This chapter reflects on some of the key pandemic-related changes to House procedure and practice in light of three of the core functions of the House and its Members—representation, voting and scrutiny of government. It also considers how the changes have occurred through flexibility and collaboration, and reflects on elements of Members’ attendance and participation as well as on how public access has been maintained. In its concluding remarks, the Committee notes a set of principles it considers key to a successful House response to a pandemic or other similar critical ongoing situation in the future.
A core part of a Member’s role is representing their constituents. One of the ways they do this is through raising matters of concern, including during time allocated in the House for private Members’ business—that is, bills and motions sponsored by private Members. Private Members’ business was not considered on 23 March, 8 April or during the 12–14 May sittings, although the Clerk noted in her submission of 10 June that ‘while the meetings of 23 March and 8 April had focussed largely on urgent legislation, more opportunities for private Members were available in the week beginning 12 May’. These occurred in both the House and the Federation Chamber and included Members’ statements, constituency statements and adjournment debates. Mr Andrew Wilkie MP argued in his submission of 3 June that private Members’ business giving way to government business to pass legislation during the pandemic must be an exception rather than becoming the rule.
Mondays usually provide most opportunities for private Members’ business. The revised sitting pattern included one week where the House sat from Wednesday to Friday (10–12 June). The House agreed to a revised order of business for each day that week, which included opportunities for private Members’ business on the Wednesday. Private Members’ business comprised 11 per cent of House time in the 10–18 June sittings, and other opportunities for private Members a further 19 per cent of House time. For the 24 August–3 September sittings, these figures were 13 per cent and 18 per cent respectively. This is not dissimilar to the 45th Parliament, when 10 per cent of House time was spent on private Members’ Business, and 19 per cent of time was spent on other opportunities for private Members.
Members who participated via video link in the August/September sittings had opportunities to contribute to debates and statements in the House (but not the Federation Chamber). The Committee notes that in future, should sitting times be reduced because of a pandemic or similar emergency, if the need arose additional procedural options could be considered to increase speaking opportunities for Members. Especially if Members attend Parliament House on fewer sitting days, they may appreciate additional access to speaking opportunities. For example, trialling shorter speech times could enable a greater number of Members to speak in a debate if there was such demand. Further, depending on the volume of business, there could be further scope to utilise the Federation Chamber.
Another key part of a Member’s job is voting in divisions—that is, formal votes of the House—on legislation and other matters. During COVID-19, the House has maintained that voting can only occur in the House itself, including at times when some Members have been able to contribute to debate and other matters remotely. Despite the reduced numbers of Members in the House at any one time, voting in divisions has been possible because of the informal system of pairs (see Chapter 2), which has maintained the representation of the major parties.
The Clerk noted that ‘in the future, if the House needed a different approach to conducting divisions, it could resolve to adopt proxy voting by a similar means to the current provisions for nursing mothers.’ Mr Wilkie raised the issue of electronic voting in his submission.
The Clerk also noted that other national parliaments have adopted different measures to continue meeting during COVID-19, such as remote voting in the House of Commons in the United Kingdom and amended proxy voting in New Zealand. The United Kingdom House of Commons has since ceased remote voting but has allowed proxy voting for MPs who are unable to attend Westminster for medical or public health reasons related to the pandemic. Actions by other parliaments need to be viewed in the context of their constitutions and exposure to the pandemic as it has unfolded.
The Committee notes that the informal system of pairs did not remove individual Members’ right to attend. The Clerk noted in her submission that ‘the limiting factor on participation was where medical advice indicated that a Member should not attend, for reasons of either their own health vulnerabilities or the need for them to quarantine themselves’.
The informal pairs system has been successful in 2020 due to the preparedness of parties and individual Members to at times not attend the House in person. It is possible that in other times and other circumstances this preparedness would be less forthcoming. Also, the votes during the period covered by this report all followed party lines. The Committee notes that voting arrangements would also require further attention should there be a requirement for a ‘free vote’—that is, a vote where a party has no particular policy or where a party considers that Members should be permitted to exercise their responsibility in accordance with conscience.
Holding the Government to account is one of the key roles of the House. The Committee notes that Question Time has been held each day that the House has sat, including on 23 March and 8 April when legislation was restricted to urgent matters relating to COVID-19. The Committee acknowledges that there have been different views over the revised sitting calendar, but notes that the sitting dates have been altered several times as the pandemic has continued.
Members of the cross-bench were in favour of establishing joint parliamentary committees to look into the government’s health and economic responses to the pandemic. Ultimately, the Opposition supported the Government in establishing a Senate select committee to perform such oversight.
Many activities of House committees have continued during the pandemic, although with much reduced travel and fewer in-person public hearings. Instead, committees have made greater use of video and teleconferencing facilities. Committee work has adapted throughout the course of the pandemic, following initial advice from the Presiding Officers on 16 March that:
While it is formally a matter for each committee to consider, we recommend that scheduled Senate, House and Joint committee hearings transition to using video or teleconference facilities as soon as possible. Committees should give serious consideration as to whether their business is essential. If any committee hearings proceed in Parliament House during the next parliamentary sitting week, they will not be open to the public. Arrangements will be made for witnesses to appear in person only if necessary ...
Similar advice was provided again on 11 May before the House sat for three days. Subsequent advice was that committee hearings or proceedings held in Parliament House during the next sitting period would not be open to the public, and that arrangements would be made for witnesses to appear in person if essential. Throughout, public committee proceedings have been accessible on the Parliament House website, both through audio and/or video links and through Hansard transcripts.
Attendance and participation
Both the change to Standing Order 47(c)(ii) on 23 March and informal pairing arrangements enabled the House to continue to sit with reduced numbers (while still meeting quorum requirements). As detailed in Chapter 2, for each period of sittings, varying numbers of Members have travelled to Canberra and been able to attend the House at different times to speak, even if paired for divisions, while respecting the need to limit the number of Members in the chamber at any one time.
Remote participation has been limited to specific contributions. Following the worsening of the situation with the virus in Victoria, and various changes to state and territory quarantine requirements, participation by video link was made available to Members who found it impossible to attend the 24 August–3 September sittings in person. This was only available to Members who could demonstrate to the Speaker that they were unable to attend Canberra due to issues related to COVID-19. The Leader of the House noted that the video link facility could only be utilised by Members who found it ‘virtually impossible or simply impractical’ to attend Parliament in Canberra in person; serious inconvenience was not sufficient reason for remote participation. The Manager of Opposition Business stated that ‘... what the Leader of the House and I have agreed on is not a virtual parliament. The Parliament is meeting and it is meeting here ... ‘ The Speaker confirmed that his determination was that ‘the normal requirements of the House standing orders and practice for quorums and divisions remain in place. However ... members unable to attend for COVID related reasons may seek ... and be given the call to speak via the official parliamentary video facility during certain proceedings.’
Members who participated in proceedings remotely were recorded in the Votes and Proceedings as having ‘participated by video link’. This did not equate to ‘attendance’, which was recorded as usual—that is, Members that did not attend the Parliament physically were recorded as not having attended.
As described in Chapter 2, Members who are paired have been recorded in the Votes and Proceedings and in the Hansard since 12 May. Some Members not paired and not in attendance have also at times made their voting intentions or views on legislation known. For example, on 27 August the Manager of Opposition Business said in the House that he had received a text message saying that the Member for Melbourne, had he been there, would have voted with the opposition on three divisions. On 8 April, the Leader of the House presented letters received from the Member for Clark and the Member for Mayo, who were not in attendance but wished to have their views on specific bills reported. The Committee considers it likely that, in a similar future situation, Members not paired and not in attendance would seek ways to ensure the House was made aware of their voting intentions or views on particular items of business.
Opportunities for Members
The term ‘parliamentary privilege’ refers to the special rights and immunities which apply to the House, its committees and its Members and which are considered essential for the proper operation of the Parliament. For example, Members are absolutely privileged from suit or prosecution in respect of anything they might say in the course of proceedings in parliament. The Committee notes that in future, if there were to be limited remote or in-person opportunities to participate, Members may be concerned about not being able to exercise parliamentary privilege for an extended period. The official video facility has provided an opportunity for some Members who were unable to travel to speak during recent sittings. The Speaker advised Members of his understanding that Members participating remotely in chamber proceedings would be protected by parliamentary privilege in the same ways as Members participating in the chamber in person.
The Committee also considers that, in a similar future critical situation, some Members may appreciate additional guidance or advice on ways to progress parliamentary business when not attending the Parliament in person, or if elements of the normal order of business are not available. One example might be how to provide a notice of a motion.
Another example relates to Petitions Committee business, for which there is usually time reserved on Monday mornings, during the period for consideration of committee and delegation business. Under standing order 209, after a petition is presented to the House, the Standing Committee on Petitions may refer a copy of the petition to the Minister responsible for the administration of the matter raised in the petition. The Minister shall be expected to respond to the referred petition within 90 days of presentation. Changes to the order of business on 23 March did not allow for consideration of Petitions Committee business. Subsequent sittings in April and May were not on Mondays. On Wednesday, 8 April and Wednesday, 13 May, a member of the Petitions Committee sought leave to present petitions and Ministers’ responses to petitions previously presented to the House. This avoided a delay in petitions being referred to the responsible Minister and responses being made available to the petitioner.
Parliament conducts its business, with the rarest of exceptions, in public. Despite the restriction on physical access to Parliament House and the public galleries in the chambers during the COVID-19 pandemic, public access to proceedings was maintained in other ways. The Parliament’s website provided live access to proceedings, and the official radio broadcast (shared with the Senate) continued. Question Time continued to be televised, and the Votes and Proceedings and Hansard records were published as normal. Similarly, public committee proceedings have been available to view or listen to on the Parliament House website.
Many members of the public access Parliament via the media. As detailed in Chapter 2, media representatives from the parliamentary press gallery retained access to viewing proceedings in person, albeit from a different location. Although the press gallery was closed to all media representatives with the exception of four photographers plus Auspic at any one time (one during divisions), media representatives could view proceedings at any time from the second floor enclosed galleries normally reserved for school visits. When noting the press gallery access changes in the House (along with restrictions to numbers of advisers and attendants in the chamber), the Speaker indicated that he was ‘very conscious of the need to limit the total number of people in the chamber at any one time’.
Public access to parliamentary proceedings is a critical element of parliamentary democracy. How this is facilitated during any potential future situation will depend at least partly on the medical advice at that time regarding physical distancing requirements as well as numbers of people that can be safely accommodated in a particular space.
Figure 3.1: View of the chamber and galleries, 23 March 2020
Question Time takes place, with only photographers present in the open galleries. Photo: Penny Bradfield/AUSPIC
Measured flexibility and contingency planning
The House recognised the exceptional circumstances of the global pandemic and the consequent human biosecurity emergency declaration made by the Governor-General. Through the resolution and change to standing order 47(c) on 23 March, the House provided itself with flexibility to change its operations as the need might arise, including when the House was not sitting. In speaking of the two motions on 23 March, the Leader of the House explained:
The unconventional aspects of today were required and necessary because of the extraordinary and unprecedented circumstances that have arisen by way of the health effects and subsequent economic and administrative changes that have arisen in response to the onset of the coronavirus in Australia ...
Although it is not possible to know each and every contingency for which our nation and our nation’s parliament will now need to plan, we do know that we need to plan for uncertainty ...
The operation of parliament, its endurance and resilience, has in large part been anchored in its flexibility within the known parameters of proper and necessary procedure to cope with and adapt to changed circumstances. Accordingly, these two motions are a measured and sensible approach designed to provide in the most tempered way the requisite degree of flexibility that may reasonably be required.
He also specified that the mechanism of agreement between the Leader of the House and the Manager of Opposition Business, with the concurrence of the Speaker, was meant to be facilitative rather than intending to exclude any Member, which would be unconstitutional.
In line with the ‘measured approach’ to any changes to procedures, the Leader of the House referred to the change to standing order 47(c) as one that ‘may be a necessary mechanism—again, one we would hope not to use, or to use only very rarely, but one that it is prudent to have available to the House’. In supporting the change, the Manager of Opposition Business also said it was ‘... once again, something that we hope won’t need to be used’.
The changes were made in the context of challenges that may face the House during the COVID-19 pandemic. The Leader of the House referred to the Governor-General’s human biosecurity emergency declaration, and noted that ‘it is possible that a human biosecurity emergency period could be extended beyond its initial three-month term’. He further stated:
... these changes are designed simply to provide a mechanism by which agreement between the Leader of the House and the Manager of Opposition Business, with the concurrence of the Speaker, might provide for the sort of flexibility we have observed today, by allowing for the alteration, for a period, of the standing orders, or orders to the extent that may become necessary to allow for the proper functioning of our parliament in what might be greatly changed circumstances, without being able to anticipate every single limiting circumstance that may arise while the period of biosecurity remains in force.
In his submission to the inquiry, the Manager of Opposition Business discussed the resolution of 23 March, reflecting:
... it is vital that the intention for this provision to be a temporary measure only is recognised – as a reflection of the unique and time-limited circumstances of the COVID-19 crisis. Such a provision should never be considered as a permanent inclusion in the Standing Orders. Any readers who interpret this temporary provision as some kind of endorsement for a future ‘virtual Parliament’ or similar would be very much in error.
Further, the Clerk expressed in her submission that a key consideration when adopting extraordinary measures is the length of time for which the measures might be in place. The ‘Agreement for Members to contribute remotely to parliamentary proceedings’ of 20 August applied only to the sittings of the House from 24 August to 3 September. The Committee considers that limiting the duration of any changes assists the House in reaching agreement to make pragmatic changes necessary to maintain operations in the short term.
The continuing review of the practical operations of the House is also illustrated by the series of statements by the Presiding Officers in relation to sitting and non-sitting periods. For example, the statement of 21 August regarding wearing of masks for 24 August to 3 September cited the increase in community transmission of COVID-19 in Australia since the previous sitting, together with medical advice, as the basis for a recommendation regarding mask wearing in Parliament House.
Figure 3.2: Sitting of 1 September 2020
The Prime Minister wears a mask as he leaves the chamber at the conclusion of Question Time. The attendant behind him is also wearing a mask. See also figure 2.3 for arrangements during Question Time on the same day. Photo: Penny Bradfield/AUSPIC
Arguably the most visible demonstration of how the House has anticipated and responded to the changing circumstances of the pandemic has been the introduction of remote participation in proceedings in the August/September sittings. After the 23 March sitting, measures were investigated in case remote participation by video conference technology should be required. The Manager of Opposition Business acknowledged the foresight of the preparations, which meant that the facility was available when it was required in late August.
As discussed earlier, the decision about remote participation had not been made lightly. The Manager of Opposition Business stated in his submission that ‘the presumption must always be that the House should sit in the way that it has always done – that is, in person, in Parliament House, in our nation’s capital.’ However, there was also agreement that there should be some limited provision for Parliament to function if unable to in Canberra. In the House Mr Burke described the resolution of 23 March as a ‘break‑glass’ option, which had then had to be hit. Mr Burke also referred to efforts by a working group to develop a proposal that might have enabled some Members to continue to attend Parliament in Canberra under strict restrictions, although the announcement of a quarantine requirement for Victorian Members led to the Opposition supporting a video link option.
Another of the House’s roles is in the making (and unmaking) of governments. The House has not had to undertake this role during the pandemic. If, for example, a federal election is held before the pandemic is under effective control, the House will need to consider how the opening of a new Parliament can be conducted safely, including any tests to the government on the floor of the House.
A multi-jurisdictional environment
The House of Representatives does not exist in isolation. The Presiding Officers of the House and the Senate have joint responsibility for the operations at Parliament House. On 26 August, the Speaker made a statement to the House about the medical advice that he and the President of the Senate had received about the wearing of masks. In the statement, the Speaker noted to the House that:
... the President of the Senate and I have advised you that all of our decisions regarding restrictions and actions since the beginning of the COVID-19 pandemic have been based on advice received from the Office of the Chief Medical Officer ...
To make it clear, we have followed the advice of the Chief Medical Officer at all times when it comes to measures being adopted in Parliament House.
The Presiding Officers also consulted other relevant Commonwealth officers and agencies, ACT Health and the parliamentary departments. At different times, individual state and territory governments have put in place requirements and/or restrictions for people travelling to and from specific jurisdictions, and these have had to be taken into account. Notably, on 6 August, the Speaker and the President of the Senate advised Senators and Members of a requirement by the Australian Capital Territory (ACT) for isolation or quarantine for 14 days for Members and Senators attending from Victoria. Included was advice from the Commonwealth’s Acting Chief Medical Officer, who wrote that travel to the ACT at this time ‘presents a significant risk to ACT residents, particularly those who work in Parliament House’ and also ‘a significant risk for Members and Senators and their staff from other jurisdictions’.
In summary, the experience thus far in 2020 has shown the importance of flexibility together with cooperation between major parties in the House to alter procedural arrangements. Having established the flexibility in the changes to standing orders on 23 March, the House has adapted arrangements as the course of the pandemic and the responding public health measures have changed across Australia.
The Committee notes the statement made by the President of the Senate on 24 August regarding border restrictions, quarantine and the movement of parliamentarians during the period.
The global COVID-19 pandemic presented unique challenges to the operation of Parliament House.
Members, Presiding Officers, clerks and parliamentary officials together formulated a series of time-limited responses that allowed Parliament to continue to perform its essential functions of debate, scrutiny and legislative activity. The hard work of all involved should be commended.
The pandemic is not yet over—and it is possible that circumstances could arise in the future which would present new challenges. Therefore, it would be premature to draw firm conclusions regarding the novel measures put in place during 2020. The Committee notes the measures adopted during the pandemic were not intended to remain in place when the normal operation of Parliament resumes.
However, in general, the measures put in place should be viewed as a broadly successful and proportionate response to the specific challenges presented by the COVID-19 pandemic in 2020. The House put in place practical arrangements in the chamber, including large numbers of pairs, physically distanced seating and other measures to help prevent transmission. The video facility allowed Members unable to travel to Canberra to participate in proceedings.
The novel adjustments made to the operation of the House during the period covered by this report and beyond warrant further study once the pandemic is over.
During a statement to the House on 24 August, the Speaker noted the historic events and captured the importance of both ongoing adaptation and collaboration for the House to continue to operate effectively for Australians:
As we know, over the course of this year the House has been adapting to the changing circumstances, as have all Australians, as a result of COVID-19. No doubt we will continue to adapt ...
… members would recognise this is an unprecedented period in the life of the House and we’re all working together to enable the House to meet and conduct its essential business on behalf of the Australian people.
Figure 3.3: The difference a year makes – Question Time in August 2019 and March 2020
Question Time on a typical sitting day in 2019 (19 August). Photo: AUSPIC
Question Time on 23 March 2020. Photo: Penny Bradfield/AUSPIC
Maintaining all of the core functions of the House over time is vital. The Committee considers the following principles to be key to the House successfully responding to a pandemic or other critical situation:
maintaining the ability to meet quorum requirements so the House can play its part in the making and changing of laws
enabling Members to represent their electorates and participate in debate and voting
providing opportunities for scrutiny of government
providing for the formation of a new government if required
recognising that some opportunities are provided only when the House sits
maintaining flexibility to change as the critical situation unfolds
limiting the duration of extraordinary changes to procedure to the period of the situation
maintaining public access to proceedings.
The Committee commends all involved for collaborating and adapting to different arrangements, to ensure that the House could sit during this pandemic and that its work could continue. This includes not only Members from all sides (and their staff) but also the professional staff at Parliament House. The Committee recognises the differing effects of the pandemic on individuals, including Members. These can include personal or family health vulnerabilities related to exposure to the virus, formal travel restrictions and flight availability related to geographical location of electorates and changes to the way their work can be carried out due to restrictions.
The Committee recognises that any future pandemic or other ongoing critical situation affecting House operations would have different characteristics to what has been experienced in 2020. The makeup of the House and technological norms could well be different. Nevertheless, just as many people this year have looked back to the influenza pandemic of 1919, future Members and parliamentary staff will turn to 2020 and ask how the House met operational challenges. Urgent yet cautious decision-making has been required to put in place extraordinary procedures and practices this year. Modifications have been necessary as the pandemic has evolved. As we near the end of 2020, this pandemic is still with us. The Committee is confident that the House will continue to adapt to any further challenges posed by COVID-19, and that Parliament will continue to serve the Australian people well.
Ross Vasta MP
12 November 2020