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University of New South Wales Law Journal |
[3] Reminiscent of the Westminster system, a Speaker presides over the chamber when it is sitting and the House retains the concept of committee of the whole. However, the transition from one phase of Bill consideration to the other is now much more seamless, and the House does not feel the need to transact business in the absence of the Speaker, who was traditionally the monarch’s person. Furthermore, there is now much more gender equity in the membership of the House and the staff serving it, and the ethnic origins of both groups are now much more diverse, reflecting the multiculturalism of contemporary Australian society.
[4] Australians clearly and proudly based their governmental institutions in the Westminster parliamentary tradition of responsible executive government. We take great pride in the fact that our federation was forged not by armed conflict but by consultation with the people at the plebiscite and ballot boxes. The Australian Constitution (‘Constitution’) provides that the powers, privileges and immunities of the Houses, their members and committees are to be, until declared, those of the UK House of Commons, its members and committees as at 1 January 1901. The standing orders of the House, and its many customs, conventions and practices, still reflect those of the UK Houses of Parliament.[1] For example, Bills go through three stages and are read three times. A member seeking to take a point of order during a division must hold papers over his or her head in order to be seen by the Speaker.[2] This practice echoes the former practice of the House of Commons, whose Serjeant-at-Arms retained top hats for the same purpose.
[5] Even though the participants of the constitutional conventions in the 1890s took considerable inspiration from the Westminster tradition, there was a quite conscious global search to identify the most appropriate elements of other systems of government for the new nation.
[6] The American Civil War was fresh in the minds of the framers of the Constitution. Canadians had federated in 1867, with a Senate and a House of Commons. Our formula included a Senate designed to preserve more strongly the rights of the States. However, the house of the people was called the House of Representatives rather than the House of Commons. At the Adelaide Convention on 23 March 1897, there were many references to the impact of international influence on the minds of those drafting the Constitution. Edmund Barton indicated that an elected Governor-General would bring the new nation nearer to the condition of the South American republics.[3] Foreshadowing the adoption of the phraseology in the Constitution recognising the concept of responsible government, Barton indicated that he did not want his boots made in Germany, and that he did not want his Constitution made in Switzerland.[4] He thought that British forms of government, as adopted and adapted, were the best fitting. His boots clearly had always been made in Britain.[5] Yet, Sir Richard Baker, who was to become the first President of the Senate, responded: ‘I want my boots made where I find they fit me best’. He believed that it was possible to learn lessons from other countries, and pointed to federations in Germany, Switzerland, the United States (‘US’) and to a limited extent in Canada.[6]
[7] The House has also shown that it is prepared to adapt its practices and give them a more Australian flavour. Examples include the changes to financial procedures and streamlining of the legislative process in the 1960s; the abolition, in the 1980s, of the office of Chairman of Committees; and the need for the Speaker to leave the Chair during consideration of the details of a Bill.
[8] Question
time retains paramount importance in the daily routine of the House. As a
result, during that period, all ministers are
expected to be present unless
sick, overseas, or otherwise engaged in urgent public business. In 1994, the
House agreed to a sessional
order to provide for a roster of ministers in
question time. This practice followed the UK model, and the Prime Minister only
attended
on the first and last sitting days of the week. The UK model usually
facilitated short responses to many questions; its application
in Australian
practice saw few questions with long responses. During its operation, the roster
did not receive universal support.
The opposition frequently found that a
minister who was the subject of a lively topic was not rostered on for
appearance on a day
when interest was intense. In these situations, they would
move a suspension of standing orders (unsuccessfully) to require the attendance
of that minister.[7] There
was also a belief that the Prime Minister should be available for questions
every sitting day. With a change in government,
the sessional order providing
for the roster was not renewed in subsequent
Parliaments.[8]
[10] The committees operate in two major spheres. The bulk of their work is related to ongoing major conceptual inquiries. In this regard, they travel throughout Australia, thus taking the House in part to the people of the country. Committees give citizens the opportunity to interact personally with the formal mechanisms of the legislature. They add to the body of knowledge of the nation, and enrich community and academic learning of the nation on significant policy matters. For example, the 1977 report of the Foreign Affairs and Defence Committee on the Middle East[12] was included on university reading lists. The 1993 committee report Biodiversity: The Role of Protected Areas[13] was included in a publication by the University of Chicago. The report of the Standing Committee on Environment, Recreation and the Arts, The Injured Coastline: Protection of the Coastal Environment,[14] has been accepted as a teaching standard at tertiary level, and is linked to the website of a higher learning institution. Similarly, the recent report of the Standing Committee on Employment, Eduction and Workplace Relations, Shared Endeavours: Employee Share Ownership in Australia,[15] is being utilised as a university teaching resource. The report by the Standing Committee on Environment and Heritage, Co-ordinating Catchment Management,[16] was described in a recent edition of Habitat, the publication of the Australian Conservation Foundation, as a pivotal report.[17] The second major function of committees is to enhance and enrich the legislative process. Bills before the House can be sent to a committee for consideration and an advisory report.[18] Members quite frequently, during presentation of a committee’s advisory report on a Bill or in subsequent debate on the Bill in the chamber or the Main Committee, comment on the value of conducting inquiries into Bills in producing clearer and more effective legislation.[19]
[11] Not every Bill is subject to this extra scrutiny, but the Bills which are referred for inquiry usually have sensitivities, whether in relation to the subject of the Bill itself or in relation to the development of the Bill. No Bill inquiry illustrates the enrichment of the legislative process better than the very first inquiry into a Bill by an investigative committee of the House. In May 1994, the Standing Committee on Legal and Constitutional Affairs presented its advisory report of its inquiry into the Crimes (Child Sex Tourism) Amendment Bill 1994 (Cth).[20] The aim of the Bill was to deter sexual abuse of children outside Australia by Australian citizens and residents, by making the abuse a sexual offence punishable in Australia.[21] The Bill had the support of the Standing Committee of Attorneys-General. The subject of the Bill is an emotive one to say the least. The committee conducted an intensive investigation of the Bill over four weeks and produced a detailed report in which it made 37 recommendations, most of them proposing changes to the Bill itself. After the first public hearing of the inquiry, the Attorney General and the Minister for Justice issued a press release rejecting evidence presented to the committee that the Bill would be unworkable and ineffective. The Ministers also took the unusual step of criticising the committee – which, after all, was chaired by a member of their own government party.[22] Most of the committee’s recommendations (32) were accepted by the government and given effect as detailed amendments to the Bill.[23]
[12] The reputation of House committee inquiries into Bills was established, and they have continued to produce advisory reports on Bills through subsequent Parliaments. The most recent example occurred with the Intelligence Services legislative package in 2001. The Bills were considered by a joint committee, and 77 amendments were made following the committee’s report.[24] Members speaking in the House paid tribute to the committee system, to the bipartisan approach to the particular committee exercise and to the ministers concerned.[25]
[13] Maintaining
the accountability of the executive government to the Parliament and the people
is one of the major functions of
the House, and the committees provide a vital
element in performing this function. On 28 February 1994, the Standing Committee
on
Environment, Recreation and the Arts presented its report on the
Auditor-General’s efficiency audit into the Community Cultural,
Recreational and Sporting Facilities
Program.[26] On the same
day, the Prime Minister informed the House of the receipt of an offer of
resignation by the Minister for the Environment,
Recreation and the Arts. The
Governor-General accepted the
resignation.[27]
[15] In effect, the Main Committee creates a stream of parliamentary consideration parallel to that occurring in the House of Representatives Chamber. It cannot be a forum for the initiation of parliamentary business, nor for final decision, but it can and does process everything in between. Legislation is considered by the Main Committee; for example, the 32 amendments agreed to in relation to the Crimes (Child Sex Tourism) Amendment Bill 1994 (Cth) discussed earlier were moved, discussed and agreed to in the Main Committee.[29] The proposed expenditures for the executive government and the Parliament are considered in the Main Committee. Members can make statements and adjournment speeches there. The Main Committee provides a venue for the consideration of committee reports, and government responses to committee reports. It provides a major alternative forum where private members can pursue the opportunity to air their points of view. The meeting place is in a purpose-designed location, much smaller than the Chamber. All members are members of the Main Committee, and its more intimate atmosphere leads to greater interaction in debate.
[16] The opportunity is taken from time to time to try techniques and procedures in the Main Committee as a precursor to their introduction into the Chamber. For example, the application of electronic communication between the Chair and advising staff was first trialed there. The Second Chamber report of the Procedure Committee, referred to above, gave expression to the ‘belief that the Main Committee is an appropriate laboratory for experiments which, if successful, might be extended to the Chamber’.[30]
[17] The Procedure Committee concluded that the proposition that the Main Committee might serve an additional useful function as a proving ground for innovation should itself be tested by trialing for twelve months a procedure enabling other members to intervene in members’ speeches. The Committee considered that this might encourage interactivity and spontaneity in debate.[31]
[18] The
Procedure Committee in July 2000 presented the following conclusions in its
evaluation of the work of the Main Committee:
[20] The Main Committee of the Australian House of Representatives has no readily apparent parallel in the parliamentary world. However, its activities have sparked much interest around the parliamentary world. The Second Chamber report of the Standing Committee on Procedure saw the Main Committee as a possible solution for problems experienced by other jurisdictions that were similar to those facing the Australian House of Representatives. Most parliaments appear to be facing the challenges associated with the increasing pressures upon parliamentary time. Members across the world appear to be seeking a balance between representative duties and family responsibilities. The potential application of Australian experience to other parliaments internationally was presented as an additional indicator of the Main Committee’s success.
[21] In a segment of the report headed ‘A Model for
Westminster’, the Procedure Committee cited the report of the Select
Committee on Modernisation of the United Kingdom Parliament. It suggested that
members consider that a body similar to the House
of Representatives’ Main
Committee may serve as a model for a solution to the House of Commons’
problems with legislative
overload.[33] The UK
Modernisation Committee did not, however, recommend a Main Committee in the
Australian style, stating that:
We are not at this stage advocating the introduction of a ‘Main Committee’ even on an experimental basis. It is a radical innovation which all Members will wish to consider with care, not only as to the principle but as to how it might work in purpose.[34]
In considering policy options, the government has taken careful account of national and international considerations. Among the latter, it is vital to note that trade flows, environmental concerns, human rights, to name only a few of an increasing array of such issues, can only be effectively managed and handled through international agreement. This means that treaties, the fundamental instruments of international law, are an increasingly important component of contemporary international relations and of Australia’s own legal development. Accordingly, the treaty-making system must be reformed and updated, so as to reflect this growing importance and influence on our domestic system in a way which will provide greater accountability to the treaty-making process.
This, for Australia, means that we must have an efficient domestic methodology for assessing the way proposed treaties meet our own national concerns. Parliament should be in a position to examine the considerations which are weighed by the government when it determines the need for Australia to take binding action.[37]
[26] Central
to this was the appointment of a Joint Standing Committee on Treaties. The
Committee’s terms of reference include
inquiring into and reporting
on:
[29] The Commonwealth Parliamentary Association is comprised of national and State/provincial legislatures in the Westminster tradition. It holds an annual conference and a number of seminars each year. While its annual conferences do not pass resolutions and its debates are not recorded verbatim, its work is carried out in more subtle ways. For example, it seeks to build capacity and knowledge of parliamentary institutions and practices through its sponsorship of workshops, seminars, educational programs and similar activities.
[30] Australia is also a member of the Asia Pacific
Parliamentary Forum (‘APPF’). The APPF is a loosely structured and
non-exclusive forum of national parliamentarians who participate in annual
meetings either as delegates of their parliaments or in
their personal
capacities. The APPF seeks to:
[32] Finally, Australia is a member of the Inter-Parliamentary
Union (‘IPU’). The IPU is a world organisation of parliaments
of
sovereign states, established in 1889. It works as a focal point for worldwide
parliamentary dialogue, concentrating on peace,
co-operation and representative
democracy. The IPU describes itself as supporting the efforts of the United
Nations (‘UN’),
whose objectives it shares, and the two
organisations work in close
co-operation.[42] At
biannual meetings, the IPU discusses a wide range of subjects and agrees to
resolutions. At the meeting in Jakarta in October
2000, the Inter-Parliamentary
Council decided not to pursue observer status at the UN, but suggested that the
General Assembly
request the UN Secretary-General, in consultation with member states and the IPU, to explore ways in which a new and formalised relationship may be established between the IPU, the General Assembly and its subsidiary organs, and to report thereon to the General Assembly at its resumed session in May 2001.[43]
[34] More specific intention was revealed in an interview with M Raymond Forni, President of the French National Assembly, in an article in The World of Parliaments,[45] the quarterly review of the IPU. M Forni gave expression to the proposal that the IPU could, over time, become the parliamentary arm of the UN, and be consulted by the General Assembly, the Security Council, and the Social and Economic Council. It could also make proposals to those bodies. In drawing a comparison between France’s grappling with the pace of globalisation, and the building of Europe, M Forni noted that globalisation did not concern parliaments specifically. Rather, it affects all national institutions alike, and very few contemporary questions are exclusively national. More than the sovereignty of states, sovereignty belongs to the people.[46]
[35] The proposal has been less than enthusiastically approached by the Australian Group of the IPU. The US Congress is no longer a member of the IPU. For the IPU to be regarded as the parliamentary arm of the UN in these circumstances would invite comparisons with the League of Nations following World War I. The Australian Group has expressed concern at rule changes proceeding along this path. It categorically stated that any delegation it sends to an IPU conference or specialised meeting is a delegation of individual members of Parliament that can never purport to represent the Australian Parliament under any circumstances.
[36] To the extent that a servant of the Australian Parliament
has a right to express a personal point of view, this was an entirely
practical
and appropriate course of action to follow. A major important consideration is
that, while there is a degree of continuity
of membership in Australian
delegations, this is not guaranteed. The Speaker frequently leads the
delegation. However, the House
and the Senate do not, in many instances, come to
a formal decision on many matters discussed at IPU meetings. Within the IPU and
the affiliated Association of Secretaries-General of Parliaments, Australia is
usually well-regarded as an honest broker and our
views are treated with a great
deal of respect. There have been expressions of support for Australia’s
position from a number
of other nations.
The individualism of the States after Federation is of as much interest to each colony as the free exercise of national powers is essential to the aggregation of colonies which we express in the term Federation.[47]
[39] Barton felt that Australians at the end of the 19th century were establishing a structure which would last in its substance for centuries if not for all time.[48] In the next century of our Federation, I would expect internal strengthening to be the focus of developments rather than a greater move towards internationalisation. In this regard, I expect the principal focus will be on the creation of new States, on the way in which our internal governmental structure is organised,[49] and on whether we continue to be a constitutional monarchy or move to a republic.
[40] Those who forged the Australian Constitution and those involved in its early development were clearly aware of the international environment in which representative institutions live and develop. The Australian House of Representatives was established with clear linkages to the UK House of Commons. For example, s 49 of our Constitution makes a clear and continuing direct link to the practices of the House of Commons as at 1 January 1901. In addition, standing order 1 of the House still currently provides (unlike the Australian Senate) that in all cases not provided for in the House’s standing orders, Commons practice is to be observed, ‘as far as can be applied’ unless other provision is made.[50] Under the current practice of the House, it is very rare for the House to resort to Commons 1901 practice. An instrumental step in this regard has been the consolidation of the practices of the two chambers of the Commonwealth Parliament in publications such as Odgers’ Australian Senate Practice[51] or the House of Representatives Practice.[52]
[41] In evolving as it has, the Australian House of Representatives has drawn on the experience of legislatures around the world. It has also blazed a unique path, inspired by its own experience and its expectations, and the expectations of the community it serves. Importantly, what has emerged as a distinctly and uniquely Australian institution now has its initiatives closely regarded by other parliaments. Most notable in this context is that a form of its Main Committee has been adopted by the legislature on which its procedures and practices were originally based, the UK House of Commons.
[42] However, the Australian
Parliament has also asserted that it will resist any moves that could be viewed
as a diminution of its
responsibility to an international organisation. While
remaining open to the benefits of globalisation, it has moved to assert the
sovereignty of the Australian people, as has been exemplified by its response to
the international treaty system and IPU initiatives
to forge a relationship with
the UN. It can well be said to have achieved a satisfactory balance of profiting
from the contemporary
global environment, while keeping closely in touch with,
and serving, the expectations of the Australian people as the nation commences
its second hundred years.
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