Footnotes
Fitzpatrick and Browne after 60 Years*
[2] House of Representatives Hansard, 10 June
1955, p. 1628.
[3] Frank C. Green, Servant of the House,
Heinemann, Melbourne, 1969, p. 163.
[4] ibid., pp. 157, 159.
[5] ibid., p. 158.
[6] Harry Evans, ‘Fitzpatrick and Browne:
imprisonment by a house of the parliament’, Papers on Parliament, no.
52, December 2009, pp. 136–7.
[7] Sir Robert Menzies, Afternoon Light: Some Memories
of Men and Events, Cassell, Melbourne, 1967, p. 302.
[8] House of Representatives Hansard, 10 June
1955, p. 1630.
[9] Alan Reid, oral history recording (National
Library of Australia) quoted in C.J. Lloyd, Parliament and the Press: The
Federal Parliamentary Press Gallery 1901–88, Melbourne University Press,
Carlton, Vic., 1988, p. 201.
[10] Sun, 14 May 1976.
[11] Les Haylen, Twenty Years Hard Labor,
Macmillan, Melbourne, 1969, p. 158.
[12] Gavin Souter, Acts of Parliament: A
Narrative History of the Senate and House of Representatives, Commonwealth of
Australia, Melbourne University Press, Carlton, Vic., 1989, p. 431.
[13] Enid Campbell, Parliamentary Privilege,
Federation Press, Sydney, 2003.
800th Anniversary of Magna Carta*
*
This paper was presented as a lecture in the
Senate Occasional Lecture Series at Parliament House, Canberra, on 19 June
2015.
[1]
Eleanor Roosevelt, ‘Statement to the United
Nations’ General Assembly on the Universal Declaration of Human Rights’, 9
December 1948, The Eleanor Roosevelt Papers Project,
https://www.gwu.edu/~erpapers/documents/displaydoc.cfm?_t=speeches&_docid=spc057137.
[2] Rt Hon. Philip Hammond, Speech delivered at Magna
Carta 800th Anniversary Dinner, The Guildhall, City of London Corporation, 12
January 2015.
[3] Ban, Ki-moon, Statement: Secretary-General’s
video message for High-Level Event of the Human Rights Council on the Question
of the Death Penalty, Geneva, Switzerland, 5 March 2014,
www.un.org/sg/STATEMENTS/.
Reforming the Public Sector*
[1] The restaurant was called Mayfair on the
Costa del Sol.
[2] The Audit Act 1901 was replaced by the Financial
Management and Accountability Act 1997, the Commonwealth Authorities and
Companies Act 1997 and the Audit Act 1997. The Audit Act 1997
remains in place, although it was amended to allow for the introduction of the
new financial framework.
[3] This language is a combination of sections 16(a)
and 15(1)(b) of the PGPA Act.
[4] These will cover the Departments of Agriculture,
Environment, Foreign Affairs and Trade, Treasury, Attorney‑General’s and
Social Services, as well as the Australian Taxation Office and the Australian
Bureau of Statistics.
Serving the Senate: The Legacy of Harry Evans*
[1] Copies
of these documents—subsequently updated—are readily obtained via the Senate
website.
[4] Senator
Michael Macklin in response to the statement by the President on the ‘Use of
Senate committee evidence in court proceedings’, Senate Hansard, 9 April
1986, p. 1453.
[5] Private
email correspondence to the Clerk of the Senate, Rosemary Laing, 24 August 2015
and 25 August 2015.
[8] Woodrow Wilson quoted in Harry Evans (ed.), Odgers’
Australian Senate Practice, Department of the Senate, Canberra, 2008, p.
12.
[10] Harry Evans, ‘The traditional, the quaint and the
useful: pitfalls of reforming parliamentary procedures’, 35th Conference of Australian and Pacific
Presiding Officers and Clerks, Melbourne, July 2004. Republished in Papers on Parliament, no. 52,
December 2009, p. 146.
[11] A discussion on points of order during a division
can be found in chapter 18 (SO 103) of Rosemary Laing (ed.), Annotated
Standing Orders of the Australian Senate, Department of the Senate,
Canberra, 2009, www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/aso.
[17] ibid.,
p. 116.
The Parliamentary Budget Office: Supporting Australian Democracy*
[1] International Monetary Fund, ‘The functions and
impact of fiscal councils’, IMF Policy Paper, 16 July 2013, IMF,
p. 11, www.imf.org/external/np/pp/eng/2013/071613.pdf.
[2] House of Representatives Hansard, 14 May
2009, p. 3975 (The Hon. Mr Malcolm Turnbull).
[3] ‘Agreement for a better parliament: parliamentary
reform’ in House of Representatives Standing Committee on Procedure, Monitoring
and Review of Procedural Changes Implemented in the 43rd Parliament: 4th Report,
20 October 2012, appendix B.
[4] Joint Select Committee on the Parliamentary
Budget Office, Inquiry into the Proposed
Parliamentary Budget Office, March 2011, www.aph.gov.au/Parliamentary_Business/
Committees/House_of_Representatives_Committees?url=jscpbo/report.htm.
[5] Parliamentary Service Amendment (Parliamentary
Budget Officer) Act 2011 (Cwlth).
[6] House of Representatives Hansard, 24 August
2011, p. 9141 (The Hon. Mr Wayne Swan).
[7] Parliamentary
Service Amendment (Parliamentary Budget Officer) Act 2013 (Cwlth).
[8] House of Representatives Hansard, 14 March
2013, p. 2093 (The Hon. Mr Wayne Swan).
[9] Australian National Audit Office, Performance
Audit Report No. 36, 2013–14: The Administration of the Parliamentary Budget
Office, ANAO, Canberra, 2014, www.anao.gov.au/Publications/Audit-Reports/2013-2014/The-Administration-of-the-Parliamentary-Budget-Office.
[10] Joint Committee of Public Accounts and Audit, Report
No. 446: Review of the Operations of the Parliamentary Budget Office, November
2014, www.aph.gov.au/Parliamentary_Business/ Committees/Joint/Public_Accounts_and_Audit/PBO/Report_446.
[11] Australian Government response to JCPAA Report
No. 446: Review of the Operations of the Parliamentary Budget Office, June
2015, www.aph.gov.au/Parliamentary_Business/Committees/ Joint/Public_Accounts_and_Audit/PBO/
Government_Response.
[13] Parliamentary Budget Office, Memorandum of
Understanding between the Parliamentary Budget Officer and the Heads of
Commonwealth Bodies in Relation to the Provision of Information and Documents,
PBO, Canberra, 24 September 2012, www.aph.gov.au/About_Parliament/
Parliamentary_Departments/Parliamentary_Budget_Office/arrangements.
[14] Australian Government Protocols Governing the
Engagement between Commonwealth Bodies and the Parliamentary Budget Officer,
released 15 January 2014, Canberra, http://treasury.gov.au/ PublicationsAndMedia/Publications/2013/PBO.
[15] Commonwealth of Australia, Economic Statement,
Canberra, August 2013, www.budget.gov.au/ 2013-14/content/economic_statement/html/index.htm.
[16] Parliamentary Budget Office, Post-election
Report of Election Commitments: 2013 General Election, PBO, Canberra, 2013,
www.aph.gov.au/About_Parliament/Parliamentary_Departments/ Parliamentary_Budget_Office/2013_Election.
[17] Parliamentary Budget Office, Report No.
01/2013: Estimates of the Structural Budget Balance of the
Australian Government: 2001–02 to 2016–17, PBO, Canberra, 2013, www.aph.gov.au/
About_Parliament/Parliamentary_Departments/Parliamentary_Budget_Office/research_reports/Estimates_of_the_structural_budget_balance_of_the_Australian_Government_2001-02_to_2016-17.
[18] Commonwealth Treasury & Department of Finance
and Deregulation, Pre‑election Economic and Fiscal
Outlook 2013, The Treasury, Canberra, 2013, www.treasury.gov.au/PublicationsAndMedia/
Publications/2013/PEFO-2013.
[19] Commonwealth of Australia, Mid-year Economic
and Fiscal Outlook 2013–14, Canberra, 2013,
http://budget.gov.au/2013-14/content/myefo/html/.
[20] Parliamentary Budget Office, Report No.
02/2015: 2015–16 Budget—Medium-term Projections, PBO, Canberra, 2015, www.aph.gov.au/About_Parliament/Parliamentary_Departments/
Parliamentary_Budget_Office/research_reports/2015-16_Budget_-_medium-term_projections.
[21] Australian National Audit Office, Performance
Audit Report No. 36, 2013–14: The Administration of the Parliamentary Budget
Office, ANAO, Canberra, 2014, pp. 101, 117.
[22] ibid, p. 18.
[23] Joint Committee of Public Accounts and Audit, Report
No. 446, op. cit., p. vii.
[24] ibid, p. viii.
Representation of Commonwealth Territories in the Senate
[*] Harry Evans and Rosemary Laing (eds), Odgers’
Australian Senate Practice, 13th edn, Department of the Senate, Canberra,
2012, p. 115.
[†] ibid.
[‡] As at 2011, the populations of Australia’s
inhabited territories were: Christmas Island, 2,072; Norfolk Island, 1,796;
Territory of Cocos (Keeling) Islands, 550; Australian Capital Territory,
356,586; Northern Territory, 211,945. See Australian Bureau of Statistics, 2011
Census of Housing and Population, www.abs.gov.au/websitedbs/censushome.nsf/home/census?opendocument
&navpos=10, accessed 20 August 2015.
[§] For a summary of the acquisition processes
followed in the case of each external territory see Alan Kerr, A Federation
in These Seas: An Account of the Acquisition by Australia of Its External
Territories, Attorney General’s Department, Canberra, 2009, p. 400, http://regional.gov.au/
territories/publications/. For an account of the legal regimes applying to each
external territory see also Australian Law Reform Commission, ‘External territories’
in Legal Risk in International Transactions, ALRC report 80, 1996, www.alrc.gov.au/publications/alrc-80-legal-risk-international-transactions/10-external-territories.
[**] The high cost of administering and developing the
Northern Territory made its surrender to the Commonwealth an attractive
prospect for South Australian politicians, while federal politicians considered
that the development of the Northern Territory was vital to the defence of the
new federation and would also be of economic advantage. Alistair Heatley
comments that the transfer of control to the Commonwealth was: ‘a lengthy
process, extending for almost a decade (1901 to 1910); it was characterised by
hard bargaining, political vacillation on both sides, and a splendid amount of posturing.’
(Alistair Heatley, Almost Australians: The Politics of Northern Territory
Self-Government, ANU North Australia Research Unit, Darwin, 1990, p. 4.)
[††] Margaret Healy, ‘Territory representation in the
Commonwealth Parliament’, Research Note (Department of the Parliamentary
Library), no. 8, 2000–01, p. [1], http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/GRC26/upload_binary/grc265.pdf.
[‡‡] Australian Electoral Commission, ‘Calculating
representation entitlements of states and territories’, 13 November 2014, www.aec.gov.au/electorates/Redistributions/calculating-entitlements.htm,
accessed 17 August 2015.
[§§] Brian Opeskin, ‘Constitutions and populations: how
well has the Australian Constitution accommodated a century of demographic
change?’, Public Law Review, vol. 21, no. 2, June 2010, p. 131. The
Commonwealth also possessed the following external territories for various
periods during the twentieth century: Papua (1906–42), New Guinea (1920–42),
Papua and New Guinea (1942–71), Papua New Guinea (1971–75), Nauru (1920–68).
See Kerr, op. cit., pp. 12–121, 160–95.
[***] Australian Law Reform Commission, Legal Risk in
International Transactions, ALRC report 80, 1996, paragraphs 10.18–10.20, www.alrc.gov.au/sites/default/files/pdfs/publications/
ALRC80.pdf, accessed 17 August 2015.
[†††] Australian Electoral Commission, ‘Profile of the
electoral division of Lingiari’, 23 September 2013, www.aec.gov.au/profiles/nt/lingiari.htm,
accessed 17 August 2015; Australian Electoral Commission, ‘NT Division—Lingiari’,
10 October 2013, http://results.aec.gov.au/17496/
website/SenateDivisionPollingPlaces-17496-306.htm, accessed 17 August 2015.
[‡‡‡] Australian Electoral Commission, ‘Norfolk Island
electors’, 23 April 2013, www.aec.gov.au/ Enrolling_to_vote/special_category/Norfolk_Island_electors.htm,
accessed 17 August 2015.
[§§§] Australian Electoral Commission, ‘Polling
place—Norfolk Island’, 10 October 2013, http://results.aec.gov.au/17496/website/SenatePollingPlaceFirstPrefs-17496-65739.htm,
accessed 17 August 2015.
[****] Explanatory Memorandum to Norfolk Island
Legislation Amendment Bill 2015 (Cth) and associated bills, p. 2.
[††††] Journals of the Senate, 14 May 2015,
p. 2606.
[‡‡‡‡] Rather than drafting a large volume of
Commonwealth legislation from scratch to address responsibilities ordinarily
covered by state legislation, the Commonwealth has in the past adopted state
laws and applied them as its own to external territories. See Explanatory Memorandum
to Norfolk Island Legislation Amendment Bill 2015 and associated bills, pp.
2–3.
[§§§§] Department of Infrastructure and Regional
Development, ‘FAQs—governance’, 20 March 2015, www.regional.gov.au/territories/norfolk_island/reforms/faq/governance.aspx;
for discussion of the relationship between Norfolk Island electors and the
mainland divisions of Canberra and Lingiari, see also Ms Gai Brodtmann, House
of Representatives Hansard, 12 May 2015, pp. 3720–2, and the Hon. Mr Warren
Snowdon, House of Representatives Hansard, 12 May 2015, pp. 3714–16.
[*****] Legislative Assembly of Norfolk Island, Minutes
of Proceedings, 20 May 2015, p. 126, http://norfolkisland.gov.nf/la/Minutes%20of%20Proceedings/14th%20Legislative%20Assembly/.
[†††††] This point was noted in the second reading
debate on the Norfolk Island Legislation Amendment Bill 2015 by the Hon. Mr Warren
Snowdon, House of Representatives Hansard, 12 May 2015, p. 3716.
[‡‡‡‡‡] Joint Select Committee on Electoral Reform, Determining
the Entitlement of Federal Territories and New States to Representation in the
Commonwealth Parliament, November 1985, p. 18.
[§§§§§] Northern Territory Representation Act 1922,
section 5, www.comlaw.gov.au/Details/ C1922A00018.
[******] House of Representatives Hansard, 13
September 1922, p. 2199 (Sir Granville Ryrie).
[††††††] See amended versions of the Northern
Territory Representation Act 1922 at: www.comlaw.gov.au/Series/C1922A00018/Amendments.
[‡‡‡‡‡‡] See amended versions of Australian Capital
Territory Representation Act 1948 at: www.comlaw.gov.au/Series/C1948A00057/Amendments.
[§§§§§§] Healy, op. cit.
[*******] Australian Electoral Commission, ‘Electoral
newsfile 115: two electoral divisions in the Northern Territory’, 7 February
2011, www.aec.gov.au/About_AEC/Publications/Newsfiles/2004/ No_115.htm, accessed
17 August 2015.
[†††††††] Heatley, op. cit., p. 9.
[‡‡‡‡‡‡‡] Senate Hansard, 9 September 1920, p.
4336, 15 September 1920, pp. 4527–30, 16 September 1920, pp. 4587–615, 4617–25.
[§§§§§§§] Senate Hansard, 15 September 1920, p.
4529 (Senator the Hon. Edward John Russell).
[********] Heatley, op. cit., p. 2.
[††††††††] Journals of the Senate, 16 September 1920,
p. 156.
[‡‡‡‡‡‡‡‡] These figures include estimates of the Indigenous
population of the two territories at the time. See note (a), Australian Bureau
of Statistics, Australian Historical Population Statistics 2014, Population
size and growth, 1.1 Population by sex, states and territories, cat. No.
3105.0.65.001 2014, www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/3105.0.65.0012014?OpenDocument,
accessed 25 August 2015.
[§§§§§§§§] Between 1926 and 1931 the Northern Territory
ceased to exist and was replaced by two territories, Northern Australia and
Central Australia. Following the bombing of Darwin, the Northern Territory was
under military administration from 1942 to 1946. See Nicholas Horne, ‘A
chronology of Northern Territory constitutional and statehood milestones
1825–2007’, Parliamentary Library, 31 May 2007, www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library
/Publications_Archive/online/NTConstitutionalMilestones, accessed 17 August
2015; also see Heatley, op. cit., pp. 9–11.
[*********] Legislative Assembly of the Northern Territory,
‘History of the Northern Territory Parliament’, www.nt.gov.au/lant/about-parliament/history-of-nt-parliament.shtml,
accessed 17 August 2015; Horne, op. cit.
[†††††††††] Legislative Council for the Northern Territory,
‘The Remonstrance’, 26 February 1962, www.territorystories.nt.gov.au/bitstream/10070/213543/3/Remonstrance_1962.pdf,
accessed 18 August 2015.
[‡‡‡‡‡‡‡‡‡] Legislative Assembly for the Australian Capital
Territory, ‘The establishment of self-government in the ACT’, www.parliament.act.gov.au/__data/assets/pdf_file/0007/367018/Assembly-Factsheet-3-June-2013.pdf,
accessed 20 August 2015.
[§§§§§§§§§] Philip Grundy, Bill Oakes, Lynne Reeder, Roger
Wettenhall, Reluctant Democrats: The Transition to Self-Government in the
Australian Capital Territory, Federal Capital Press, Canberra, 1996, p. 2.
[**********] ibid, p. 3.
[††††††††††] Australian Labor Party, Platform, Constitution
and Rules, 1967, pp. 9–10, http://parlinfo.aph.gov.au/parlInfo/download/library/partypol/1040068/upload_binary/1040068.pdf,
accessed 18 August 2015.
[‡‡‡‡‡‡‡‡‡‡] Paul Kelly, ‘Labor goes in to bat for its old
nemesis’, Australian, 20 August 2003; Alan Ramsey, ‘Abolish the Senate?
The no’s have it’, Sydney Morning Herald, 30 October 2004, pp. 42–3.
[§§§§§§§§§§] Australian Labor Party, op. cit., p. 31.
[***********] House of Representatives Hansard, 7
November 1968, pp. 2581–2 (Mr Gough Whitlam).
[†††††††††††] ibid., p. 2583.
[‡‡‡‡‡‡‡‡‡‡‡] ibid.
[§§§§§§§§§§§] Evans and Laing, op. cit., p. 11.
[************] ibid., pp. 137–8.
[††††††††††††] Joint Committee on Constitutional Review, Report,
October 1958, p. 10.
[‡‡‡‡‡‡‡‡‡‡‡‡] House of Representatives Hansard, 7 November
1968, p. 2584 (Mr Gough Whitlam).
[§§§§§§§§§§§§] On the topic of three-year terms for territory
senators, the sixth edition of Odgers’ contains the following
commentary: ‘it is a pity that the terms of service of territory Senators (the
life of the House of Representatives) are out of step with State Senators. The
purpose of six year terms for members of the Upper House is as important for
territory Senators as for State Senators, the question of rotation aside. It is
suggested for consideration that the Senate (Representation of Territories)
Act 1973 be amended to provide six year terms for territory Senators.’
(J.R. Odgers, Australian Senate Practice, 6th edn, Royal Australian
Institute of Public Administration, Canberra, 1991, p. 123.)
[*************] Parliamentary Library, ‘Federal election results
1901–2014’, www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1415/FedElect,
accessed 18 August 2015.
[†††††††††††††] House of Representatives Hansard, 7 November
1968, p. 2583 (Mr Gough Whitlam).
[‡‡‡‡‡‡‡‡‡‡‡‡‡] ibid.
[§§§§§§§§§§§§§] House of Representatives Hansard, 22 May
1973, pp. 2430–1 (the Hon. Mr Fred Daly).
[**************] ibid. The provisions for these
calculations are now located in the Commonwealth Electoral Act 1918,
section 48.
[††††††††††††††] House of Representatives, Votes and
Proceedings, 30 May 1973, p. 240.
[‡‡‡‡‡‡‡‡‡‡‡‡‡‡] Journals of the Senate, 7 June 1973,
pp. 273–5.
[§§§§§§§§§§§§§§] House of Representatives, Votes and
Proceedings, 25 September 1973, p. 379, 27 September 1973, pp. 397–8.
[***************] Journals of the Senate, 14 November
1973, pp. 480–1.
[†††††††††††††††] House of Representatives, Votes and
Proceedings, 10 and 11 July 1974; Journals of the Senate, 10–11 July
1974, 16–18 July 1974, 23–24 July 1974.
[‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡] Joint Sitting Hansard, 6 August
1974, pp. 87–8; Minutes of Proceedings of Joint Sitting, 6 August 1974,
pp. 3–5. The bills in question were ‘affirmed’ at the joint sitting rather than
‘agreed to’ in accordance with the terminology of section 57 of the
Constitution, which states in part:
‘The members present at the
joint sitting may deliberate and shall vote together upon the proposed law as
last proposed by the House of Representatives, and upon amendments, if any,
which have been made therein by one House and not agreed to by the other, and
any such amendments which are affirmed by an absolute majority of the total
number of the members of the Senate and House of Representatives shall be taken
to have been carried, and if the proposed law, with the amendments, if any, so
carried is affirmed by an absolute majority of the total number of the members
of the Senate and House of Representatives, it shall be taken to have been duly
passed by both Houses of the Parliament, and shall be presented to the
Governor-General for the Queen’s assent.’
[§§§§§§§§§§§§§§§] Odgers, op. cit., p. 120.
[****************] This argument was put forward during debate
on the Territory Senators Bill 1970 by the Member for the Australian Capital
Territory, Mr Kep Enderby. See House of Representatives Hansard, 20 August
1970, p. 289. The Senate has taken the lead role in scrutinising delegated
legislation since establishing the Standing Committee on Regulations and
Ordinances in 1932. See discussion at Evans and Laing, op. cit., pp. 416–18.
[††††††††††††††††] Odgers, op. cit., pp. 120–1.
[‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡] Harry Evans, ‘The role of the Senate’, Reform,
issue 78, 2001, pp. 16–20, www.austlii.edu.au/au/ journals/ALRCRefJl/2001/4.html,
accessed 18 August 2015.
[§§§§§§§§§§§§§§§§] ibid.
[*****************] Evans and Laing, op. cit., p. 1.
[†††††††††††††††††] Dr John Cockburn, Debates of the
Australasian Federal Convention, 30 March 1897, p. 340.
[‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡] Western Australia v Commonwealth
(1975) 134 CLR 201; see also ‘High Court decision: senators for ACT upheld’, Canberra
Times, 11 October 1975, p. 1.
[§§§§§§§§§§§§§§§§§] Leslie Zines, The High Court and the
Constitution, 4th edn, Butterworths, Sydney, 1997, p. 440.
[******************] For a summary and discussion of the various
arguments deployed in this case see Leslie Zines, The High Court and the
Constitution, op. cit., pp. 467–71.
[††††††††††††††††††] Western Australia v Commonwealth (1975)
134 CLR 201, 227, 232.
[‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡] Western Australia v Commonwealth (1975)
134 CLR 201, 270.
[§§§§§§§§§§§§§§§§§§] Western Australia v Commonwealth (1975)
134 CLR 201, 275.
[*******************] Leslie Zines, The High Court and the
Constitution, op. cit., p. 467.
[†††††††††††††††††††] Leslie Zines, ‘Representation of territories
and new states in the Commonwealth Parliament’, a paper prepared for Standing
Committee D for the Australian Constitutional Convention, published as Appendix
H in volume 2 of the 4th Report of Standing Committee D of the Australian
Constitutional Convention, August 1982, pp. 5–6.
[‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡] ‘Before indicating my opinion as to the correct
answers to these questions, it should be noted that two States during the
argument of these proceedings questioned the propriety of the court’s decision
in Western Australia v. the Commonwealth. However, unfortunately as I think,
neither State proffered any argument in support of this questioning. I say
unfortunately because, if the decision is to be reconsidered, that
reconsideration should take place before what, with due respect to the opinion
of others, appears to me to be a serious departure from the federal nature of
the Constitution, becomes entrenched in constitutional practice by the mere
passage of time.’ Attorney-General (NSW) ex rel McKellar v Commonwealth
(1977) 139 CLR 527, 533 [4].
[§§§§§§§§§§§§§§§§§§§] Queensland v Commonwealth (1977) 139 CLR
585.
[********************] Encyclopaedic Australian Legal Dictionary,
‘stare decisis’, LexisNexis Australia, January 2011.
[††††††††††††††††††††] Leslie Zines, ‘Representation of territories and
new states in the Commonwealth Parliament’, op. cit., p. 3; For a discussion of
the reasons given, both for and against, relying on the principle of stare
decisis in this case, see Leslie Zines, High Court and the Constitution,
op. cit., pp. 440–1. Zines notes the following reasons in favour of not
overturning the decision in the First Territories Senators Case: it was
a recent decision, it had been fully argued, there were no new arguments
presented in the Second Territories Senators Case, and senators had in
fact been elected. Justifications for overturning the decision included the
following: it was a recent decision, it had not been followed in other cases,
it was by a narrow majority, and it was of great constitutional importance.
[‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡] Joint Select Committee on Electoral Reform, op.
cit., p. 18.
[§§§§§§§§§§§§§§§§§§§§] The fear that territory senators may ‘swamp’ the
parliament was a matter raised by some justices in High Court judgments, but
others countered with the view that this was equally possible via section 121
in the case of new states, and that this possibility was not something the
court should concern itself with. Rather, it must be assumed the parliament
will act responsibly. See Mason J argument at Western Australia v
Commonwealth, 134 CLR 201, 271.
[*********************] Western Australia v Commonwealth, 134 CLR
201, 275.
[†††††††††††††††††††††] Western Australia v Commonwealth, 134 CLR
201, 271.
[‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡] Australian Constitutional Convention, Standing
Committee D, 4th report, 1982, p. 46.
[§§§§§§§§§§§§§§§§§§§§§] Joint Select Committee on Electoral Reform, op.
cit., p. 2.
[**********************] ibid., pp. 46–7.
[††††††††††††††††††††††] ibid., pp. 47–8.
[‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡] ibid., p. 49.
[§§§§§§§§§§§§§§§§§§§§§§] ibid., p. 45.
[***********************] ibid., p. 55.
[†††††††††††††††††††††††] House of Representatives Hansard,
22 December 1989, p. 3536 (Mr Stewart West).
[‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡‡] Evans and Laing, op. cit., p. 33.
The Williams Decisions and the Implications for the Senate and its Scrutiny Committees*
[1] Williams v Commonwealth (2012) 248 CLR 156
(Williams (No.1)).
[2] Williams v Commonwealth (2012) 248 CLR 156
(Williams (No.1)); Williams v Commonwealth (No. 2) (2014)
309 ALR 41 (Williams (No.2)).
[3] Papers on Parliament, no. 63, July 2015,
pp. 109–34.
[4] Harry Evans and Rosemary Laing (eds), Odgers’
Australian Senate Practice, 13th edn, Department of the Senate, Canberra,
2012, p. 413.
[5] Rosemary Laing (ed.), Annotated Standing
Orders of the Australian Senate, Department of the Senate, Canberra, 2009,
Chapter 5—Standing and Select Committees, p. 110.
[6] Evans and Laing, op. cit., pp. 416–17.
[7] Parliament of Australia, Standing Orders and
Other Orders of the Senate, www.aph.gov.au/ Parliamentary_Business/Chamber_documents/Senate_chamber_documents/standingorders
(accessed 14 January 2016). The standing orders of the Senate derive their
authority from sections 49 and 50 of the Constitution, which provide,
respectively, for the powers, privileges, and immunities of the Senate and
House of Representatives; and that each house may make rules and orders for the
exercise of those powers, privileges, and immunities, and the order and conduct
of business.
[8] The Legislative Instruments Act 2003 will
become the Legislation Act 2003 on 5 March 2016 with the commencement of
the Acts and Instruments (Framework Reform) Act 2015.
[9] See Evans and Laing, op. cit., p. 413. The
disallowance process is prescribed by section 42 of the Legislative Instruments
Act 2003. Although both houses have the ability to disallow certain
instruments of delegated legislation, the power is more commonly exercised in
the Senate (where the government of the day generally does not have a
majority).
[10] Evans and Laing, op. cit., p. 424.
[11] ibid., pp. 432–3.
[12] The FFLA Act initially added over 400 items to
Schedule 1AA of the FMA regulations. However, because these items were added by
the FFLA Act (that is, by primary legislation) they fell outside the scope of
the committee’s scrutiny.
[13] Programs were initially added to Schedule 1AA, but
this was effectively superseded by Schedule 1AB, which, for technical reasons,
was added to the FMA regulations in December 2013 (see the Financial
Management and Accountability Amendment (2013 Measures No. 1) Regulation 2013
[F2013L02089]).
[14] Programs were initially added to a schedule of the
FMA Act. However, the Public Governance, Performance and Accountability Act
2013 repealed most of the FMA Act and renamed it the Financial Framework
(Supplementary Powers) Act 1997 (FFSP Act). The FFSP Act retained section
32B to authorise the Commonwealth to make, vary and administer arrangements and
grants specified in the FFSP regulations (which had previously been specified
in the FMA regulations (see previous note)).
[15] Senate Standing Committee on Regulations and
Ordinances, Delegated Legislation Monitor, no. 1 of 2013, 7 February
2013, pp. 36–7.
[16] The committee’s findings are reported in its main
publication, the Delegated Legislation Monitor (the monitor), available
at www.aph.gov.au/Parliamentary_Business/Committees/Senate/
Regulations_and_Ordinances/Monitor. The monitor is generally published each
Senate sitting week.
[17] Senate Standing Committee on Regulations and
Ordinances, Delegated Legislation Monitor, no. 1 of 2014,
12 February 2014, pp. 5–6.
[18] Senator the Hon. Mathias Cormann, Minister for
Finance, letter to Senator Sean Edwards, Chair, Senate Standing Committee on
Regulations and Ordinances, Delegated Legislation Monitor, no. 4 of
2014, 26 March 2014, Appendix 3.
[19] Expenditure on ordinary annual services is
contained in appropriation bills no. 1 (budget estimates) and no. 3
(additional estimates).
[20] Section 53 of the Constitution.
[21] Section 54 of the Constitution.
[22] In June 2010, the Senate restated by resolution
its constitutional right to amend proposed laws appropriating revenue or monies
for expenditure on all matters not involving the ordinary annual services of
the government. In particular, it stated that appropriations for expenditure on
new policies not previously authorised by special legislation, and grants under
section 96 of the Constitution, are not appropriations for the ordinary annual
services of the government, and shall be presented to the Senate in a separate
appropriation bill subject to amendment by the Senate. A core function of the
Senate is therefore to monitor the allocation of matters between the
appropriation bills, and the President of the Senate, as Chair of the Senate
Standing Committee on Appropriations and Staffing, accordingly draws to the
attention of the Minister for Finance any apparently incorrectly classified
expenditure following both budget and additional estimates (see Senate Standing
Committee on Appropriations and Staffing, 50th Report: Ordinary Annual
Services of the Government, June 2010, www.aph.gov.au/~/media/wopapub/senate/committee/app_ctte/
completed_inquiries/2008_10/50th_report/report_pdf.ashx (accessed 31 March
2015). A form of the Senate’s June 2010 resolution was first enunciated in the
Compact of 1965 following a refusal by the Senate to accept the government’s
decision to roll the appropriation bills into one appropriation bill: see Evans
and Laing, op. cit., p. 369 and J.R. Odgers, Australian Senate Practice,
6th edn, Royal Australian Institute of Public Administration (ACT Division),
Canberra, 1991, pp. 580–3).
[23] Appropriation bills no. 1 (budget estimates) and
no. 3 (additional estimates) contain the expenditure on ordinary annual
services. Appropriation bills no. 2 (budget estimates) and no. 4 (additional
estimates) contain the expenditure not for the ordinary annual services (new
money).
[24] For example, on 16 November 2014, the Group of
Twenty (G20) Leaders agreed to establish a Global Infrastructure Hub (the Hub)
in Sydney to help implement the G20 multi-year infrastructure initiative. The
Financial Framework (Supplementary Powers) Amendment (2014 Measures No. 3)
Regulation 2014 [F2014L01697] (the Regulation) added one new item to Part 4 of
Schedule 1AB to the FF(SP) regulations to establish legislative authority for
expenditure on the Hub. The Commonwealth government will contribute $30 million
over four years to the establishment and operation of the Hub to be
administered by Treasury (see Mid-Year Economic and Fiscal Outlook 2014–15,
Appendix A: Policy decisions taken since the 2014–15 Budget, Global
Infrastructure Hub (December 2014), p. 199). For the 2014–15 budget year,
Treasury sought $4.1 million (comprised of departmental expenses of $0.7
million and administered funding of $3.4 million) in the 2014–15 additional
estimates. There were no funds for the Department of Treasury in Appropriation
Bill No. 4 2014–2015 (see Particulars of Certain Proposed Additional
Expenditure in Respect of the Year Ending on 30 June 2015, p. 38). The
Treasury Portfolio Additional Estimates Statements 2014–15 (p. 11)
stated that the departmental and administered funding for this measure was
included in Appropriation Bill No. 3 2014–2015 (that is, in the non-amendable
appropriation bill for the ordinary annual services of government) (see also Particulars
of Proposed Additional Expenditure in Respect of the Year Ending on 30 June
2015, p. 70). Several elements of the arrangements in this case merit
consideration. First, given the Hub is a new initiative and not an ongoing
activity, it appears the expenditure was inappropriately included in
Appropriation Bill No. 3 (and should instead have been included in
Appropriation Bill No. 4). Second, it appears that the only legislative base
for the expenditure on the Hub was through the Regulation. Third, the
Regulation was registered on 12 December 2014, some two months before the
appropriation bills were introduced in the House of Representatives on 12
February 2015. The legislative authority for the expenditure (in this case, the
Regulation) was therefore in place before the appropriation bills were laid
before parliament. Given this timeline, it could be argued that the Regulation
signified that the expenditure on the Hub had been previously approved by the
parliament and therefore could legitimately be included in Appropriation Bill
No. 3. However, it should be noted that, although it was registered on 12
December 2014 (and therefore entered into force on 13 December 2014), the
Regulation was not tabled in parliament until 9 February 2015 (the first
sitting day of 2015). The Regulation was therefore still open to disallowance
up until and including 26 March 2015. Given the disallowance period extended
beyond both the date upon which the appropriation bills were introduced in the
House of Representatives and the date (17 March 2015) upon which the bills were
passed by both houses, it seems reasonable to question any assumption that the
expenditure on the Hub had been previously approved by the parliament, and
therefore reasonable to question why the expenditure on the Hub was included in
the non-amendable appropriation bill.
[25] Senate Standing Committee on Regulations and
Ordinances, Delegated Legislation Monitor, nos 5, 6, 10 and 17 of
2014 and no. 1 of 2015.
[26] See, for example, Delegated Legislation Monitor,
no. 10 of 2014 (27 August 2014), Financial Management and Accountability
Amendment (2014 Measures No. 6) Regulation 2014 [F2014L00841], pp. 5–10, in
which the committee drew attention to 34 schemes that appeared to involve
previously unauthorised expenditure.
[27] Williams v Commonwealth (No. 2) (2014) 252
CLR 416, 457 [36].
[28] The instrument was made on 26 June 2014 following
the High Court’s judgment in Williams (No. 2).
[29] Senator the Hon. Mathias Cormann, Minister for
Finance, letter to Senator John Williams, Chair, Senate Standing Committee on
Regulations and Ordinances, Delegated Legislation Monitor, no. 15 of
2014 (19 November 2014) Appendix 1.
[30] Senate Standing Committee on Regulations and
Ordinances, Delegated Legislation Monitor, no. 15 of 2014 (19 November
2014), p. 6. See also ‘Financial Framework (Supplementary Powers) Amendment
(2015 Measures No. 3) Regulation 2015 [F2015L00572], Delegated Legislation
Monitor, no. 13 of 2015 (13 October 2015), pp. 3–14.
[31] ibid.
[32] Glenn Ryall, ‘Williams v Commonwealth—a
turning point for parliamentary accountability and federalism in Australia?’, Papers
on Parliament, no. 60, March 2014, pp 131–48.
[33] Williams v. Commonwealth (2012) 248 CLR
156, 351–2 [516].
[34] Williams v. Commonwealth (2012) 248 CLR
156, 232–3 [136] and 355 [534].
[35] Such intergovernmental mechanisms provide for the
payment of considerable funds to the states and territories. The drawing limits
for GPFA payments and NPPs are specified in Appropriation Bill No. 2 (see Federal
Financial Relations Act 2009, sections 9 and 16 respectively) and for
2014–15 were $5 billion and $25 billion respectively (see Appropriation
Act (No. 2) 2014–2015 (Cth), subsections 13(4) and 13(5)). National
SPPs have a standing appropriation established under section 22 of the FFR Act,
which also sets the total expenditure for each category of National SPP (see Federal
Financial Relations Act 2009, sections 10–14). A standing appropriation is
a special appropriation contained within a bill that, once enacted, authorises
the expenditure of money for a defined period or until it is repealed. The
Commonwealth currently makes payments through three National SPPs: the National
Skills and Workforce Development SPP, the National Disability Services SPP and
the National Affordable Housing SPP. The indexation, total amount and
allocation amongst the states and territories are determined by disallowable
legislative instrument (see, for example, Federal Financial Relations (National
Specific Purpose Payments) Determination 2012–13 [F2014L00323]).
[36] Special appropriations were already identified as
a serious problem over twenty years ago, when 70 per cent of Commonwealth
government expenditure was not subject to annual parliamentary scrutiny and
approval in the annual appropriation bills (see, for example, Harry Evans,
‘Constitution, section 53—amendments and requests—disagreements between the
houses’, Papers on Parliament, no. 19, May 1993, p. 12). In 2002–03,
special appropriations accounted for more than 80 per cent of all
appropriations (see Senate Standing Committee on Finance and Public
Administration, Transparency and Accountability of Commonwealth Public
Funding and Expenditure (March 2007), p. 15). The current Clerk of the
Senate has also noted that the extensive use of special appropriations has
eroded parliamentary control of executive expenditure (see Rosemary Laing, ‘Is
less more? Towards better Commonwealth performance’, Commonwealth Financial Accountability
Review Discussion Paper (March 2012), Submission no. 7, [pp. 5–6],
www.pmra.finance.gov.au/files/2012/03/No.07-Clerk-of-the-Senate.pdf (accessed
31 March 2015).
[37] Senator the Hon. George Brandis, Parliamentary
Debates, Senate, 27 June 2012, pp. 4651–4.
[38] Anne Twomey, ‘Bringing down the House? Keeping
school chaplains means a surrender to the executive’, The Conversation, 27 June
2012,
http://theconversation.com/bringing-down-the-house-keeping-school-chaplains-means-a-surrender-to-the-executive-7926
(accessed 31 March 2015); Gabrielle Appleby and Adam Webster, ‘Parliament’s
role in constitutional interpretation’, Melbourne University Law Review,
vol. 37, 2013.
[39] Twomey, op. cit.
[40] ibid.
[41] Appleby and Webster, op. cit., p. 294.
[42] Twomey, op. cit.
[43] Mr Rob Oakeshott, Parliamentary Debates,
House of Representatives, 26 June 2012, pp. 8073–4.
[44] Geoffrey Lindell, ‘The changed landscape of the
executive power of the Commonwealth after the Williams case’, Monash
University Law Review, vol. 39, no. 2, 2013, p. 383.
[45] ibid.
[46] ibid., p. 384.
[47] The Financial Framework (Supplementary Powers)
Amendment (2015 Measures No. 3) Regulation 2015 [F2015L00572] added new
programs to the Financial Framework (Supplementary Powers) Regulations 1997 to
establish legislative authority for those programs. These included the
Mathematics by Inquiry program (to provide mathematics curriculum resources for
primary and secondary schools) and the Coding across the Curriculum program (to
support the introduction of algorithmic thinking and computer coding across
different year levels in Australian schools and the implementation and teaching
of the Australian Curriculum: Technologies in classrooms). The constitutional
authority for these programs was identified as the external affairs power
(namely, implementing obligations under the Convention on the Rights of the
Child (CRC) and the International Covenant on Economic, Social and Cultural
Rights (ICESCR)) as well as the executive nationhood power and the express
incidental power. However, the committee queried whether these were valid
grounds, noting that (a) to rely on the external affairs power the programs
would need to implement relatively precise obligations under the CRC and
ICESCR; and (b) the nationhood power provided for the executive to engage only
in enterprises and activities peculiarly adapted to the government of a nation,
and which could not otherwise be carried out for the benefit of the nation (see
Senate Standing Committee on Regulations and Ordinances, Delegated
Legislation Monitor no. 6 of 2015 (17 June 2015), pp. 10–14). The
minister’s response merely advised that legal advice had been obtained in
relation to the constitutional authority for the programs, prompting the
committee to request that the minister provide a copy of that legal advice, or
respond to its initial request for the minister’s assurance that the programs
were in fact supported by the constitutional grounds cited (see Delegated
Legislation Monitor no. 8 of 2015 (12 August 2015), pp. 19–23). On 13
August 2015, the Chair of the committee (Senator Williams) placed a protective
notice of motion on the regulation to extend the last day for disallowance to
14 October 2015. In his second response, the minister again did not directly
address the committee’s concerns, and rejected the committee’s request for the
legal advice on the matter, prompting the committee to repeat its requests (Delegated
Legislation Monitor no. 8 of 2015 (10 September 2015), pp. 8–14). The
minister’s third response again did not address the committee’s concerns or
provide the requested legal advice, prompting the committee, on 12 October
2015, to issue a final request that the minister provide either the legal
advice obtained or his personal assurance that the programs were in fact
supported by the constitutional grounds cited. Noting that the last day for
disallowance was 14 October 2015, the committee took the unusual step of
requesting the minister’s response within 24 hours (see Delegated
Legislation Monitor no. 12 of 2015 (12 October 2015), pp. 4–14). The
response was duly provided within this timeframe, and enabled the committee to
conclude its examination of the regulation on the basis of the minister’s
assurance that the government’s legal advice was that the programs were
‘supported by the external affairs power and/or the executive nationhood power
(coupled with the express incidental power)’. The committee left aside the
question of whether the minister’s refusal to provide the requested legal
advice was based on a valid public interest immunity claim (see Delegated
Legislation Monitor, no. 13 of 2015 (13 October 2015) pp. 3–14). The
committee Chair subsequently withdraw the notice of motion to disallow the
regulation on 14 October 2015.
[48] Williams v. Commonwealth (2012) 248 CLR
156, 235 [145].
[49] Minister for Finance (Senator Penny Wong), Parliamentary
Debates, Senate, 27 June 2012, p. 4648.