Chapter 5 - Standing and Select Committees

Standing Committees

26 Estimates

Annual and additional estimates, contained in the documents presenting the particulars of proposed expenditure and additional expenditure, shall be referred to the legislative and general purpose standing committees for examination and report.
The committees shall hear evidence on the estimates in public session.
Not more than 4 committees shall hear evidence on the estimates simultaneously.
When a committee hears evidence on the estimates, the chair shall, without motion, call on items of expenditure in the order decided upon and declare the proposed expenditure open for examination.
The committees may ask for explanations from ministers in the Senate, or officers, relating to the items of proposed expenditure.
The report of a committee on the estimates may propose the further consideration of any items.
A Hansard report of the committees’ hearings of evidence on the estimates shall be circulated, in a manner similar to the daily Senate Hansards, as soon as practicable after each day’s proceedings.
Participating membership of committees shall not have effect in respect of proceedings on estimates, other than the formation of a quorum, but any senator may attend a meeting of a committee in relation to estimates, question witnesses and participate in the deliberations of the committee at such a meeting and add a reservation to a report relating to estimates.
After a committee has considered proposed expenditure referred to it by the Senate and agreed to its report to the Senate, the committee shall fix:
1. a day for the submission to the committee of any written answers or additional information relating to the proposed expenditure; and
2. in respect of the annual estimates only, a day for the commencement of supplementary meetings of the committee to consider matters relating to the proposed expenditure.
The day fixed under subparagraph (9)(b) shall be not less than 10 days after the day fixed under subparagraph (9)(a).
A senator may lodge with a committee, not less than 3 working days before the day fixed under subparagraph (9)(b), notice of matters, relating to the written answers or additional information, or otherwise relating to the proposed expenditure referred to the committee, which the senator wishes to raise at the supplementary meetings of the committee. A notice shall be forwarded by the committee to the minister in the Senate responsible for the matters to which the notice relates.
A committee may determine at any time the number and duration of any supplementary meetings.
At a supplementary meeting, questions may be put to ministers or officers relating to matters of which notice has been given, and the proceedings of the committee shall be confined to those matters, but the committee shall otherwise conduct the proceedings in accordance with this standing order.
A committee may report to the Senate any recommendation for further action by the Senate arising from the committee’s supplementary meetings.
Written questions relating to the estimates may be supplied to the secretaries of the committees, who shall distribute them to the relevant departments and to members of the committees. Answers shall be supplied to, and circulated by, the secretaries.

Amendment history

Adopted:

[five estimates committees established by resolution on 11 June 1970, J.187–90; membership formula and other provisions contained in a separate resolution, 19 August 1970, J.253]
[six committees appointed 14 March 1973, J.49–51, and re-appointed 1 October 1974, J.236–37; 28 April 1976, J.147–48]
16 March 1977, J.26–27, as SO36AB

Amended:

16 August 1978, J.302–03 (membership formula adjusted to restore references to minority groups as well as independent senators)
[23 August 1990, J.236–37 (order of continuing effect regularising the practice of placing written questions on notice at estimates hearings)]
[6 May 1993, J.96–99 (procedure for supplementary hearings of estimates committees adopted as an order of continuing effect)]
24 August 1994, J.2049–51 (to take effect 10 October 1994) (in the restructured committee system, estimates committees were abolished and their functions taken over by eight legislation committees)
13 February 1997, J.1447 (to take effect 24 February 1997) (participating membership not to apply to estimates hearings; supplementary hearings incorporated from continuing order of 6 May 1993; provision for written questions on notice incorporated from order of continuing effect of 23 August 1990)
6 March 1997, J.1581 (period for giving notice of matters to be raised at supplementary hearings clarified as “not less than 3 working days”)
6 February 2001, J.3860 (supplementary hearings on additional estimates dropped)
19 November 2002, J.1145 (consequential amendment relating to ability of participating members to count towards a quorum for estimates hearings)
14 August 2006, J.2474–82 (to take effect 11 September 2006) (legislative and general purpose standing committees subsumed the estimates function)
[13 May 2009, J.1942–46 (to take effect 14 May 2009) (amendments to SO 25 restored the pre–2006 system of paired committees but there were no amendments to SO 26)]

1989 revision: Old SO 36AB renumbered as SO 26; language simplified and superfluous expressions and provisions removed

Commentary

An estimates hearing of the Rural and Regional Affaits and Transport Legislation Committee(Photo courtesy of AUSPIC)

Standing order 26 covers the estimates scrutiny function now carried out by the appropriate legislative and general purpose standing committees established under standing order 25. In its earlier forms it also provided for the appointment of the estimates committees themselves and the related membership formula and chairing arrangements.

The original estimates committees came into being at the same time as the first legislative and general purpose standing committees on 11 June 1970 but there have been no separate estimates committees since the first major restructuring of the committee system in 1994. For an account of their establishment, including references to significant commentary, see Papers on Parliament No. 51 (pages 108-113).

Detailed examination of the government’s estimates of expenditure was conducted in committee of the whole from 1961.[1] This provided the Senate with a means of scrutinising the government’s expenditure proposals before it received the appropriation bills from the House of Representatives and, therefore, of maximising the time available for such consideration. The disadvantage of this method was that questions were fielded by ministers only. Although advisers were present in the advisers’ benches in the chamber to assist them, limited space meant that ministers may not have immediate access to the full range of advice required to provide satisfactory answers. Delegating the scrutiny task to committees would give senators direct access to the officers responsible for administering the various government programs, allowing a much more detailed level of scrutiny.

The origin of the estimates scrutiny function in the chamber determined the character of the original estimates committees which were staffed by procedural officers on a part-time basis rather than by Committee Office research and secretariat staff. The organisation of the committees and their portfolio coverage was also determined by practical considerations. Named Estimates Committee A to E (and later, F, when a sixth committee was added)[2], the committees monitored changing groups of departments and agencies whose composition was largely determined by the number and responsibilities of Senate ministers. The committees were operational only when they had been referred the budget or additional estimates. In practice, the presentation of a report signalled the end of their operations until the next reference was made. The method of proceeding mirrored procedures in committee of the whole, in that the chair called on items of expenditure in the order that had been decided upon and declared each item open for questioning. Questioning continued until senators had no further questions on that item. The estimates process was in large part intended as a substitute for the detailed consideration of the appropriation bills in committee of the whole, although it was never intended to replace committee of the whole entirely. Estimates committee reports could propose further consideration of any item and individual members were also entitled to add reservations to the report proposing matters for further consideration.

These origins also determined the limits of the powers of estimates committees which have always been confined to operating in public session only.[3] A second limitation is that committees are restricted to asking for explanations from ministers in the Senate or officers, relating to items of proposed expenditure. While not defined, “officers” has been taken to include employees of the public service, statutory authorities and government corporations. It has also included consultants and contractors, and officers of oversight or coordinating agencies (such as the Australian National Audit Office or the Department of Finance and Deregulation) who may be asked questions about the operations of the overseen agency. On a number of occasions, the Senate has declared that there are no areas of expenditure of public funds where any person – including independent statutory authorities – has a discretion to withhold information from the Parliament or its committees.[4] Despite limitations, then, the scope of estimates scrutiny has been established by the Senate as being very wide-ranging.

In further recognition of its origins, changes to the estimates process have gone hand in hand with changes to the consideration of appropriation bills in committee of the whole (see SO 115). In the main, these changes have been designed to maximise the flexibility and effectiveness of estimates hearings and at the same time preserve the efficiency of the legislative process by limiting opportunities to repeat the same matters covered by the estimates hearings, except in particular circumstances.

The history of the original estimates committees follows a similar path to the legislative and general purpose standing committees, both having been established at the same time and re-appointed periodically until incorporated into the standing orders in 1977 (see SO 25). The number of estimates committees was increased from five to six in 1973 and, at the same time, the restriction on not more than three committees meeting simultaneously was added.[5] This restriction recognised the pressure on individual senators and ministers needing to be in too many places at once.

Unless there are exceptional circumstances, estimates hearings are not held while the Senate is sitting.[6] Before 1997, estimates committees would convene once the Senate had adjourned for the day (and a limited amount of business was considered on those days to allow an early adjournment). For 1997, estimates-only days were set aside for consideration of the budget estimates although the old practice was still to apply to additional estimates in February and November 1997.[7] By late 1997, however, the advantages of estimates-only days were self-evident and the plan for the November additional estimates hearings that year was changed accordingly (including with the later addition of an extra day, also taken from scheduled sitting days).[8] The principal advantages of estimates-only days are a known starting time and the resulting certainty that a definite amount of time is available for the day’s program. They have been a feature of the Senate’s sitting schedules since 1997, although the number and distribution of estimates days has often been hotly debated.

The 1989 revision removed similar provisions to those removed from SO 25 and for similar reasons: authority for committees to meet notwithstanding any vacancy, because it was considered unnecessary; the prohibition on committees meeting while the Senate was sitting, because it was covered in SO 33; and the provision for the resolution referring the estimates for consideration to set a reporting date, because it was also considered superfluous.

An important development in the estimates process was the acceptance of the practice of placing questions on notice before the hearings. For several years, it had apparently been the practice for some senators to provide written questions to departments before hearings in the expectation that the departments would provide written answers at the hearings. One estimates committee reported its concern in November 1987 that this practice was being used by senators to obtain information without the need to attend hearings. It was also confusing for senators asking questions to be told that written answers had already been provided. The issue was referred to the Procedure Committee for consideration. The Procedure Committee found that other estimates committees had commented favourably on the practice and recommended that the practice be regularised by having all questions on notice, and all answers, coordinated by the committee secretary who would ensure their appropriate distribution. The committee considered that there was no doubt that such a practice was part of the proceedings of a committee and therefore attracted parliamentary privilege.[9] The recommendation was adopted by the Senate on 23 August 1990 and operated as an order of continuing effect until its incorporation as paragraph (14) in the 1997 consolidation.[10]

Answrs to questions taken on notice are tabled as additional information

Over time, the practice of putting questions on notice at, as well as before, hearings developed as a response to more concerted attempts by committees to program hearings more systematically. Some committees allocated specific times to programs or agencies and any senators unable to complete their questions relating to those programs or agencies within the allotted time were encouraged to place them on notice. The Procedure Committee endorsed such practices in its First Report of 1995.[11] Committees now regularly set deadlines for the receipt of questions on notice, usually shortly after the hearings conclude. Answers to questions taken on notice in the estimates process are subject to the procedures in SO 74(5) allowing follow-up action to be taken if answers are not received within 30 days of the deadlines set by the committees for receipt of answers (see SO 74).

A major change to the estimates process occurred in 1993 with the introduction of supplementary hearings as a follow-up to the main round of hearings. This procedure was designed, among other things, to address the problem of unanswered questions on notice by providing a forum in which late answers could be pursued. Committees were required to set dates for ministers and agencies to provide answers to questions taken on notice at the initial hearings. They were also required to set dates for the commencement of supplementary hearings which were then limited to matters of which notice had been given. Committees were given the option of reporting to the Senate on any matters arising out of their supplementary hearings. These procedures were adopted as an order of continuing effect on 6 May 1993, as recommended by the Procedure Committee in its discussion paper on estimates committees and appropriation bills, presented on 19 December 1991.[12]

At the same time, consideration of the appropriation bills in committee of the whole was dispensed with – provided the bills had been considered and reported on under this standing order – unless amendments or requests for amendments to the bills had been circulated, in which case debate in committee of the whole was confined to the purpose of the amendment or request and the questions to be put were correspondingly limited (see SO 115). If the bills have not been reported on then the committee of the whole stage cannot be dispensed with. This limitation replaced an earlier resolution limiting debate on appropriation bills in committee of the whole to matters in relation to which committee reports or individual senators by way of reservations attached to reports, had made recommendations that the matters be further examined by the Senate. The earlier resolution, agreed to on 5 December 1989, had been adopted on the recommendation of the Select Committee on Legislation Procedures.[13]

These changes were incorporated into the standing orders on 13 February 1997.[14] Some minor modifications to the notice period for raising matters to be considered at supplementary estimates were adopted the following month and, in 2001, the supplementary hearings for additional estimates were dropped owing to their proximity to the main round of budget estimates hearings and the existing opportunity to follow up matters of concern at those hearings.[15]

As originally constituted, estimates committees did not have any other inquiry powers but this was to change with the first restructuring of the committee system in 1994. The restructuring involved the abolition of separate estimates committees and the absorption of the estimates function by the new legislation committees which were also responsible for considering any bills referred by the Senate, for the examination of annual reports of agencies, and for monitoring agency performance. No more than four legislation committees considering estimates could meet at one time. For the first time, the estimates function would be performed by committees with full-time secretariat support which was expanded to include dedicated estimates officers. As the estimates function was undertaken by legislation committees with full inquiry powers to send for persons and documents, these powers were now available for estimates, provided that the legislation committees, with their government majorities, agreed to apply them. The redesigned system, in the form put to the Senate, had excluded these powers from applying to estimates but an amendment to omit the exclusion was successful and these powers were thus available, in theory, to committees considering estimates.[16]

A feature of the restructured committee system was the new category of participating membership (see SO 25). Formerly, any senator could attend an estimates hearing and ask questions. When participating membership proved administratively unwieldy for estimates, a recommendation that it not apply to estimates was incorporated into the 1997 revision of the standing orders by the inclusion of a provision restoring the right of any senator to attend an estimates hearing and ask questions.[17] Any senator could now also attach a reservation to an estimates report, although this no longer conferred a right to raise the subject of the reservation in the committee of the whole stage on the appropriation bills. The only respect in which participating membership of a committee is now relevant to estimates hearings is in relation to the formation of a quorum when a majority of the committee is not present. A modification agreed to in November 2002 allowed participating members to count towards a quorum, including for estimates hearings.

With the second major restructuring of the committee system in August 2006, the functions of the former references and legislation committees, including estimates, were taken over by the second generation bearing the name of legislative and general purpose standing committees which became truly all-purpose committees. The situation did not last, however, and in 2009, with similar conditions prevailing to those which preceded the 1994 restructure, the system returned to paired legislation and references committees with the same division of responsibilities as in operation from 1994 to 2006.[18]