Chapter 16 - Committees
Joint committees
Joint committees are committees
consisting of members of both Houses appointed by both Houses. They are
established where it is considered that matters should be the subject of
simultaneous inquiry by both Houses.
Joint committees have some potential difficulties in a bicameral
legislature. In the Australian situation, in which one House is rigidly
controlled by the ministry, the use of joint committees tends to prevent the
Senate exercising a review and second opinion function and thereby subvert the
concept of bicameralism. The effect is worse when there is unequal
representation of the Houses; many of the joint committees on which senators serve
(see Appendix 8) have unequal numbers of senators and members. Their value to
the Senate must, on that ground alone, be queried. (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.)
The
Constitution does not mention joint
committees and, by referring in section 49 to
the powers, privileges and immunities of each House, may exclude joint
committees from the inheritance of the powers, privileges and immunities
provided by that section. For this reason,
when the Parliament contemplated the establishment of joint committees in 1913
to examine public works proposals and government accounts, it was thought to be
necessary for them to be established by legislation so that the committees
could, among other things, be empowered to take evidence on oath. (The doubt
about the legal status of joint committees was cleared up by the Parliamentary
Privileges Act 1987: see Chapter 2, Parliamentary Privilege.) The establishment
of joint committees by statute, however, brought with it further difficulties. The inclusion in
statutes of provisions relating to the functions, composition, powers and proceedings
of the committees may make their operations justiciable. In the case of the
early joint statutory committees, the Public Works and Public Accounts
Committees, the enabling statutes make provision for such details as the
quorums and voting procedures of the committees. This may mean that the
operations of the committees are vulnerable to legal challenge (in this connection,
see Corrigan v Parliamentary Criminal Justice Committee 2001 2 Qd R 23; although the matter
there raised was held to be non-justiciable, other actions by a committee under
statutory authority may be amenable to judicial review). The inflexibility of
providing parliamentary procedures by statute also gives rise to difficulties.
An example is a legal opinion given in respect of the Public Accounts Committee
in 1982 which supported the view, rejected by the Senate, that the committee
did not need the permission of the Senate to meet while the Senate was sitting,
notwithstanding a general prohibition to this effect in the Senate standing
orders. (Report of Standing Orders Committee, October 1983, PP 117/1983,
pp 1-4; 1/3/1984, J.687.)
The difficulties generated by the early models of statutory committees
have been ameliorated to a large extent by the adoption of a different approach
to statutory committees in later models. In these models, committees are
established by statute and provisions for membership and committee functions
are contained in the statute. The statute also provides, however, that all
matters relating to the powers and proceedings of the committee shall be
determined by resolution of both Houses. This approach reduces the matters
relating to joint committees that may be justiciable and reserves for the
Houses the appropriate task of determining the powers and proceedings of their
committees which are therefore probably not justiciable.
It is apparent that notwithstanding their problematic character, joint
committees will continue to be used. There is now a significant group of joint
statutory committees whose role is to monitor the operations of sensitive
agencies or complex areas of the law. The joint committees on which senators
serve are:
Joint
statutory committees
Australian Commission for Law Enforcement Integrity
Australian Crime Commission
Broadcasting of Parliamentary Proceedings
Corporations and Financial Services
Intelligence and Security
Public Accounts and Audit
Public Works
(see Supplement)
Joint standing committees
Electoral Matters
Foreign Affairs, Defence and
Trade
Migration
National Capital and External Territories
Treaties
(see Supplement)
By convention,
joint committees follow Senate standing orders where their statutes or
resolutions of appointment are silent. Procedures applying to joint committees
are therefore referred to throughout the remainder of this chapter under
appropriate headings.
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