Posted 21/03/2019 by Michael Sloane
The possibility of the federal election being called soon after the 2019–20 Budget on 2 April 2019 raises the question of what will happen with the Senate estimates hearings that are scheduled to be held over 4–12 April. Would calling the election prevent estimates hearings going ahead? Could the Senate require hearings to go ahead despite the calling of an election?
Prime Minister Morrison has announced that the 2019–20 Budget will be delivered on 2 April 2019. The Senate is scheduled to sit on 2 and 3 April, and budget estimates hearings are scheduled to occur on 4 and 5 April and from 8 to 12 April. This arrangement of Senate sitting days and estimates hearings was determined in late November of 2018, when the Senate amended the Government’s proposed 2019 sitting and estimates schedules.
The Government had originally proposed to schedule budget estimates hearings from 28 May to 7 June 2019; however, if the election were to be held on either 11 or 18 May, which have been suggested as the most likely election dates, this would have delayed scrutiny of the Budget until after the election. In proposing the November 2018 amendments to the Senate’s sitting calendar, the Manager of Opposition Business in the Senate noted that the arrangements would mirror those of 2016, when the Senate also scheduled estimates hearings for the Thursday and Friday of the budget week.
Would calling an election prevent Senate estimates hearings going ahead?
If an election were called either in the budget sitting week or on the following weekend, in accordance with recent practice the Governor-General would be likely to prorogue the Parliament as well as dissolve the House of Representatives. As the Senate is a continuing House and cannot be dissolved except in the case of a double dissolution under section 57 of the Australian Constitution, senators will remain in office following the calling of a House and half-Senate election. The terms of senators allocated three-year terms following the 2016 election will not expire until 30 June 2019.
Odgers’ Australian Senate Practice notes that ‘The conventional interpretation is that prorogation has the effect of terminating all business before the Houses but exceptions have been recognised.’ While temporary or sessional orders of the Senate are considered to be superseded by a prorogation, standing orders and orders of continuing effect are considered to remain effective despite a prorogation. Senate legislation committees, which conduct estimates hearings, are able to meet and transact business notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives, as is explicitly provided under Senate Standing Order 25(14).
Although Senate legislation committees are therefore able to meet and transact business after a prorogation, the current Senate resolution requiring them to hold estimates hearings on the specified dates in April is not likely to be considered effective after a prorogation. As Odgers’ explains with regard to the prorogation of the Parliament in April 2016:
The prorogation was regarded as superseding the forward program of estimates hearings and associated arrangements. Although legislation committees have power to meet notwithstanding any prorogation, the order setting the days for estimates hearings does not expressly require the committees to meet notwithstanding any prorogation and is therefore regarded as operating only if the session continues.
So in the absence of an effective order of the Senate requiring legislation committees to hold estimates hearings notwithstanding any prorogation, the hearings would likely not go ahead.
Could the Senate require estimates hearings to go ahead despite the calling of an election?
As matters currently stand, if the election is called and the Parliament is prorogued prior to (or soon after the commencement of) the estimates hearings scheduled for 4 to 12 April, they will likely not go ahead (or not continue if they have already commenced). As noted above, this is because the current order setting the schedule for estimates hearings does not expressly require the committees to meet notwithstanding any prorogation.
However, as it is open to the Senate to make an order expressly requiring the full program of estimates hearings to proceed notwithstanding any prorogation, the Senate could prevent a prorogation from stopping the scheduled estimates hearings, provided a majority of senators support such action.