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Chapter 2 The reforms – an overview

2.1                   The Agreement for a Better Parliament: Parliamentary Reform (the Agreement) that was entered into following the uncertain result of the general election of August 2010 triggered a range of procedural reforms in the 43rd Parliament. On the second day of the Parliament many of the reforms were implemented formally, through amendments to standing orders, adoption of a sessional order, and a resolution of the House.[1] Some changes were less formal and could be accommodated as matters of practice or simply as being within the discretion of the Speaker.

2.2                   This chapter outlines the reforms and their implementation. The Committee does not provide detail: that was a major component in its first report.[2] Rather, this chapter provides an overview of the reforms to introduce the analysis in the following chapters. In these later chapters the Committee assesses the effectiveness of the reforms—after almost two years of operation—in meeting their objective.

2.3                   After discussing the objective of the reforms, the chapter considers the following areas:

The objective of the reforms

2.4                   The Agreement was based on twin principles—confirming each of the 150 Members of the House as the ‘foundation blocks’ of Australian democracy, and increasing the authority of the Parliament in its relationship with the Executive[3]—and its stated objective was to ‘increase the authority and opportunities for participation for all MPs’.[4]

2.5                   When proposing the amendments to standing orders to reflect the Agreement, the Leader of the House, described the package of amendments in clear terms:

It represents a transfer of power and influence in this place from a concentration in the executive, to bring a focus on the contribution that the 150 members of the House of Representatives can make.[5]

2.6                   The following paragraphs outline the various changes and their implementation.

Role of the Speaker

2.7                   The second clause of the Agreement referred to an ‘Independent Speaker’, asserting the independence of the Speaker’s role from Government, and the power of the Speaker to enforce the standing orders. The impartiality and powers of the Speaker in enforcing standing orders, conventions and behavioural standards has long been considered crucial to the effective operation of the House.[6]

2.8                   Unlike Speakers of the United Kingdom House of Commons, the Speaker of the House has usually retained his or her party affiliation after election as Speaker.  Nevertheless, Speakers have generally been regarded as striving to maintain their independence and impartiality in enforcing the rules of the House. ‘This [practice] provides a Speaker who is politically affiliated but who is required to be impartial in the Chair, rather than a Speaker who is both independent and seen to be independent.’[7]  

2.9                   The Agreement proposed that the Speaker and Deputy Speaker be drawn from different political parties and that they not attend their respective party room meetings. It also proposed that the Speaker, Deputy Speaker, and Members of the Speaker’s Panel—when occupying the chair—be paired for divisions.[8] These proposals were not taken up in amendments to standing orders and the provision on pairing has not been implemented: it was the matter of extensive public debate and doubt was raised about the constitutionality of any formal pairing arrangement.[9]

Selection Committee

2.10               A House Selection Committee has operated, traditionally, to determine the order of business for committee and delegation reports and private Members’ business on sitting Mondays.[10] However, in the 42nd Parliament, the Government and Opposition Whips took on this responsibility in their own right, although still guided by standing orders.[11]

2.11               In line with the greater emphasis on private Members’ participation, the Agreement proposed the re-establishment of a Selection Committee, with significantly wider powers than previously.  ‘New’ standing order 222 implements this intention.[12] The Speaker chairs the Committee which comprises: the Speaker, or in his/her absence the Deputy Speaker, the Chief Government Whip or their nominee, the Chief Opposition Whip or their nominee, the Third Party Whip or their nominee, three government Members, two opposition Members and two non-aligned Members.[13]

2.12               As well as determining the order of committee and delegation and private Members’ business, the Committee can now recommend items of private Members’ business to be voted on, refer bills to relevant standing or joint committees for further consideration, and set speaking times for second reading debates.[14] A bill may be referred to a committee on the recommendation of one member of the Selection Committee.[15]

Question Time

2.13               Question Time plays an important role in the House’s ability to scrutinise Executive Government[16] but, for many years, its effectiveness has been questioned and its combative nature criticised. The Leader of the House recognised these difficulties:

Question time is the public face of the parliament and is often the Australian community’s only perception of the workings of parliament. The adversarial nature of question time has thereby contributed to a perception that parliament is purely combative. The government is committed to ensuring that question time portrays a more balanced view of the workings of the parliament.[17]

2.14               The Agreement proposed measures to address these issues and improve the content and conduct of Question Time. Time limits were placed on both questions (45 seconds) and answers (4 minutes);[18] answers were required to be ‘directly relevant’ to questions[19] (rather than the previous requirement of  ‘relevant’); and the Speaker was urged to rigorously apply existing standing order provisions on the content of questions.[20] Additionally, points of order on relevance were limited to one per question[21] and the use of notes was discouraged.[22] The Agreement suggested that Question Time conclude no later than 3.30pm, ‘enabling 20 questions each day in the normal course of events’.[23]

2.15               In February 2012, the standing orders were amended to reduce the time limits to 30 seconds for questions and 3 minutes for answers, thus allowing question time to conclude by approximately 3.10pm.[24]

2.16               The Agreement also proposed that the Leader of the Opposition or their delegate be permitted to ask one supplementary question each Question Time. However, as this Committee commented in a previous report, the opportunity to ask supplementary questions already existed in the standing orders although it had not been used since 1998.[25]

2.17               Standing order 101(b) states that the Speaker may allow supplementary questions at his/her discretion.[26] On 20 October 2010 the then Speaker, Mr Jenkins, set out his views:

… they need not be asked by the member who has asked the original question and may be asked either by the Leader of the Opposition or a member who appears to have been delegated by the Leader of the Opposition to ask the question, and I note that a supplementary question may be asked by a member other than the member who has asked the original question in a number of other jurisdictions; they should not contain any preamble, and they must arise out of, and refer to, the answer that has been given to the original question.[27]  

2.18               In February 2012 the new Speaker, the Hon Peter Slipper, clarified the practice he would follow. He proposed to allow five supplementary questions and impose time limits of 20 seconds for questions and 1 and a half minutes for answers.[28]

2.19               To increase the opportunity for all Members to participate in Question Time, the Agreement proposed a proportionate allocation of questions to non-aligned Members.[29] In November 2010, the Leader of the House indicated that the government would facilitate this:

During each question time, after five questions have been asked and answered, the call would ordinarily be given to a government member to ask the sixth question. In order to ensure that the commitment in the agreement is implemented in full, if at that point—that is, after the fifth question—a non-aligned member rises to seek the call, the Chief Government Whip has asked that no government member seek the call.[30]

Opportunities for private Members

Time for private Members’ business

2.20               The major aim of the reforms was to increase opportunities for private Members[31] to participate in the House. The Agreement proposed that the time for private Members’ business on Mondays in the Chamber be increased from 1 hour to 3 hours and 45 minutes and in the Federation Chamber from 35 minutes to 2 and a half hours.[32] The amended standing orders implementing the reforms increased the hours even further so that 3 and a half hours have been allocated in the Chamber and 5 hours in the Federation Chamber.[33]

Voting on private Members’ bills

2.21               The opportunity for private Members to introduce bills into the House has always existed. However, due to the prioritisation of Government business it has proved difficult for private Members to have proposed legislation debated and voted on.[34] The Agreement proposed that time be allocated during Government Business time in the Chamber for private Members’ bills to be voted on.[35] The Leader of the House has been facilitating this proposal in practice by moving regularly to suspend standing orders to enable private Members’ bills to be called on and voted on during Government business time, in accordance with recommendations of the Selection Committee.

2.22               This reform has lifted the profile of private Members’ bills and their potential impact.

Other opportunities for private Members

2.23               Apart from increased time for private Members’ business, the reforms have substantially increased other opportunities for private Members to participate in the work of the House, and to raise and debate matters of their choosing.

2.24               Traditionally time has been allocated for Members to discuss Matters of Public Importance (MPI) on Tuesdays, Wednesdays and Thursdays following Question Time and after the presentation of documents and ministerial statements.[36] In the previous Parliament up to one hour was available for MPIs. Under the Agreement, the time was set at 1 and a half hours, and the MPI was to directly follow Question Time to provide greater prominence for the discussion. The Agreement also provided that a ‘proportionate share of Matters of Public Importance be allocated to all non-Government Members.’[37] 

2.25               Members’ 90 second statements had originally taken place in the House on Mondays for 15 minutes before Question Time.[38] In the 42nd Parliament this period was moved to the Federation Chamber and took place on Monday evenings.[39] The Agreement proposed that 15 minutes be allocated in the Chamber prior to Question Time every sitting day for 90 second statements.[40]

2.26               The adjournment debate at the end of a sitting day has long been seen as an opportunity for private Members to raise issues of concern to them: it is exempt from the customary requirement for relevance to the question before the House.[41] Under the Agreement, time for the adjournment debate in the Chamber was to be extended (from thirty minutes) to one hour on Monday and Tuesdays. The amended standing orders facilitated this, and also provided for a one hour adjournment debate on Wednesdays.[42]

The House committee system

2.27               The parliamentary committee system enables private Members to focus on particular issues of current interest, improving their understanding of issues and facilitating public participation in the legislative process.[43] House of Representatives committees have enjoyed a reputation for bipartisan and cooperative work. They enable Members to have direct input into policy development[44] and play a significant role in scrutinising government administration.[45]

2.28               In June 2010 this Committee inquired into the House committee system and made a number of recommendations.[46] The changes to the committee system that were proposed in the Agreement reflected some of these recommendations and included:

2.29               The Agreement also provided for a maximum of four supplementary members (increased from two in previous parliaments) to be appointed to a committee for the purposes of an inquiry with full participatory rights, other than voting.[48] This would be expected to enable Members who wish to participate in a particular inquiry to do so.

2.30               The Agreement proposed that the Chair of the Joint Committee of Public Accounts and Audit be either a non-Government or a non-aligned Member.[49] This reform was augmented on implementation, with the amended standing orders also providing that the Chair of the Standing Committee on Regional Australia need not be a Government Member.[50] 

2.31               Traditionally, committee Chairs have been able to speak in the House about committee work only when presenting committee reports.[51] However, the Agreement proposed that committee Chairs be able to make short statements during private Members’ business time, to inform the House of new inquiries. Now provided for in the standing orders, these additional statements by Chairs or Deputy Chairs are significant opportunities for committees to raise awareness of their work, to attract contributions to their inquiries and so, possibly, to strengthen their inquiry processes and reports.[52]

2.32               As mentioned in paragraph 2.12, the Agreement proposed the Selection Committee have the power to refer bills it considers controversial, or requiring consultation etc., to committees to ensure greater scrutiny of proposed legislation.[53] The effect of this change will be considered further in chapter 5.

2.33               In its report on the committee system in June 2010, the Committee expressed concern over the often lengthy delay in government responses to committee reports.[54] Although the Agreement did not take up the Committee’s recommendation on this issue in full, it did require the government to respond to committee reports within six months and provided a mechanism for greater ministerial accountability if this deadline was not met.[55] The corresponding resolution proposed by the Leader of the House and adopted by the House on 29 September 2010 stated that, if a government response was not delivered within six months of the tabling of a committee report, the relevant Minister would:

2.34               If a dispute arises between a committee and the government over the delay in a response, provision was made for the issue to be referred to the Auditor-General to assist in resolving the matter.[57]

Consideration of bills

Speaking times

2.35               The Agreement proposed that the time limit for speakers during the second reading debate be reduced from 20 to 15 minutes.[58] This reform was introduced through amendments to standing order 1 and applied the 15 minute limit to all Members excepting the mover and the main Opposition speaker, on government bills; or to the mover and the main Government/Opposition speakers on private Members’ bills.[59]

2.36               The Selection Committee could further reduce the speaking time allocated to each Member if the bill was not considered controversial by the Committee.[60] The Selection Committee could also limit speaking times, by agreement, when a large number of Members wished to speak on a bill to enable as many Members as possible to participate.[61] These proposals were implemented by standing order 222(a)(iv), which simply provides that the Selection Committee may, subject to standing order 1, ‘set speaking times for second reading debates’.

Questions during second reading debate

2.37               This Committee recommended in 2006 that time be allocated for questions during second reading speeches.[62] The stated intention was to facilitate more meaningful debate on bills. This recommendation was reflected in the Agreement which proposed that the Speaker and the Selection Committee consider and potentially ‘trial’ allowing five minutes for questions at the end of Members’ second reading speeches.[63] The proposal was subsequently implemented through sessional order 142A which allows for each Member who has made a second reading speech on a government bill to then be questioned for up to five minutes (30 seconds for a question, 2 minutes for the answer).[64] However, the Member is not obliged to take questions and the standing order does not apply to a Minister’s speech or speech in reply, or to the main Opposition speaker’s speech on a bill.[65] So far, this opportunity to question Members has not been taken up.[66]

Other procedural reforms

Acknowledgement of country

2.38               The Agreement proposed that an ‘acknowledgement of country’ be incorporated into the daily opening proceedings of the House.[67] This formally demonstrates the House’s respect for traditional owners of the land on which it meets.[68]

Repeating a division

2.39               The Agreement proposed that the standing orders be amended to allow for a vote to be repeated, following a suspension of standing orders, if a Member accidentally missed a division in the House.[69] Previously a division could only be repeated if confusion had occurred over the numbers reported by the tellers.[70]

2.40               The Government sought to implement this, along with the other amendments proposed on 29 September 2010, but proposed that ‘the House divide again’ rather than that the repeated division occur after a successful suspension of standing orders.[71] The Opposition successfully moved an amendment that would require the suspension of standing orders.[72]

2.41               As the Committee explained in a previous report, this has the potential to make a repeated vote difficult to achieve:

The amendment had the effect that in order to recommit a vote which could be passed by a simple majority in the House, there must first be a suspension of standing orders which, when moved without notice, can only be carried by an absolute majority (currently 76 votes). That is, the votes required to recommit a vote may be greater than the numbers required to pass the vote, when the vote is retaken.[73]

Non-procedural reforms

2.42               The Agreement also included proposals for non-procedural reforms aimed at ensuring adequate resourcing to support parliamentary functions, increased transparency and accountability and enhanced parliamentary standards.

Parliamentary resources

2.43               A number of proposals in the Agreement directly relate to the resourcing of the Parliament, and particularly the House of Representatives, including:

2.44               Under the Agreement a PBO was to be set up to provide independent financial analysis of policy costings to all Members of Parliament. A Select Committee of the House of Representatives was to be established to determine the structure, resourcing and protocols for the intended PBO.[75] The Joint Select Committee on the Parliamentary Budget Office was established in November 2010 and presented its report on 23 March 2011.[76] The PBO was subsequently established with the passing of the Parliamentary Service Amendment (Parliamentary Budget Officer) Act 2011 in December 2011 and the Parliamentary Budget Officer appointed on 23 May 2012.[77]

2.45               In its report into the committee system, this Committee expressed concern over levels of funding and resourcing for the House of Representatives Committee Office.[78] The Agreement proposed that the Speaker arrange an external review of the staffing levels of the Committee Office aimed at determining the resourcing levels required to ensure continued adequate support for the House committee system.[79]

2.46               To address broader budgetary concerns, the Committee also recommended in its 2010 report on the committee system the establishment of a House Committee on Appropriations and Staffing.[80] The Agreement, in effect, proposed that this recommendation be implemented in its entirety, requiring that the Appropriations and Staffing Committee be chaired by the Speaker and determine budgetary estimates for the House of Representatives.[81] Standing order 222A established the House Appropriations and Administration Committee, with the responsibilities set down in the Agreement.[82]  Additionally the Liaison Committee of Chairs and Deputy Chairs was to report to the Appropriations and Staffing Committee on committee activities and resource levels.[83]   

Enhancing parliamentary standards

2.47               The Agreement also addressed issues regarding parliamentary standards, proposing that a Parliamentary Integrity Commissioner be appointed to advise Members on a range of ethical matters.[84] The Commissioner would also be responsible for upholding a proposed formal Code of Conduct for Members of the House and Senate.[85] On 23 November 2010, on the motion of the Leader of the House, the House referred to the Standing Committee of Privileges and Members’ Interests an inquiry into a code of conduct for Members of Parliament. The terms of reference included consideration of the role of a Parliamentary Integrity Commissioner.

2.48               On 23 November 2011 the Privileges and Members’ Interests Committee reported to the House. That Committee decided to present the work of the inquiry as a discussion paper rather than a report. The discussion paper considers various aspects of a code of conduct including:

2.49               In this chapter the Committee has outlined the principal reforms to the operation of the House and the nature of their implementation. In the following chapters it considers their impact.