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Personalities versus Structure:
the Fragmentation of the Senate Committee
System Anne Lynch*I should like to thank my fellow members on
this Committee for what I regard as the most impressive performance by a Senate
committee in the time that I have been in this place … This report is virtually
unanimous. On only one point of substance was there a disagreement, and this did
not follow party lines. How positive this statement would have been had
it been any chair's statement when presenting a series of Senate committee reports
on the goods-and-services tax. In fact, it was a statement by the Chair
of the then Senate Constitutional and Legal Affairs Committee, Senator James McClelland,
on 15 October 1974. At that time, such unanimous reports constituted the norm
for Senate committees—even though they were still in their infancy, were
conducting inquiries during arguably the most controversial period in the history
of the Australian Senate, and were dealing with highly-contentious policy questions,
on which the respective parties had polarised positions. The report in
question was on the most far-reaching changes to matrimonial law that this country
had ever seen: the Family Law Bill. But the same comment could have been made
about committee reports into such diverse subjects as death duties, capital punishment,
and a policy particularly beloved by the then government—a national compensation
scheme. Later reports of the same order, about which similar remarks could have
been made, included freedom of information legislation, plant variety rights and
a series of foreign affairs matters. A snapshot of dissenting reportsIn
preparing this paper, I sought statistics on the level of dissent reflected in
Senate committee reports, excluding those that might be regarded as housekeeping
or routine, for 1978—during the Fraser government, which held a majority
in the Senate at the time; 1988, half-way into the near-decade of the Hawke government,
and during the transition from the old parliament house to the new; and finally
1998—two years into the period of the Howard government. In 1978,
there were no minority or dissenting reports. In 1988, several dissenting reports
were published. In most cases, however, the breakdown was not on party lines,
and also included several addenda and reservations by individual senators or parties.
In one case, a government senator dissented along with three opposition senators,
while a further two involved opposition senators only. By 1998, in respect of
the primary evaluative committees of the Senate, the Legislative and General Purpose
Standing Committees, the trickle of dissent on each side had become a flood. It
is difficult to find any report on any but the most anodyne of subjects that has
not resulted in a splintering of views. This is especially true in respect of
legislation referred to the committees. The reports, both government and non-government,
tend to restate the policy of the respective parties, articulated well before
the matters even reach the relevant committees, and rarely address the detailed
provisions of the bills—much less suggest or recommend amendments. Structure
of Senate committeesMany explanations of the increase in dissenting reports
fall back on the excuse that the present structure of committees has led to a
fragmentation of views. This structure derived from a recommendation of the Procedure
Committee that the Legislative and General Purpose Committees should be divided
into references and legislation committees, covering the range of Commonwealth
activities, each with a core membership and sharing a common secretariat. The
recommendation came into effect in 1994. References committees were established
to continue the work, previously undertaken by the Legislative and General Purpose
Committees, of dealing with general issues that the Senate, the committees themselves
or interested parties considered worthy of examination. These committees are chaired
by non-government senators with the chair having a casting vote, thus creating
a non-government majority. Legislation committees, chaired by government senators
with a casting vote and with an in-built government majority, were intended to
examine legislation, through brisk inquiries, and to scrutinise the government
through evaluation of annual reports and general supervision of government departments
and authorities. In particular, these committees absorbed the function, previously
performed by the estimates committees, which were abolished under the new proposal,
of examining in detail proposed expenditure of government departments and authorities.
The restructuring had two main features: (1) a recognition of the
significance of the non-government majority in the Senate through the appointment
of non-government senators as chairs, and with a non-government majority of committee
membership; and (2) a further recognition that the Senate's scrutiny of
legislation had previously taken second place to its more general inquiries. The
establishment of legislation committees, together with a streamlined process for
examining the majority of bills, was intended to fulfil a demonstrated need for
`out-of-chamber' examination of the provisions of bills, in order to accommodate
the legislative overload that was particularly prevalent in the Senate at the
time. A subsidiary aim of the restructuring was to limit the number of
select committees, which had proliferated to such an extent that they were draining
both finance and resources from the more structured standing committee system.
These select committees were invariably established to deal with highly contentious
and `coloured' inquiries and, in my view, were with honourable exceptions the
genesis of the split inquiries that are now a feature of Senate committee proceedings.
Given the observations made at the beginning of this paper, it is difficult
to imagine why this structure intrinsically should have led to the present state
of affairs. Apart from the occasional select committee in earlier times, when
a government was deliberately denied a majority and not infrequently an independent
senator or a senator from a minor party was given the mediating role between entrenched
government and opposition senators, most Senate committees were government controlled.
It might be expected, therefore, that non-government senators would have had more
need to find an outlet through the dissent mechanism. This simply did not occur
then, for what must seem an obvious reason. It was clear that, if a government
had too much say over the proceedings or the outcome of a committee inquiry, there
was an appeal to a higher authority: the Senate plenum. Yet this feature
remains true in the present system—perhaps even more so. If an adventitious
majority, whether of government or official Opposition, controls proceedings or
suppresses information, there is a ready outlet within the Senate proper for a
committee minority to publicise its concerns. A further explanation for
the increase in acrimony and dissent suggests that it is the volume of legislation
being referred to committees, and the attendant intensity of political debate,
that has led to contention and dissent. This, too, seems difficult to sustain,
because in previous years it was mostly contentious legislation that was referred
to committees, which managed their inquiries with a minimum of confrontation.
If, therefore, the structures are not to blame, are there any particular
procedural constraints that have led to the profusion of split reports? Time
constraints on committee inquiriesThere is one, significant, procedural
constraint on non-partisan committee deliberations: the dearth of time available
to committees both to examine and to report on legislation. When the proposal
that there be more systematic examination of legislation was first mooted in 1988,
there was an understandable anxiety that the government's program should not be
held up by extensive committee inquiries. This led to the establishment of a select
committee that, in its report adopted by the Senate in 1989, came up with a proposal
for fast-tracking committee consideration of bills. This in turn resulted in the
introduction of what came to be called the `Friday committee' process. The intent
was that a subject-specialist Legislative and General Purpose Committee would
receive a bill from the Senate after in-principle agreement was signified by passage
of the second reading, and that evidence be taken primarily from the minister
responsible for its passage, accompanied by departmental officers familiar with
the detailed provisions. In effect, the Legislative and General Purpose Committees
were to be mini committees of the whole, performing a comparable function to committees
examining estimates. In their early stages, this is what occurred. The
scheme also retained committees' normal powers to conduct more extensive inquiries,
involving taking evidence from other witnesses and travelling, if required, throughout
Australia. In practice, the committees created a `hybrid' format, resulting in
very fruitful inquiries, most often held in Canberra and not infrequently in a
round-table format, taking evidence from not merely the minister and public servants,
but from interested groups and persons with a specialised knowledge of the subject
area. The committees also began to take evidence through video and teleconferencing
facilities to enable maximum access for other interested parties. This
process continued successfully in the succeeding years, which also encompassed
the committee restructuring referred to earlier. However, as the volume of legislation
being referred to committees increased, so too did the strains involved in conducting
a series of brief inquiries within a tight time-frame. The problems for the committees
derived from the speed with which complex arrangements, and grasp of the topic,
had to be arrived at. There has been little opportunity for committees to discuss
and analyse evidence presented to them, leading almost inevitably to a restatement
of already-known positions. This problem has been recognised in informal
discussions, and has been stated with admirable clarity by the Legal and Constitutional
Legislation Committee in an interim report on two complex bills. The timetable
given to the committee is instructive. A recommendation that the bills be referred
to the committee was made by the Selection of Bills Committee, which consists
of the whips of the various parties and the independent senators. This latter
committee was created as the mechanism for streamlining and coordinating suggestions
that bills be referred to committees. The Selection of Bills Committee's report
recommending the referral was tabled on the afternoon of 24 March 1999. A hearing
was proposed for Friday, 26 March, and the date for tabling the report was specified
as 29 March. In its interim report to the Senate on the day the report
was due, tabled to meet the Senate's order to report, the Legal and Constitutional
Legislation Committee advised that it did not proceed with the hearing. After
giving what I regard as extremely cogent reasons as to why it could not conduct
the reference in the time available, it suggested that `the Senate, through the
Selection of Bills Committee, reconsider the suggested hearing and reporting dates,
and do so in consultation with the Legal and Constitutional Legislation Committee'.
The committee sought, and was given, an extension of time to 19 April to report,
and brought down the report on the due date. As a matter of rueful interest, the
bills that were the subject of the inquiry were not dealt with before the Senate
rose on 30 June. So much for artificial deadlines. This account represents
the norm, not the exception. Constantly committees are ordered to report within
an absurd deadline only to find that both the report and the legislation about
which the report is made languish in the nether regions of the Senate basement
and the notice paper, respectively, until the legislation is hastily rushed through
at the fag end of a sitting period. As the Legal and Constitutional Legislation
Committee puts it, `… such short reporting deadlines do not inspire confidence
in the fairness of Senate processes.' However, this known procedural problem
has an easy remedy. In addition to the sane suggestions made by the Legal and
Constitutional Committee, a `civilised guillotine' for consideration of bills
in committees could be established, in the same way that proposals for programming
Senate business through the use of a similar device might be developed. We can
but hope that the very few Senate experiments with the civilised guillotine (also
now known in the new managerialist jargon as `time management') have proved so
irresistibly successful that they might become the norm. Personalities
and the SenateWhile acknowledging the only structural difficulty leading
to hasty reports, this still does not explain the proliferation of confrontationist
inquiries and fragmented reports that are now so much a feature of Senate committee
inquiries. My own view is that the change can be laid at the feet of the
personalities of rather too many of the senators who are at present responsible
for the operations of the Senate and its committees. Some years ago, the then
Leader of the Opposition, Senator the Honourable Fred Chaney, contrasted Senate
behaviour with that of members of the House of Representatives. As he put it,
the need to negotiate on matters, given the government's failure to gain a majority
in the Senate, leads to a climate of `enforced reasonableness'. Senators who were
constantly abusive to senators representing other parties were, in those days,
isolated by their peers, and were in the worst position to seek co-operation at
another time. Even when debate in the chamber, notably at question time, was somewhat
robust, this behaviour was rarely translated to out-of-chamber activities. There
was an assumption that, even if matters were highly contentious—particularly
when legislation was referred to committees—the confrontational element would
be set aside, committee members would treat each other and witnesses with courtesy,
and significant areas of commonality would be found. There were never any illusions
about policy differences being the ultimate determinant of voting in the chamber.
Nevertheless, it was assumed that provisions of legislation could be tested by
evidence, suggestions for amendments incorporated within the main body of a report
and provision made, even within the majority report, for dissent when agreement
on particular areas simply could not be reached. The result was usually—dependent
on whether haste was a determining factor—a useful analysis of the legislative
proposal and majority—and most usually unanimous—recommendations included
in the body of the report, with defined areas of dissent forming an integral but
nonetheless small part of the report as tabled. Now, however, it appears
that every committee examining all but the most innocuous bills—which are
rarely referred to committees—appears to work on the assumption that there
will be an `us versus them' report. Government members appear to consider all
legislation perfect, while opposition members consider every piece of legislation
as hopeless or antithetical to the `tablets of stone' policy positions established
by their lower house counterparts. On the rare occasions where a majority
(government) report analyses a bill and makes constructive suggestions for amendments,
this is still not good enough for the Opposition. Thus, a dissenting report will
be produced, often of the same length as the majority report. In order to differentiate
the `product', much in the majority report is repackaged and there is always an
earnest desire to go further than even some quite `courageous'—in the Sir
Humphrey-esque meaning—departures from the government party line. Add in
participating membership of the Democrats, Greens and the occasional other independent
senator. We find in any volume tabled in the Senate up to four or five reports
that, while they state or reiterate party political attitudes, are devoid of detailed
or constructive analyses of the legislation referred, and are not conducive to
good legislative process. In addition, the highly active nature of Senate
committees and the unpredictability of outcomes in the Senate have kept the media's
attention firmly focused on the work of Senate committees. It is possible that
some senators have found the temptation irresistible to play to the media gallery
in order to obtain greater coverage of their immediate party position or agenda,
rather than to adopt the long-term strategy of working with their committee colleagues
on an effective solution to problems with legislation identified during an inquiry.
The perfect illustration of my concern is represented by the GST reports
to which I referred earlier. Despite considerable protest from the Howard government,
the Senate after the October 1998 elections made it clear that the massive tax
package, which was guillotined through the House of Representatives soon after
the parliament commenced, should be scrutinised by the Senate's committee system.
As a result, the government was forced reluctantly into a compromise arrangement
whereby various parts of the package were referred to three Senate references
committees: Community Affairs; Environment, Communications, Information Technology
and the Arts; and Employment, Workplace Relations, Small Business and Education.
An over-arching select committee was also established, which the Senate ordered
to produce a report on the general terms of reference and then to evaluate findings
of the other committees. In addition, this select committee reported on further
bills that the government had added to its tax package some months after its passage
through the House of Representatives. It may be observed that all the legislation
was referred, not to the Senate legislation committees, on which the government
had a majority, but to the references committees, with their non-government majority.
(The select committee, too, was constituted by a non-government majority, with
the Chair of the committee being the Deputy Leader of the Opposition.) This continued
what I regard as an unhealthy trend that developed early in the life of the Howard
government. While most bills are still sent to legislation committees, `big picture'
bills have been sent to references committees on the pretext of enabling full
inquiries, not constrained by the perceived limitations of sending bills to legislation
committees. In fact, contentious bills such as the Telstra Privatisation Bill
and major proposals for changes to industrial laws have been referred to references
committees primarily because they have had a non-government majority. Experience
on some committees has justified non-government senators' mistrust of government
senators `shutting down' inquiries at the behest of their ministerial masters.
Conversely, government senators have been justifiably fearful of opposition senators
marching to the beat of their own drum, without regard to the rights and duties
of their government and small-party colleagues. Whatever the reasons, the atmosphere
of mistrust and potential confrontation, demonstrated by the over-riding of the
well-established practice of referring bills to legislation committees, has illustrated
the problems that I believe have beset Senate operations in recent times. Nowhere
was this more obvious than during the proceedings of the GST committees. After
some of the most acrimonious confrontations ever experienced, affecting committee
members, witnesses, consultants and certain committee staff, the committees all
managed to report. Surprisingly, all met the Senate deadline. Less surprisingly,
all reports consisted of majority and dissenting reports. The select committee
probably set all records for amazing reporting structures—its three reports,
spread over a two-month period, included virtually all the combinations of reports,
dissents, findings, addenda, and conclusions that only the most fertile procedural
mind could devise. The unfortunate consequence of the intransigence of
most of the participants in the inquiries was that it became ridiculously easy
for the government and its supporters to trumpet `I told you so' and declare the
futility and waste of time and resources involved in the production of the reports.
Indeed, the government would have been able to ignore them in their entirety if
it were not for one factor: the series of Democrats' reports ultimately became
the basis of the discussions with government and of the negotiated settlement
required for the passage of the tax legislation. That the government had
treated the committee reports with disdain became obvious during the negotiations:
it was clear that no-one had addressed either the content of the Democrats' reports
or the amendments flowing from them. Thus the freneticism and haste that resulted
from their being ignored between the tabling of the reports in February, March
and April and the in-principle agreement that found ultimate expression in the
successful legislative package late in June. ConclusionFor all
the futility of the reporting process, and despite the acrimonious and politicised
hearings, the references of the tax package to various Senate committees turned
out to be vital, for the most important reason of all: the quality of the evidence
given. Senators with a commitment to gaining benefit from the process used the
hearings intelligently to shape their views and ultimately their voting decisions,
and also used the evidence to formulate their own legislative proposals. The more
sophisticated economic and political commentators drew heavily on the evidence
to inform their readers, viewers and listeners. In particular, as mentioned, the
Democrats used the committee process to formulate and refine their views. They
created all their substantial amendments after the committees had deliberated
and reported, and circulated them in the Senate during the taxation package debate.
The Senate had considered several by the time the Democrats reached agreement
with the government, and many were incorporated into the legislation as finally
passed by the Senate and the House of Representatives. So, despite the
confrontational and oppositionist nature of much of the Senate committee process,
good outcomes can result. Confrontation makes life easy. The individual member
of a parliamentary committee does not have to think; does not have to worry about
the consequences of diverging, however inadvertently, from the party line; and
does not have to become involved in an understanding of detailed provisions of
legislation and the time-consuming negotiation of a desired outcome. One can but
hope that those members of committees who have intentionally dealt themselves
out of the constructive committee process might in the foreseeable future come
to realise that a return to the culture of enforced reasonableness, which for
so long was the hallmark of the Senate, can be both productive and rewarding.
Footnotes* This paper was prepared for the
30th Conference of Presiding Officers and Clerks, Fiji, July 1999.
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