 |
Chapter 19 - Relations with the executive government
Ministerial accountability and censure motions
As has been noted
above, governments are formed by the party or coalition of parties which can
command a majority of votes in the House of
Representatives, and ministers are appointed
by the Governor-General on the advice of the leader of that party or coalition.
The termination of a minister’s
appointment is likewise effected by the Governor-General on the advice of the Prime Minister.
While ministers are neither appointed nor removed by the Senate, however, they
are accountable to it, that is, they are expected to account for their actions
and policies by, for example, answering questions, providing documents, and
appearing before committees. In 1984 the Senate demonstrated the importance
placed on accountability when it censured a minister for, among other matters,
“his refusal to explain his actions despite repeated questioning by the Senate”
(13/9/1984, J.1125).
Ministers have been censured for matters as varied as: misleading the Senate,
failing to answer questions on notice within the stipulated time limit,
maladministration of a department, attempting to interfere in the justice
system of another country, failing to declare an interest in a matter, for
“contemptuous abuse” of the Senate, and for refusing to produce documents in
compliance with an order of the Senate. The Senate has
insisted on ministers accepting full
personal responsibility for answers given on behalf of others, and ministers
have been censured on this basis (see, for example, 25/5/1989, J.1712; 10/5/1994, J.1641).
Although a
resolution of the Senate censuring the government or a minister can have no
direct constitutional or legal consequences, as an expression of the Senate’s
disapproval of the actions or policies of particular ministers, or of the
government as a whole, censure resolutions may have a significant political
impact and for this reason they have frequently been moved and carried in the
Senate. They provide a substitute to the usual inability, because of
ministerial control, of the House of Representatives to discipline a minister.
On 10 October 1996 (J.678) ç the Senate passed a resolution calling on the Assistant Treasurer,
Senator Short, and the Parliamentary Secretary to the Treasurer, Senator Gibson,
to explain apparent conflicts of interest
arising from their shareholdings. Those two office-holders subsequently
resigned. House of Representatives ministers said to be in the same situation,
however, escaped unscathed, and the Prime Minister then indicated that the code
of ministerial conduct would be reviewed as it was too restrictive of
ministers’ private interests. This incident provided evidence of the thesis
that ministers are held accountable in the Senate but not in the House of
Representatives to which the ministry is supposed to be responsible.
Almost all such motions have been expressed in terms of censuring either
individual ministers or the government. There have been no motions proposing
want of confidence in the government and very few expressing want of confidence
in particular ministers, none of which was successful. No motion of want of
confidence in a minister has been proposed since 1979 (24/5/1979, J.733-4) and the
practice now is to frame such motions in terms of censure.
Two censure motions adopted by the Senate in the early 1970s called for
the resignations of those to whom they were directed. One case involved a
minister (18/9/1974, J.195-7), and in the other the government was called on to resign (8/4/1974, J.93). The
government took no action in either case. Only two of the unsuccessful censure
motions moved since that time have included calls for resignation (25/8/1982, J.1023-4; 16/2/1988, J.476-7).
The Senate has
passed motions of censure on ministers in the House of Representatives
(see the list of successful motions below). Following the adoption of a censure
motion against the Prime Minister in 1992 the Senate passed a motion that the
censure resolution be communicated by message to the House of Representatives (5/11/1992, J.2966). On the
day after the Senate’s censure of a Senate minister in 1973 the House of
Representatives, on the motion of the government and voting on party lines,
passed a motion affirming confidence in that minister (4/4/1973, J.91-2, 93-4;
VP 1973-74/104-6).
While there are no
special provisions in the Senate standing
orders concerning censure motions, it is the usual practice for such motions to
be accorded immediate precedence or for the debate to be adjourned to a later
hour the same day (for an example of the latter practice see 25/8/1982,
J.1023).
Censure motions are
initiated either by giving notice of motion
or, more commonly, a motion is moved
pursuant to a contingent notice “that so much of standing orders be suspended
as would prevent Senator (. . .) moving a motion to provide for the consideration
of a matter, namely a motion to give precedence to a motion of censure of (. .
. )”. Upon the adoption of the suspension motion another motion is moved to the
effect that “a motion of censure may be moved immediately and have precedence
over all other business this day till determined”. The censure motion is then
moved. (See also Chapter 8, Conduct of Proceedings, under Suspension of
standing orders.)
A censure motion specifies the minister or other senator towards whom
it is directed and states the reason for the censure. The following is a
typical example of the form:
That the Senate censures the Minister
for Resources and Energy (Senator Walsh) for his deliberate misleading of the
Senate by selective tabling of documents and his refusal to explain his actions
despite repeated questioning by the Senate (13/9/1984, J.1125).
If a censure motion
contains a number of propositions the question may be divided. For
precedent see 18/9/1974, J.195-7.
Motions of censure and want of confidence may be amended. For example, on
14 August 1968, in response to an Opposition motion “That the Minister for
Repatriation lacks the confidence of the Senate”, the Leader of the Government
in the Senate moved an amendment which proposed that the words after “That” be
omitted and the following be inserted: “the Senate affirms its confidence in
the integrity and propriety of the Minister for Repatriation in the discharge
of his Ministerial duties. The Senate rejects the charge made against him of
interference in decisions of a Repatriation Tribunal. Presentation of so
serious a charge unsupported by acceptable evidence is a misuse of the forms of
the Senate”. The Opposition raised a point of order that the proposed amendment
was a direct negative of the motion and was therefore not in order. The Acting
Deputy President, Senator Wood, ruled that the amendment was in order (14/8/1968, J.158).
Censure motions
have been directed at private senators (31/5/1989, J.1762-3; 4/10/1989,
J.2083-5; 29/3/1995, J.3182-4; 2/10/1997, J.2618; 11/3/1998, J.3359-60; 19/3/2002, J.216-7 (a parliamentary
secretary acting in a non-government capacity); see Chapter 6 Senators, under
Conduct of senators).
It would not be
proper for the Senate to seek to censure a private member of the other House.
The Senate declared this principle in the context of a resolution granting
permission for senators to appear before the House of Representatives
Privileges Committee in an inquiry into unauthorised disclosure of joint
committee documents (7/3/2001, J.4043). The President has declined to grant
precedence to matters of privilege on the ground that the Senate may not
inquire into the conduct of a member of the other House, and the same principle
would apply to censure motions (17/5/1988, J.711; 19/9/1994, J.2151; 22/9/1994,
J.2219; see also statement by Senator Chamarette, SD, 30/3/1995, pp 2490-1).
This principle is apparently not observed in the House of Representatives (30/3/1995, VP 2011-2,
2013; 5/3/1998, VP 2772-4).
Ministers as ministers, however, may be censured, on the principle that as
ministers they are accountable to the Senate although they are members of the
House of Representatives (see statement by President Reid, SD, 23/10/1997, pp 7901-2). (See report of the United Kingdom House
of Commons Standards and Privileges Committee, HC 447 2003-04, for a contempt
found against a minister (the Lord Chancellor) in the other House.)
Contingent notices
have been given of censure motions directed at
specified ministers (28/3/1985, J.140; 22/5/1985, J.291; 19/8/1986, J.1144-5; 14/9/1987, J.20; 20/12/1988, J.1351). Following the
censure of a minister for failing to table certain documents in compliance with
an order of the Senate contingent notice was given of a motion which would
allow certain penalties to be imposed on the minister, including preventing him
from introducing bills (9/6/1994, J.1791). These contingent notices were not used.
Censure motions are
not the only weapon in the Senate’s armoury of accountability. They are often
accompanied by inquiries by the Senate into ministerial conduct (for inquiries
generally see Chapter 16, Committees; Chapter 18, Documents, under Orders
for the production of documents; and below for public interest immunity). A
Senate inquiry into a matter of concern, or merely the prospect of one, can
force a government to be more accountable. For example, following the
resignation of the Minister for the Environment, Sport and Territories, Mrs Kelly, over the sports
grants affair on 28 February 1994, the Opposition moved to establish a Senate select
committee to inquire further into the affair and matters relating to government
accountability. (Mrs Kelly resigned after an inquiry by the Auditor-General revealed that she had
not kept records of $30m in sports grants made from her office, and after
Opposition allegations of misuse of the grants for electoral manipulation.) An
amendment was moved to substitute for the select committee references to a
series of measures designed to ensure greater accountability. A further
amendment called for measures to strengthen the independence and capacity of
the Auditor-General. Both sets of amendments and the main motion were
negatived, the first amendment and the motion being negatived by equally
divided votes. It was thought that a further motion for an inquiry would pass
in the absence of some appropriate government action. The Leader of the
Government in the Senate then made a ministerial statement outlining a number
of measures which the government undertook to introduce, and to consider, to
improve accountability mechanisms, including a replacement for the Audit Act
(3/3/1994, J.1366-72).
Almost half of the
censure motions proposed in the Senate since 1968 have been successful, and
most of these have occurred since 1984. The following motions were adopted by
the Senate.
-
4/4/1973, J.91-2; 5/4/1973, J.93-4. The
motion was that the Attorney-General (Senator Murphy) did not deserve the confidence of the Senate because
of certain actions connected with alleged Croatian terrorism in Australia and the Australian
Security Intelligence Organisation.
-
8/4/1974, J.93. The motion
stated, inter alia, that “the Government’s attempt to assert that Senator Gair
had vacated his seat under section 44 or 45 of the Constitution on either 14 or
21 March 1974, and did not need to resign as originally intended, deserves the
gravest censure and the Government should resign”.
-
18/9/1974, J.195-7. The
motion stated that the Minister for Foreign Affairs (Senator Willesee) was deserving of
censure and ought to resign because of certain matters relating to the
departure from Australia of a Russian musician, the recognition of the Soviet
incorporation of the Baltic States, and foreign policy alignments. The question was, by
leave, divided, and the motion as it related to the Baltic States agreed to.
-
13/9/1984, J.1125. The
Minister for Resources and Energy (Senator Walsh) was censured for his deliberate misleading of the
Senate by selective tabling of documents and his refusal to explain his actions
despite repeated questioning by the Senate.
-
24/9/1987, J.123-4. The
motion censured the government for “ (a) its attack on the Senate’s
determination to exercise its Constitutional responsibilities; (b) proposing to
force through a Joint Sitting legislation which it has admitted needs
amendment; and (c) wasting taxpayers’ money by persisting with legislation
which would abuse personal privacy beyond limits acceptable to the principle of
democracy and individual rights sacred to the Australian community”.
-
19/11/1987, J.306-7. The
motion expressed “profound disapproval of the unparliamentary conduct” of the
Minister for Finance (Senator Walsh) during the course of the debate on the appropriation
bills.
-
24/2/1988, J.529. The motion
condemned the government “for its failure to protect the privacy of Australian
citizens”.
-
7/4/1989, J.1510-1. The
Minister for Resources (Senator Cook) was censured for improper alteration of the Hansard
record of an answer he had given in response to a question without notice.
-
25/5/1989, J.1712. The
Minister representing the Minister for Defence (Senator Richardson) and the Minister
for Defence were censured for their joint failure to provide an answer to a
question on notice within 30 days.
-
26/9/1989, J.2055. The
government was censured for its mismanagement of an airline pilots’ dispute.
-
4/10/1989, J.2083-5. The
government and its whips were censured for their actions in discouraging the
formation of a quorum in the Senate.
-
10/5/1990, J.54. The
Minister for Justice (Senator Tate) was censured for failing to meet the required
standards in the conduct of his office as a senior law officer of the Crown, by
interfering in the administration of justice in another country.
-
4/6/1991, J.1096. Senator Richardson, in his former
capacity as Minister for the Environment, was censured for his handling of the
matter of payment of money under an agreement to a timber processing firm.
-
12/9/1991, J.1509. The
government was censured for “its unjustified failure to comply with the
Senate’s resolution of 10 September 1991” to table a tape recording.
-
7/5/1992, J.2298. The
Minister for Transport and Communications (Senator Richardson) was censured for
allegedly misleading the Senate, attempting to interfere in the justice system
of the Marshall
Islands,
and failing to declare an interest as a minister.
-
5/11/1992, J.2966. The Prime
Minister was censured for remarks which he had made about the Senate, which
were characterised as contemptuous abuse. The Senate also
adopted a motion that the censure resolution be communicated by message to the House of
Representatives (5/11/1992, J.2967).
-
16/12/1993, J.1055. The
Leader of the Government in the Senate (Senator Evans) was censured for refusing to comply with an order of
the Senate to produce a document. The minister had declined to produce the
document on the grounds of confidentiality.
-
10/5/1994, J.1641. The
Minister representing the Minister for Administrative Services, Senator McMullan, and the Minister
for Administrative Services, Mr Walker MP, were censured for not complying with an order of the
Senate to provide documents. The ministers had not provided the information
requested on the grounds of commercial confidentiality.
On 8 and 9 June 1994 (J.1775, 1791) contingent notices of motion were given
which, noting that despite the censure the documents had still not been
provided, allowed for the
imposition of “penalties” on the Minister for Trade, Senator McMullan,
including preventing him introducing bills.
-
12/10/1994, J.2262-3. The
Minister for Transport, Mr Brereton MP, was censured for his negligent
administration of air safety.
-
31/5/1995, J.3327-8. The
Prime Minister, the Leader of the Government in the Senate, Senator Gareth
Evans, and the Minister for Primary Industries and Energy, Senator Collins, were
censured for misleading statements about the intended application of Aboriginal
land funds and entering into a secret agreement contrary to their public
statements about the matter (see also the judgment of the Federal Court and
other matters referred to in the report of the Select Committee on Certain Land
Fund Matters, November 1995, PP 346/95).
-
22/6/1995, J.3497-8. The
Minister for Communications and the Arts, Mr Lee, and his Senate
representative, Senator McMullan, were censured for failure to produce a
document in response to an order of the Senate (the document was produced on
27/6/1995, J.3545).
-
29/6/1995, J.3588-9. The
Minister representing the Attorney-General, Senator Bolkus, was declared to
be in contempt for failure to produce documents ordered by the Senate to be
produced.
-
30/8/1995, J.3738. The
Leader of the Government in the Senate, Senator Gareth Evans, was censured for remarks impugning the integrity of a
Western Australian royal commissioner and the counsel assisting the commission.
-
27/6/1996, J.436-7. The
Minister for Aboriginal Affairs, Senator Herron, was censured for giving misleading answers in relation
to funding of Aboriginal programs.
-
24/3/1999, J.612-13. The Leader of the
Government in the Senate, Senator Hill, was censured for not responding
properly to an order for documents relating to the Jabiluka uranium mine.
-
24/8/1999, J.1545-6. The
Minister for Forestry and Conservation, Mr Tuckey, was censured for inflaming rather than mitigating the
conflict over Western Australia’s regional forest agreement.
-
13/10/1999, J.1845-6. The
Minister for Family and Community Services, Senator Newman, was censured for
failing to produce a document on proposed welfare changes in response to an
order of the Senate.
-
10/4/2000, J.2584-5. The
Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, was censured for
failure to fulfil his ministerial responsibilities and provide leadership in
indigenous affairs.
-
19/3/2002, J.216-7. The Parliamentary Secretary to
Cabinet, Senator Heffernan, was censured for recklessly making unsubstantiated
allegations against a justice of the High Court, and the Prime Minister was
censured for not preventing Senator
Heffernan’s actions.
-
5/2/2003, J.1447-50. The government was censured
for deploying Australian troops to Iraq without United Nations authorisation and
without revealing to the Australian people the commitments on which the deployment
was based.
-
7/10/2003, J.2463-4. The Prime Minister was
censured over the Iraq war and the lack of evidence of the
claimed weapons of mass destruction in Iraq.
-
30/3/2004, J.3276-7. The Leader of the Government
in the Senate, Senator Hill, was censured for failing to comply with an order
for the production of documents relating to the pressure allegedly exerted upon
the Commissioner of the Australian Federal Police, Mr
Keelty, to change his statement on terrorism
and the war in Iraq.
-
21/6/2004, J.3574-5. The Leader of the Government
in the Senate, Senator Hill, was censured for failing to take seriously his
responsibility in relation to the abuse of prisoners in Iraq and to correct serious communications problems in his
office and the Defence Department contrary to assurances which were given after
the “children overboard” affair of 2001-02.
-
11/5/2005, J.614-5. The Minister for Immigration
and Multicultural and Indigenous Affairs, Senator
Vanstone, was censured for her failure to take
responsibility for the manifest failures of her department in relation to
detained persons.
- (See Supplement)
For a censure
motion not proceeded with when the minister concerned apologised for her
actions, see 28/3/1995, J.3166, SD, 29/3/1995, pp 2381-9.
In June 2000, in passing a bill which was regarded as essential to the
public interest, the Senate adopted a resolution noting the persistent failure
of the Minister for Regional Services, Territories and Local Government, Senator Ian Macdonald, to answer
questions relevant to the bill. (19/6/2000, J.2802)
Although two of the motions listed above were not couched in terms of
censure or want of confidence they had the same import as a censure motion. The
motion passed on 19 November 1987 expressed “profound disapproval” of a minister’s
behaviour, and the motion passed on 24 February
1988
stated that the Senate “condemns” the government. For the same reason, an
unsuccessful motion proposed that Senator Greenwood had “dishonoured the office of Attorney-General” (1/3/1972, J.887-8) has been
included in the following list of unsuccessful censure motions.
Unsuccessful motions of censure or want of confidence have been moved
on the following occasions: 15/8/1968, J.158-9; 19/8/1969 J.544; 20/8/1969,
J.546; 1/3/1972, J.887-8; 13/5/1975, J.642; 30/5/1978, J.205-6; 8/5/1979,
J.690; 24/5/1979, J.733-4; 14/11/1979, J.1038-9; 21/5/1980, J.1370; 9/4/1981,
J.200; 25/8/1982, J.1023-4; 7/3/1984, J.717-8; 8/3/1984, J.723; 8/5/1984,
J.833-4; 16/2/1988, J.476-7; 30/5/1988, J.775-6; 2/12/1988, J.123; 7/12/1988,
J.1263; 31/5/1989, J.1762-3; 5/10/1989, J.2096-7; 9/12/1991, J.1885-6;
17/12/1992, J.3422-3; 8/12/1993, J.943; 8/2/1995, J.2909, 2911; è9/10/1996, J.662-3, 667.
On several occasions unsuccessful amendments have been proposed to the
address-in-reply, seeking to include an expression of censure. See 20/5/1914, J.37; 3/6/1914, J.59-60; 20/3/1957, J.10-11; 28/3/1957, J.21-2; 25/11/1969, J.15.
If a censure motion
is moved before or during question
time, questions are usually called on or resumed in accordance with the routine
of business. A minister may ask for questions to be placed on notice, but it is
open to the Senate to order that questions continue (see below, under Questions
to ministers; for examples: 16/2/1988, J.476-7; 9/12/1991, J.1885-6; 30, 31/8/1995, J.3738-9,
3760-1).
Previous page | Contents | Next page
Website feedback: web.senate@aph.gov.au
Last reviewed 10 September 2010 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
 |
