committee hearings again surfaced (L&CA). This question was comprehensively dealt with in the past (see Odgers’ Australian Senate Practice, 11th ed., pp 474-5).

(2)     Advice to government  An answer to a question on notice cast a revealing light on the matter of disclosure of advice provided to government.  The answer stated:

Consistent with the long-standing practice of successive Governments DFAT does not comment on legal advice that may or may not have been provided to the Government, or persons performing functions on behalf of the Government, unless the Government decides in a particular case to do so.

This is an admission that the only rule relating to disclosure of advice is that it is disclosed whenever the government chooses to do so. This should put paid to past claims that advice is never disclosed (which is patently not true given the occasions when ministers voluntarily disclose favourable advice) or is only disclosed in most exceptional circumstances (see the report of the Finance and Public Administration References Committee in October 2005 on the Gallipoli Peninsular Works, PP 228/2005, pp xxii-xxiv). There were, however, other refusals to disclose advice, particularly relating to the US military commissions.

(3)     Telstra  The government has apparently decided that Telstra will never appear at estimates hearings again, in spite of the large number of questions always asked about its activities and the regulations applied to it. Questions will now have to be directed to the relevant department (ECITA).

(4)     Other inquiries  The following up of other inquiries at the estimates hearings was a notable feature of these hearings, particularly in the Community Affairs Committee. The persistence of that committee in pursuing matters relating to the family tax benefit was rewarded by an undertaking that relevant information would in the future be included in the departmental annual report.

(5)     Inquiries into bills  At the hearing for the Department of the Senate, senators requested statistics on committee inquiries into bills. When provided, these statistics could reveal whether the committees are being overloaded as alleged (see above, under References of Bills to Committees) (F&PA).

(6)     Proposed showing of video  A proposal by a minister to show a video recording at the hearing of the Finance and Public AdministrationCommittee in relation to the proposed government smartcard did not proceed when it was pointed out that standing order 26 (4) and (5) restrict estimates hearings, unlike other committee inquiries, to the questioning of ministers and officers.  The minister appeared not to understand the basis of this advice, and a supplementary advice was provided. Both advices were published by the committee and are attached to this bulletin.

(7)     Provisions of bills  The advice provided at the last hearings that questions should not be asked at estimates hearings about the provisions of bills which are the subject of special inquiries by committees was again referred to and accepted (L&CA).

(8)     Relevance  The Senate’s 1999 resolution stating the test of relevance of questions in estimates hearings had to be invoked on several occasions (particularly FAD&T). There appeared to be no systematic attempt by ministers, however, to limit questioning on supposed relevance grounds.

(9)     Questions on notice  The tardiness of some departments in answering questions on notice was again referred to. Again it was disclosed that departments and agencies may prepare their answers promptly but the answers are then held in ministers’ offices (particularly EWRE).In some hearings senators expressed discontent with the numbers of questions taken on notice, and complained that this was often an alternative technique for not answering questions.

(10)   Ordinary annual services.  A check on the additional appropriation bills disclosed a number of items included in the ordinary annual services bill which are not ordinary annual services and should not be in that bill (see Odgers, 11th ed., pp 282-4 and Supplement). This matter is encompassed in the inquiry by the Finance and Public Administration Committee on transparency of public funding.

(11)   Chairs and substitutes.  Difficulties again occurred about arrangements for the absence of chairs. If chairs are absent, deputy chairs, if present, act as chairs. The provision allowing the chairs to appoint temporary acting chairs may be used only when the chairs and the deputy chairs are absent. There seems to be a determination on the part of the chairs to keep the non-government deputy chairs out of the chairing role, and this leads to some elaborate manoeuvres, such as replacing of chairs for a specified period.

The new provision allowing members of committees to appoint temporary substitute members was used during the hearings.

Matters Examined

Amongst many others, the following notable matters were revealed in the hearings.

  1. The Prime Minister’s $10 billion water plan was not referred to Cabinet (F&PA). Ministers refused to answer several questions about the plan, and no detailed figures were forthcoming. Various departments were asked about their activity, or lack of activity, in relation to climate change and the water plan.
  2. On the other hand, Cabinet had approved the grant of $250,000 to a person who is constructing a state coach as a personal gift to the Queen. No reason was given for this grant (F&PA).
  3. The funding and operations of the CSIRO were extensively explored and attention was drawn to the power of private sponsors of research to withhold the results from publication, particularly in relation to coal (ECITA).
  4. A blow-out of $60 million in the budget of the Department of Immigration and Citizenship was disclosed (L&CA).
  5. The fire on the ship Westralia has not been exhausted as a subject, with several new revelations (FAD&T).
  6. The Christmas Island detention centre costs approximately $1 million per detainee, initial cost only (L&CA).
  7. ASIC’s pursuit of the James Hardie directors was disclosed just before the hearings and ASIC’s other activities were explored (Ec).
  8. The Department of Defence’s finances and acquisitions were again examined, on this occasion highlighted by the theft of weapons (FAD&T).
  9. There were further questions about contacts between the government and the religious sect the Exclusive Brethren (several committees).
  10. The regularly recurring subjects were again examined:  David Hicks; immigration visas; other activities of the Department of Immigration and Citizenship; detainees; political donations; the Customs cargo management project; AWB (via the Wheat Export Authority); the Iraq war.

Related resources

Dynamic Red – updated continuously during the sitting day, the Dynamic Red displays the results of proceedings as they happen.

Senate Daily Summary – a convenient summary of each day’s proceedings in the Senate, with links to source documents.

Like this bulletin, these documents can be found on the Senate website:

Inquiries: Clerk’s Office (02) 6277 3364

Attachments: Advices provided and published during estimates hearings (PDF 300KB)