Chapter 2Key issues and committee view
2.1This chapter considers evidence received on the Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2023 (the bill).
2.2The committee received a small number of submissions and limited evidence on the provisions of the bill. Therefore, where appropriate, the committee has drawn on relevant information from previous committee reports to inform the discussion and committee view.
2.3The chapter concludes with the committee view and recommendation.
Views on the bill
2.4The committee received submissions and evidence from witnesses in support of the bill, arguing that the primary legislation is due for an update. While not necessarily opposing the premise of the bill, other submitters raised issues about particular aspects of the bill (as covered in the following subsections), including:
what the threshold should be for 'serious misconduct';
the meaning and application of the term 'serious misconduct';
concerns about the definition of 'serious misconduct' including 'an omission to act';
natural justice and procedural fairness;
constitutional issues; and
the perception that the bill is focused on one individual.
Support for the bill
2.5The Secular Association of NSW supported the bill, submitting that it upholds the public law principle of not continuing to pay an allowance or honorarium post-service where it is no longer appropriate.
2.6Ms Beth Heinrich, who gave evidence at the public hearing on 21 July, argued that the pensions of Governors-General should be reviewable:
I understand that all government pensions are reviewable, except the Governor-General's. Why is there an exception for this particular one? This fact needs to be rectified. There has to be accountability for such a huge amount, not forgetting any additional expenses. This entitlement is a gift from the Australian people, and it must be accountable for the continuation of such a large public outlay. My meagre age pension is reviewable. I am required to meet the criteria to be eligible. The generous governor-general entitlement has nothing to do with the Constitution; it was put in place by an act of parliament in 1974. Now almost 50 years have gone by and it's time for it to be updated by being amended to reflect accountability in the public interest.
2.7Survivors & Mates Support Network (SAMSN) also submitted in support for the bill. It drew attention to evidence from the December 2017 report from the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission), which found:
Many survivors are concerned about honours or memorials for alleged perpetrators of child sexual abuse, including facilities dedicated to or named after perpetrators. To meet these concerns, governments and institutions should review existing institutional honours, dedications and memorials to make sure they do not honour perpetrators of child sexual abuse.
2.8SAMSN was of the view that the bill recognised these concerns by rectifying what they argued is the continued injustice of individuals who have engaged in serious misconduct receiving large allowances, while victims or survivors of abuse often struggle financially.
2.9Ms Hetty Johnston AM, founder of child protection charity Bravehearts, submitted that public monies being paid to current or former Governors-General who had engaged in criminal acts was 'unacceptable'. Ms Johnston emphasised that, by virtue of the role, a Governor-General should be of exemplary character. Therefore, she argued that a Governor-General having been found to have engaged in serious misconduct would contradict the fundamental premise of the Governor-General as an ambassador of Australia and the Monarch.
2.10Beyond Abuse, a registered charity providing support to victims of child abuse, submitted that the need for the Governor-General Act 1974 (the Act) to be amended is 'obvious'. Beyond Abuse pointed out that under the current legislation, a former Governor-General could commit the following acts and still receive a publicly funded pension:
conceal child sexual abuse and protect known child molesters;
perpetrate child sexual abuse;
commit a crime such as murder or fraud;
lie to formal bodies of inquiry / give false evidence to formal inquiries;
become a mouth piece for a foreign government (Russia, China, etc); or
any range of conduct that might reasonably be considered, by the Australian people and by the Australian Parliament, to be 'contrary to the public interest'.
2.11Whilst not explicitly supporting the bill, the Anglican Church submitted that the reviewal of entitlements regarding the recipient's probity was ‘good public policy’ that should be maintained 'across all publicly held positions'. It argued that such policy would serve to encourage confidence in the integrity of public institutions and their offices.
Evidentiary threshold for a cessation event
2.12The committee received differing views on the appropriate threshold for misconduct that may enliven a cessation event.
2.13Mr Steven Fisher from Beyond Abuse argued that requiring a criminal conviction to meet the threshold to cease an allowance would be 'wrong' because 'there are many types of misconduct that may not be criminal offences but still breach the public trust'. These may 'sever the public's consent to continue paying the ex gratia gifts of money and luxury entitlements for life'.
2.14Dr Samuel Lawrence contended that the mechanism for removing entitlements for long-serving members of parliament in receipt of post-parliamentary allowances 'requires a much greater threshold of misconduct. In NSW, for example, only a criminal conviction is sufficient for a Premier to lose their parliamentary pension'. He further submitted that the bill contains no provision for a former Governor-General or their spouse to provide submissions:
There is already a robust justice system that has powers of inquiry to give determinations on matters of criminal or civil misconduct. It is not the role of the parliament, or a ministry, to pass judgements on such matters and this legislation should reflect this. Under this Bill, an individual could be found not guilty of criminal charges but still have their entitlements revoked.
2.15The Australian Monarchist League offered an alternative to that proposed by the bill, namely that only instances where a former Governor-General had been convicted of a crime in an Australian Court of Law would be sufficient to meet the threshold as a cessation event.
2.16By contrast, Beyond Abuse submitted that the bill has the appropriate threshold, and opposed raising it to require a criminal conviction, because:
There can be many types of serious misconduct which are not represented in a criminal statute but which the public consider egregious and would trigger public opinion that ongoing payment of taxpayer funded gifts to a person perpetrating that misconduct is inappropriate.
2.17The Anglican Church considered that a Ministerial declaration may be an appropriate mechanism to enliven a cessation event. However, given the considerable individual responsibility this would place on a single Minister to determine such an event, an 'external standard' should be present to help the Minister when making this declaration.
Meaning and application of the term 'serious misconduct'
2.18A number of submitters questioned how 'serious misconduct' would be defined, were the bill to be passed. Ms Kaye Hargreaves, for example, argued that the 'words "inappropriate, improper, wrong" are so vague that it would be unjust, arbitrary and capricious in the extreme to base any consequences… on them'. She further contended that a 'finding of serious misconduct should be tethered more than the opinion, personal whim or inclination of the Minister', suggesting that if the Minister was 'acting pursuant to the decision of a competent Tribunal, then the concern about the Minister acting ultra vires has been answered'.
2.19The Australian Monarchist League (the League) expressed concern that the meaning and application of the term 'serious misconduct' in the bill is not clearly defined. The League suggested that what may be considered a case of 'serious misconduct' should be clearly specified within the bill itself rather than relying on a non-exhaustive list and the broad set of examples (for example, as set out in the Explanatory Memorandum and Senator Shoebridge's second reading speech).
2.20Similarly, Dr Samuel Lawrence argued that under the 'broad definition' of 'serious misconduct' set out in the Explanatory Memorandum for the bill, 'an action such as a speeding fine could be grounds for "serious misconduct"'. Further, 'no provision is given for who should or would determine what is considered wrong or improper'.
2.21While the Attorney-General's Department did not make a submission to this inquiry, it previously made a separate submission on the discretion afforded to Parliament regarding interpretation of the phrase 'serious misconduct'. This submission was provided to the Legal and Constitutional Affairs Legislation Committee for its inquiry into the Judges' Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020.
2.22That bill sought to amend the Judges' Pensions Act 1968 (Judges' Pensions Act) to provide that a pension is not payable to a retired judge on account of serious misconduct while they were serving as a judge. The term 'serious misconduct' in that bill was derived from the initial Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2019, introduced to the Senate by former Senator Rachel Siewert.
2.23The Attorney-General's Department submitted to the Legal and Constitutional Affairs committee inquiry that interpretation of the phrase 'serious misconduct':
…would appear to remain within the sole remit of the Parliament which would have discretion to decide what evidence, if any, would be required to be presented and what standard or threshold ought to be met before passing a resolution that a former judge had engaged in 'serious misconduct' while in office.
'Serious misconduct' including an 'omission to act'
2.24Some evidence raised concerns about the definition of 'serious misconduct' in the bill including 'an omission to act'. For example, Dr Samuel Lawrence was of the view that the bill and its supporting materials 'insufficiently' define what an 'omission' is, despite this being grounds for a finding of 'serious misconduct'. Ms Kaye Hargreaves contended that the fact that the bill includes an omission under serious misconduct 'is alarmingly open-ended'. She called for further clarity on whether omitting to perform something was related or unrelated to the duties of a Governor-General.
2.25The Anglican Church submitted that the inclusion of 'omission to act' as a case of serious misconduct was of 'clear public interest', but similarly acknowledged that the 'the wide net' the term casts should be 'considered in the progress of this Bill'.
2.26The Reverend Jim Pilmer PSM OAM argued that in some instances, 'an act of omission is not necessarily a wilful act but the possible outcome of carefulness and potentially conflicting advice from various quarters', which may require 'sorting through a maze of information, disinformation and distressing possibilities'.
Natural justice and procedural fairness
2.27Some evidence suggested that the bill as is provides sufficient access to natural justice and procedural fairness. For example, Beyond Abuse argued that 'existing findings of misconduct… should reasonably be sufficient for the Parliament or Minister to be satisfied as to the fact of the misconduct'. They suggested that it would be 'unnecessary and inappropriate to duplicate procedures already completed' that have already found a person guilty of misconduct, such as bodies of inquiries.
2.28However, other evidence raised concerns about a perceived lack of natural justice provided for under the bill. For example, Mr James Keck contended that 'the proposed bill undermines the principles of the law that every Australian depends upon for freedom from persecution—including the presumption of innocence and the right of appeal'. This was echoed by Canon Professor John Morgan AM, who submitted:
If there is to be any amendment to the Act regarding cessation of retirement allowances such cessation must be on the basis of proven criminal actions, and subject to such being properly proven in a court of law and not on the basis of assertions and campaigns... Anything less is a denial of justice and basic rights under the laws of the Commonwealth. The Bill also lacks any reference to right of appeal.
2.29Ms Kaye Hargreaves raised concerns about the retrospective nature of certain clauses of the bill, and argued that the bill lacks:
the presumption of innocence;
the right to be informed of the charges and the evidence underpinning them;
the right to cross-examine witnesses; and
The right to appeal a decision.
2.30Mr Gavan Griffith KC, a former Solicitor-General of Australia, argued that the bill 'in form and substance offends every principle of legislative propriety and fairness'. He further contended that the bill:
…is framed in terms that are repugnant, and offensive to almost every basal principle of the Rule of Law and proper and fair practice to establish legislative, and administrative law standards, adhered by the Commonwealth's Parliament and its executive. In particular:
(a)In fact, if not in form, it is an ad hominem law directed to effect one person. Were it creating a criminal offence it would be invalid. It is no less offensive for imposing a forfeiture.
(b)It is of unlimited retrospective operation.
(c)It offends principles of double jeopardy.
(d)In spirit and in intent it constitutes a prohibited Act of Attainder and Penalties.
(e)The definition of 'misconduct' is unconfined by other than open-ended parliamentary discretion and prejudice.
(f)Concepts of procedural fairness are completely excluded.
(g)The Bill offends fundamental principles of small 'c' constitutional law and procedural fairness: the Australian ethos of 'a fair go'.
2.31An Act or Bill of Attainder is an act stating that a particular person is guilty of an offence because of their past conduct and imposes a penalty for that offence. Historically, in the United Kingdom, Acts of Attainder were a method through which the Parliament passed judgement on an accused person as if the Parliament was a court of law. Under Australian common law, Bills of Attainder are considered to 'violate the constitutional separation of powers' because the legislature cannot 'usurp the distinctly judicial power of the courts to determine criminal guilt'. They may also be considered problematic because the legislature does not have procedural fairness processes in place to ensure that the rule of law is applied equally in the same way that courts are required to do so.
2.32In response to questioning about the assertion that the bill might constitute an Act of Attainder, Mr David Lewis, General Counsel for the Office of Constitutional Law at the Attorney-General's Department, told the committee at the public hearing that his view was that some of Mr Griffith's arguments:
…related particularly to common-law or constitutional concepts and some of them were just broader points, I think, about the appropriateness of the bill. You might know that a bill of attainder or a bill of pains and penalties is essentially a legislative finding of criminal guilt. This bill doesn't seem to depend expressly on that sort of concept of a legislative finding of criminal guilt, but I wonder if the submission is partly speaking about those concepts in a more general way, rather than about the strict application of them.
2.33In response to questions about whether existing state and federal provisions that allow for judicial officers to be removed by a resolution of the Parliament contain express procedural fairness provisions, Ms Alice Linacre, the First Assistant Secretary of the Courts, Tribunals and Commercial Division at the Attorney-General's Department responded:
I can't provide legal advice, but certainly, if we are looking at [the bill compared with those provisions] as a direct point of comparison, it wouldn't seem novel… [But] I would offer a word of caution, without providing any advice about comparisons between judicial arrangements and the Governor-General, not because I can draw to your attention any particular concerns but just because they are two very different things.
Constitutional issues
2.34Some submitters suggested certain provisions of the bill may be unconstitutional. Mr Gavan Griffith KC (a former Commonwealth Solicitor-General) argued that the bill's 'purpose and scheme' would lead to the Parliament acting or performing something beyond its legal power or authority. He pointed to section 51 of the Constitution, which allows the Parliament to acquire 'on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws'.
2.35Mr Griffith informed the committee that, in his view, the pension and other entitlements of a former Governor-General and their surviving spouse 'constitute property rights whose abrogation under the terms established by the Bill would constitute an acquisition other than just terms', as required by Section 51 of the Constitution. For that reason, the Act 'would be invalid' if enacted.
2.36Mr Griffith called for, 'at the least', the committee to seek the opinion of the Solicitor-General before the bill advances.
2.37The Australian Monarchist League also raised potential constitutional concerns with the bill, arguing that the relationship between the Parliament, Executive Government and Governor-General should be independent. The League emphasised that, where a former Governor-General or their spouse is alleged to have engaged in misconduct or criminal activity, proper processes must be followed and therefore:
…so long as the past Vice-Regent has duly cooperated with all criminal or civil proceedings in respect of him or herself, interfering with the entitlement or administrative features of vice-regal retirement is not a role that the Parliament or a Minister of the crown ought to play.
2.38At the public hearing on 21 July, Mr David Lewis, General Counsel for the Office of Constitutional Law at the Attorney-General's Department, told the committee:
I wouldn't propose to get into legal questions about the operation of the bill, but I would make a small plug for my small area of responsibility, which is constitutional law: if there were a bill to be considered for enactment, I would usually suggest that people get constitutional law advice about that.
2.39Mr Lewis further clarified in general terms that:
… at a very high level, that, if you're considering a piece of legislation, there are a few very broad categories that you often seek advice on. One is: is there any constitutional power to enact this legislation? Another one is: are there any constitutional limitations that would constrain what can be in the legislation? Obviously in this case there are a couple of express constitutional provisions which might be relevant. There's section 3, which provides for the salary of the Governor-General. There has been the question raised, not only by Mr Griffith but also by a few other submitters, about whether or not there'd be a question about acquisition of property on just terms, which is in section 51(xxxi) of the Constitution. But I really need to emphasise that I am referring to issues which you would consider, and I'm not expressing a view on any of those issues.
Focus on one individual
2.40Some submitters and witnesses addressed the issue of the former Governor-General, Dr Peter Hollingworth, who was mentioned in the bill's introductory speech. Ms Beth Heinrich told the committee at the public hearing:
In this case, Dr Hollingworth was found guilty of misconduct by the professional standards board of the Anglican Church, in that he allowed a known paedophile to stay a priest. I think that negates any entitlement from the purse of the public. There is another thing too: people seem to have forgotten that I may look like an adult woman, but inside me is the child that was hurt terribly by Dr Hollingworth, when he was the Governor-General, vilifying me on national television... Governors-general should be beyond reproach, nothing in their characters or anything they've done. They've got to be an example to the nation—the highest esteem.
2.41Mr Steven Fisher, the Chief Executive Officer of Beyond Abuse, pleaded with the committee to support the bill:
On behalf of survivors of abuse and on behalf of the taxpayers of Australia, we ask that every parliamentarian support the bill and that all political parties adopt the policy objectives. And please do not politicise this bill.
This bill is appropriate. It's important, and it is proportionate to the mischief it is trying to remedy. The reform in the bill can be viewed from two perspectives: firstly, as a general principle, as it applies to all former governors-general and, secondly, from the perspective of examining the specific instance of a former governor-general who has been found guilty of misconduct. Even if we were to put aside the fact that there is a specific former governor-general found guilty of misconduct, this bill is good policy. This is because it is plugging a gap in the existing legislation, the Governor-General Act 1974, and it's a gap that desperately needs to be plugged…
2.42Mr Fisher further argued that passing the bill would help survivors 'to know that the government does not support people who have previously done the wrong thing. It gives them somewhat of a lift. Hope is the word that springs to mind'.
2.43Ms Prue Gregory from Survivors & Mates Support Network (SAMSN) told the committee 'we haven't even been game enough to talk about this legislation and the proposed amendment, because we know we would have a riot on our hands'. This riot, she explained, would occur if survivors of child sexual abuse were aware of the contrast between the allowance paid to former Governors-General, and 'the struggles' survivors of institutional child sexual abuse 'have to be acknowledged let alone to receive any money'.
2.44Echoing the above sentiments, Ms Hetty Johnston AM noted that survivors of institutional child sexual abuse 'are out there watching this, shaking their heads, and the message to everyone is that if there is a powerful person and they're protected then they're untouchable'.
2.45Dr Samuel Lawrence argued that although the bill is general in its language, it 'is impossible to deny that it is targeted at Dr Peter Hollingworth'. Further:
Rather than being a mechanism to ensure probity in public office, this Bill will be viewed as an attempt to punish an individual – in this case Dr Hollingworth – in relation to matters that have now been interrogated by four separate inquires over a period of more than 20 years... It should be noted that none of these inquiries recommended action against Dr Hollingworth, nor did they find any 'fundamental moral failing'.
2.46Mr James Keck, who stated he had never met Dr Peter Hollingworth, noted that as a surgeon he often saw 'the severe long term damage sustained by victims of childhood sexual abuse'. Further, as 'a church-attending Anglican I am deeply ashamed that the church I am part of should have been in any way part of the plague of child abuse', iterating his commitment to the protection of children and 'supporting appropriate reparation to victims and punishment of perpetrators of childhood sexual abuse'. However, he argued that 'the ongoing pursuit and punishment of Dr Hollingworth does not in any way further these aspirations'.
Committee view
Context for the bill
2.47As noted at the beginning of this report, the committee acknowledges the context in which this bill has been introduced. In the bill's introduction to the Senate, Senator Shoebridge questioned the appropriateness of former Governor-General, Dr Peter Hollingworth, continuing to receive a publicly funded allowance despite ongoing allegations and inquiries into his handling of child sexual abuse claims brought to him during his time as Archbishop of the Brisbane diocese in the 1990s. His time as Archbishop predated his appointment as Governor-General in 2001.
2.48The committee notes that the Royal Commission into Institutional Responses to Child Sexual Abuse commissioned by the Gillard Government found, amongst other things, that the institutions involved had been reluctant to address the issue.
2.49The extent to which the conduct of a former Governor-General should call into question their receipt of a public allowance is a legitimate matter of public debate. Most submitters and witnesses sought to put forward their views in this regard. The committee expects that submitters and witnesses will want to continue raising these concerns.
Direction from the Senate to the committee
2.50Having acknowledged the context, under the terms of reference from the Senate, the committee was not asked to adjudicate on these matters. Instead, the committee observes that the specific task the Senate conferred on the committee was to inquire and report on the provisions of the bill itself.
2.51The committee notes there is no provision under existing law to remove the pension to which a retired Governor-General is entitled. Therefore, the issue before the committee is the appropriateness and implications of the provisions in the bill which provide a power to cease the pension and benefits payable to a former Governor-General when it is deemed no longer in the public interest that those payments be continued.
2.52The committee considers four aspects of the bill:
the phrase 'serious misconduct', with specific reference to the absence of a definition in the bill and the low evidentiary threshold;
the retrospective nature of the bill;
the delegation of power to determine a cessation event to a single House of Parliament (or the Minister); and
Acts of Attainder and access to procedural fairness.
2.53These issues are considered in detail below.
Definition and interpretation of serious misconduct, and the evidentiary threshold
2.54Four related issues arise around the definition and interpretation of serious misconduct and the evidentiary threshold.
2.55First, the bill does not define serious misconduct. The explanatory memorandum explains that 'serious misconduct' in the bill would be 'inappropriate, improper, wrong, or unlawful conduct'. As currently drafted, the term could include both criminal and non-criminal acts.
2.56Second, interpretation of what may constitute a case of 'serious misconduct' would be within the remit of a House of Parliament, or the Minister.
2.57Third, the bill has a low evidentiary threshold for establishing serious misconduct by a former Governor-General. Under proposed subsection 4AGB(2), the Minister must set out the reasons for making the declaration and present a summary of related information taken into account when making the declaration. The bill does not stipulate that an allegation must be proved either to the criminal standard (beyond a reasonable doubt) or the civil standard (on the balance of probabilities).
2.58Fourth, the bill does not require the Minister to provide a Governor-General or former Governor-General with a reasonable opportunity to refute any allegations and present his or her case before a decision is reached that might adversely affect them.
2.59The committee has concerns about all the above matters.
2.60While the committee acknowledges that the Explanatory Memorandum provides guidance as to what may constitute serious misconduct, the committee is concerned about the lack of a definition in the bill and the imprecise and unduly broad guidance in the Explanatory Memorandum is compounded by the fact that interpretation of whether a certain event constitutes serious misconduct in any given case would be vested in a single House of Parliament or, alternatively, the Minister.
2.61In addition to these concerns, the committee notes the low evidentiary threshold for determining a cessation event. In this regard, the committee considers that the bill vests undue discretion in a single House of Parliament or a Minister to determine what evidence would be required to be presented and whether it met the evidentiary threshold for serious misconduct.
2.62Finally, the committee notes the failure of the bill to explicitly afford an avenue for natural justice or procedural fairness to a Governor-General or former Governor-General. This is discussed in further detail below.
Retrospective effect
2.63A second area of concern is the bill's provision for retrospective effect. New subsection 4AGB(6) provides that, when making a declaration, the Minister must disregard when the former Governor-General was appointed to the office and when the 'serious misconduct' took place. In other words, the consequences provided for in the bill could be applied to the conduct of a Governor General or former Governor-General regardless of when the conduct took place and whether they were in office or not.
2.64The committee notes that the application of laws with retrospective effect are generally considered to violate one of the most important principles enshrined in the rule of law. That is, that the law is capable of being known to everyone, so that everyone can comply. In this respect, no penalty, including the loss of retirement benefits, should apply in respect of conduct that was not subject to a penalty at the time it was committed. Retrospective legislation contravenes this principle by unfairly attaching new consequences to prior events.
2.65The issue of retrospectivity has arisen in previous Senate inquiries. For example, in its 15th Scrutiny Digest of 2020, the Scrutiny of Bills Committee commented on the Judges' Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020 and reiterated its:
…long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively).
2.66To that end, the committee notes the basic principle of the rule of law that, in general, laws should only operate prospectively. Accordingly, the committee considers laws with retrospective effect should only be made in rare circumstances and with sufficiently strong justification.
2.67The committee considers the case has not been made for retrospectivity given the other serious deficiencies identified in the bill, which could lead to politically motivated attempts to harm a former Governor-General that would not align with community expectations.
Resolution by one House of Parliament only
2.68Proposed section 4AGC provides that a House of Parliament may pass a resolution declaring that a former Governor-General, or their spouse, cease to be paid an allowance if they have engaged in serious misconduct.
2.69To examine the appropriateness of vesting the power to determine a cessation event in one House of Parliament only, the committee considers whether there are comparable precedents to the power proposed in the bill. To that end, the committee considers:
the bicameral system of the Commonwealth Parliament, including the need for concurrence on primary legislation and the ability of either House to disallow delegated legislation;
provisions under section 72 of the Australian Constitution (the Constitution) and Section 13 of the Administrative Appeals Tribunal Act 1975; and
the Queensland Governors (Salary and Pensions) Act 2003.
Bicameral system of Commonwealth Parliament and the disallowance mechanism
2.70Section 1 of the Constitution vests the legislative power of the Commonwealth in the Parliament, which consists of the monarch represented by the Governor-General, the Senate, and the House of Representatives. The agreement of each of the three components of the Parliament to a proposed law is required to make a law of the Commonwealth.
2.71Delegated legislation is law made by the executive government without parliamentary enactment. The principle that laws should be made by the elected representatives of the people in Parliament and not by the executive government has been largely preserved by a system for the parliamentary control of executive law-making. This system is founded on the ability of either House of the Parliament to disallow (veto) laws made by executive office-holders.
2.72On its face, the ability of either House of Parliament to disallow delegated legislation has the appearance of one House of Parliament acting in isolation. However, it can also be seen as an accountability and control mechanism that fulfils the Australian Constitutional framework of checks and balances under a separation of powers by effectively providing a mechanism for vetoing executive law making.
2.73Therefore, the committee is not persuaded that the ability of either House to disallow delegated legislation is analogous to the unilateral exercise of power proposed in the bill.
Section 72 of the Constitution and section 13 of the Administrative Appeals Tribunal Act 1975
2.74Precedents exist for the removal of persons from a position upon resolution of both Houses of Parliament.
2.75Section 72 of the Constitution provides for the removal of a High Court Judge by an address from both Houses of Parliament in the same session on the ground of proved misbehaviour or incapacity.
2.76Section 13 of the Administrative Appeals Tribunal Act 1975 provides for the termination of a tribunal member upon an address by both Houses of Parliament to the Governor-General in the same session on the ground of proved misbehaviour, or physical or mental incapacity.
2.77However, the committee notes that in both the above instances, two requirements must be met that are not proposed in the bill.
2.78First, both House of the Parliaments must concur on the removal. By contrast, the bill provides that resolution by one House of Parliament only is sufficient to constitute a cessation event.
2.79Second, both the Constitution and the Administrative Appeals Tribunal Act 1975 stipulate proved misbehaviour as a ground for removal. This is a higher threshold than that proposed by the bill.
2.80Given the above provisions in section 72 of the Constitution and section 13 of the Administrative Appeals Tribunal Act 1975, the committee questions the advisability of the bill's proposal to vest the power to determine a cessation event in one House of Parliament only rather than both.
Queensland Governors (Salary and Pensions) Act 2003
2.81Finally, the Explanatory Memorandum cites the Queensland government model as a precedent for the bill.
2.82However, the committee notes that section 18 in Division 4 of the Queensland Governors (Salary and Pensions) Act 2003 (the Qld Act) contains provisions not replicated in the bill.
2.83For example, section 18 of the Qld Act provides that a prescribed entitlement ends if the Legislative Assembly resolves that there is proved misbehaviour justifying ending the prescribed entitlement. Further, misbehaviour justifying ending a prescribed entitlement is proved only if the Legislative Assembly accepts a finding of an established tribunal, stated in a report of the established tribunal, that, on the balance of probabilities, the accountable Governor misbehaved in a way that justifies ending the prescribed entitlement.
2.84Given the greater clarity, thresholds, and safeguards in section 18 of the Qld Act, the committee does not consider it appropriate to cite the Queensland Governors (Salary and Pensions) Act 2003 as an established precedent for the bill because the current bill fails to replicate those same safeguards and due process.
Acts of Attainder and access to procedural fairness
2.85While the bill does not make 'serious misconduct' an explicit crime, it does impose a penalty for a specific action that a House of Parliament or Minister would determine meets the threshold for that penalty. Unlike in the judicial system, any declaration of 'serious misconduct' made under the provisions of the bill may not afford the person against whom that finding was made access to procedural fairness, or basic rights under the rule of law that would be expected by the community, including the opportunity to respond to adverse material.
2.86During the hearing, the Chair raised concerns about such a broad definition of misconduct being used inappropriately, in a politically motivated way, noting that the power to act on and define misconduct rested with the Minister or a House of Parliament.
2.87The Attorney General’s Department was not able to assuage these concerns, highlighting that as it was a Private Senators' Bill, they could not comment on the policy behind the bill or whether it could have such an effect.
2.88With respect to the above, there is the risk of the Parliament inserting itself into what would ordinarily be expected to be the jurisdiction of the courts and returning to a system in which motions of the Parliament resemble Acts of Attainder. Under Australian common law, Acts of Attainder are considered to violate the constitutional separation of powers because the legislature cannot assume the distinctly judicial power of the courts to determine whether a person is guilty of something.
2.89As noted by the General Counsel of the Office of Constitutional Law at the Attorney-General's Department, when considering a piece of legislation, advice should be sought on the following questions:
(a)What is the constitutional power to enact this legislation; and
(b)Are there any constitutional limitations that would constrain what can be in the legislation?
2.90The bill engages with several constitutional matters, including the issue of whether the bill would confer powers on the Parliament that should be left with the courts for the reasons outlined above, as well as whether ceasing a payment would amount to acquisition of property on just terms, if access to procedural fairness was not offered.
2.91It is not for this committee to determine whether the bill constitutes an Act of Attainder and is therefore unconstitutional. However, these concerns were raised by a former Solicitor-General of Australia and should not be dismissed summarily. The committee emphasises that the same former Solicitor-General suggested that the Senate, and the entire Parliament, would 'demean itself and its reputation' were the committee to agree to pass the bill. As he argued, at the very least, those considering agreeing to the passage of the bill should seek the opinion of the current Solicitor-General before the bill reaches the final stage of debate.
Concluding remarks
2.92The committee concurs with the Royal Commission's findings that the sexual abuse of a child is the greatest of personal violations perpetrated against the most vulnerable in our community and that it is one of the most traumatic and potentially damaging experiences and can have lifelong adverse consequences.
2.93However, the bill does not provide a satisfactory mechanism for testing the allegations of misconduct levelled against a former Governor-General.
2.94Finally, the bill may be unconstitutional, because it is a matter for the courts to determine whether someone is guilty of something, not the legislature. Further, unlike in the courts, the bill would not require procedural fairness to be afforded to a person who the Minister or a House of Parliament considers to have committed 'serious misconduct'. The committee considers that the risks of passing a bill that potentially violates key principles of the Constitution and fundamental principles of the rule of law upon which the Australian legal and political systems are founded is too great. Such a decision would set a precedent that the Parliament should not make.
2.95For the reasons set out above, the committee recommends that the Senate not pass the bill.
2.96The committee recommends that the Senate not pass the bill.
Senator Louise Pratt
Chair