2.
A
GENERAL HISTORY OF PARLIAMENT'S APPROPRIATIONS AND STAFFING
Appropriations
2.1 Debate about the appropriations for Parliament has largely centred
on whether or not they should be considered as part of the
ordinary annual services of the
Government.
2.2 In 1961, in evidence before the Joint Committee on Public Accounts, Professor K.H. Bailey, Solicitor-General, made an important
statement of principle
that the composition of the ordinary annual Appropriation Bills was
a matter of policy and not of law. 'This
is
a matter peculiarly for decision by each House of the Parliament and, to
the extent that the parliamentary practice is inconsistent with conclusions reached simply on the basis
of legal interpretation, the parliamentary practice
clearly prevails.[1] The Joint
Committee endorsed the principle
that what constituted the ordinary
annual services of the Government was a matter for determination of the two Houses
of Parliament.
2.3 On 12 May 1964, during the Senate debate
on a Ministerial Statement concerning appropriation measures, Senator Murphy expressed
the view that the Parliament is not an ordinary
annual service of the Government. He
continued that:
'one would be extremely
surprised to find that included
in what were apparently departments of the Commonwealth was the Parliament of the Commonwealth. I would like to
know whether the Leader of the Government in the Senate
and the Solicitor-General consider that the Parliament of the Commonwealth has become one of the departments of the
Government'.[2]
2.4 In
1965, the Committee
appointed by Government Senators on Appropriation
Bills
and the Ordinary
Annual Services of the Government, and chaired by Senator Cormack, recommended that the appropriations for the Parliament should not be included in the Appropriation Bill for the ordinary annual services of the Government.[3] The Committee pointed out that it had been suggested that it was inconsistent with the concept of the separation of powers and the supremacy of the Parliament for the Parliament to be treated
as an ordinary annual service
of the Government.
2.5
That Committee also referred to the position of the Legislative Council in Victoria where under schedule D of the Constitution Act of
Victoria an amount is specifically appropriated for 'the Clerk
and Expenses of the Legislative Council'.[4] It noted that the purpose
of the special appropriation is primarily to allow the Legislative
Council to function fully and independently of the Legislative Assembly and of the
Government of the day. (This arrangement has since been extended to provide
separate appropriations for the Executive Council
and the Legislative Assembly.)
2.6 In
the Senate debate on 10 September
1968 concerning the 1968-69
Budget, Senator Cormack
again referred to the inclusion of the appropriation for Parliament in the annual Appropriation Bill for the ordinary annual services of the Government. He repeated the view that Parliament was not an ordinary
annual service of the Government and noted that the Senate
had
only the 'lightest control' in dealing
with its own housekeeping and safeguarding its own integrity
as a Chamber in the bicameral system.[5] Senator Cormack 'regarded Parliament as a unique
institution and it was to be recognised that the internal
arrangements of the Parliament must be handled
as House and not Government matters.
Parliament, he argued,
is not like any ordinary
Government department; it is a separate
arm of government to which the Executive
is accountable; and it must be master of its own House'.[6]
2.7 In 1972, the Senate House
Committee reported on the provision of staff and other
facilities for members of Parliament and in relation
to appropriations for the Senate it
recommended:
'That the proper course is that the appropriation by Parliament for such staff and other facilities for the Senate, its members and office bearers,
should be administered by the President acting, where necessary, with the advice
of the Senate House Committee
and subject to any direction of the Senate;
and that insofar as it may be convenient for such staff and facilities to be provided
by Departments or Branches of the Executive
Government, such agencies should
act purely as service agencies on the authority of and in accordance with arrangements made with the President'.[7]
2.8
In
1974, Senate Estimates
Committee A considered the question of the Parliament's appropriations and in its Report it referred
again to the principle that the Parliament's vote should not be included
in the Appropriation Bill for the ordinary
annual services of the Government.[8]
2.9
The
Committee also suggested
that, in recognising the autonomy and independence of the parliamentary arm of government, the Parliament should have some pro
vision, 'by way of uncommitted funds, for unanticipated parliamentary expenses, which could be used without
the necessity for going back to the Treasury·for funds'.[9] The Chairman, Senator James McClelland, suggested that such a contingency fund was 'the only
solution consistent with the dignity
of Parliament'.[10] The Estimates Committee concluded its deliberations by recommending that the matter be considered further and be referred
to an appropriate Legislative and General Purpose
Standing Committee.
2.10 The funding
of Parliament was again commented
on in the Report of the Joint Committee on the Parliamentary Committee System.[11]
A number of witnesses suggested to the Committee
that the Parliament should
not be dependent upon the Government or upon Treasury
decisions for the funding of its operations.[12] The Committee made no recommendation on the question of financing parliamentary committee operations but pointed to the greater level of financial
independence of the committees
of the British and Canadian
Parliaments and to the inappropriateness of the present arrangements whereby parliamentary activity, including parliamentary committee activity can be curtailed by Government financial
restriction.
2.11
The Joint Committee considered that the Presiding
Officers alone should be responsible for determining the funds required
for parliamentary committee
operations and the manner of disbursing those funds.[13]
2.12 Following the suggestion in the Report of Estimates Committee
A of 1974, the Senate Standing
Committee on Constitutional and Legal Affairs
brought up a Report in which
it considered the means by which the constitutional right of the Senate to amend
proposed laws appropriating revenue or moneys for expenditure on matters other than
the ordinary annual services of the Government might be preserved.
The Committee reiterated the established principle
that the content
of Appropriation Bills
was a matter for the two Houses of Parliament and not the courts to decide, and recommended that the
Senate reaffirm the 1965 Compact,
i.e., 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.
2.13
The principle
has since been restated in the Report of Senate
Estimates Committee A, in May 1978, as follows:
'This Committee firmly holds the view ... that the appropriation for Parliament is not an ordinary annual service of the Government. Parliament is a separate arm of Government to which the executive is accountable, and it must be master of its own affairs.
The Committee suggests to the Senate that the time is long overdue
for the appropriation for Parliament to be excluded from the non-amendable Appropriation Bill for the ordinary
annual services of the Government, and included in a
Special Appropriation Bill which is subject to Senate
amendment'.[14]
This point was reiterated in the Estimates
Committee A Report of November
1978. It was referred
to yet again by Senate
Estimates Committee A in its October Report for 1979, as follows:
'Any Parliament which claims,
or aspires to, accountability
of an Executive
Government to the Parliament, must make such arrangements for its own resources and facilities as are necessary to achieve this constitutional relationship, in practice as well as in theory.
The
Committee has previously
stated (November 1978 Report) that the Senate
must assist
its President in his (and the Speaker's) efforts to achieve
greater control over the
expenditure and staffing of the Parliament and that the matter should
perhaps be referred
to the Senate House Committee'.[15]
Staffing
2.14 Staffing of the Commonwealth Parliament was first legislated for in the Public
Service Act 1902. That legislation required appointments, promotions and other matters relating to the departments of the Parliament to be determined on the nomination or recommendation of the Presiding Officer(s). The Senate made amendments
to
the Bill to put beyond doubt
the principle that all staff servicing the Parliament should be
under the control of the Parliament and not of the Public Service Board. During the second reading debate on the Bill, it was emphasised that, for the purposes of the legislation, control of officers
of the Parliament was to be exercised
by the Presiding Officers in place of the Public Service
Commissioner.
2.15 In the Report of the Royal Commission on Public Service Administration, published in 1920, Commissioner McLachlan recommended that:
'Officers of the Parliament should
be brought into the general
system of administration of the Public Service as regards classification,
fixing of salaries, determination of appeals other than in relation to punishments, the internal administration being left to the Heads of
Departments of Parliament'.[16]
This recommendation was not fully accepted,
for in the debate in the Senate
on the Public Service
Billl921, it was again emphasised that control of parliamentary staff by
any authority other than the Presiding Officer(s), for example, by a Public
Service Commissioner, would be a severe
encroachment upon the rights of the Parliament.
2.16 It is significant that the argument
in favour of the recommendation which considered that consultation with the Public Service Commissioner could be appropriate was concerned solely to protect
the rights of officers of the Parliament
with respect to conditions of service. In no way could, or should, that examination by the Public Ser
vice Commissioner of staffing conditions prevailing in the parliamentary departments be construed as either a detraction of the Presiding
Officers statutory authority
to act in all senses as the equivalent of the Public
Service Commissioner for the parliamentary staff, or an abrogation of the rights
of the Parliament to determine
its own affairs.
2.17 The current operations of the Public
Service Act 1922
are described below in
Chapter 4, however, before the present
practice evolved, a different
interpretation prevailed which was also inconsistent with the spirit of the legislation. Prior to 1973 there was a requirement, as a result
of a Cabinet determination,
that parliamentary staff matters should be considered by a committee
consisting of Presiding
Officers, the Prime Minister, the Treasurer and the Attorney-General.
2.18 In practice,
this meant that the advice
of the Public Service Board was sought
on any matter relating
to parliamentary staff,
be it classification or additional staff requirements. On receipt of the Board's
advice, letters were sent
by
the relevant Presiding Officer (or by them jointly) to the other members of the Committee
seeking their concurrence in the proposal
and, on agreement being reached,
the proposal was submitted
to the Executive Council, after signature by an appropriate Minister.
2.19 In 1973, the Prime Minister wrote to the Presiding Officers
advising them that the procedure,
whereby such consent was required
before the approval of the
Governor-General to a staffing
proposal was sought, had been reviewed and that, in future, staff changes in the Senate and the House of Representatives would need only the
consent of the President and the Speaker, after consultation with the Public Service Board. This is the current procedure.
2.20
In the Senate House Committee's
Report of May I 972, the Committee considered the matter of the provision of staff and other facilities for Members of Parliament, necessary for the
discharge of their Parliamentary duties. The Committee reported the following resolution to the Senate as a statement of principle:
'(1) That it is inconsistent with the constitutional relationship between Parliament and the Executive Government that the need or justification for the provision
of any staff or other facilities for members of Parliament, necessary
for the discharge
of their parliamentary duties, should be determined by any agency of the Executive Government.
(2) That it
is therefore not proper that Senators should have to make application to the Prime Minister,
Minister for the Interior or other Ministers
or their Departments, for the staff or other facilities
necessary to carry out the duties of their offices,
whether as Senators or as office bearers
of the Senate, such as the President,
Chairman of Committees, Leaders or Deputy Leaders
of Opposition parties or Whips'.[17]
2.21 In its Report of May 1978, Senate Estimates Committee A noted its concern at
the imposition by the Government of staff ceilings
on the Parliament. The Committee went on to note that since the Public Service Board 'does not have the knowledge and understanding of the staffing requirements necessary
for, and peculiar to, the Parliament', then the Parliament might do well to consider
making 'other arrangements'.
2.22 In November
1978, the issue of staff ceilings for the Senate was again the subject of comment by Senate
Estimates Committee A. The Committee
noted that new positions providing for Research Officers
for Estimates Committees
had been approved
by the Board, with the proviso that the positions be staffed from within the existing staff ceiling imposed by the Government. The Committee reported
that 'clearly, the Senate
must assist its President to overcome this most disturbing form of executive domination of the Parliament', and suggested that a reference
of Parliament's control
of its own staff could perhaps
be referred to the Senate
House Committee.
2.23 On 20 November
1979, Senator Jessop in a speech during the debate on Appropriation Bill (No. I) 1979-80, recounted the main suggestions made for Parliament to gain control over its own appropriations
and
-staffing and proposed
that a number of matters be brought before
the Senate for its consideration in the I 980 Autumn Sitting
including:
- the need for the Senate to set up a Committee charged
with the responsibility to con sider the annual estimates
for the Senate and for the President to then submit these to Government as the Senate's
requirements;
- whether or not these estimates should be submitted
to Government and then to the
Parliament in the form of a Parliamentary Appropriation Bill for consideration in the
sittings prior to the commencement of the financial
year to which they refer;
- the need for an advance to the President
of the Senate similar to that which operates as the advance to the Minister for Finance; and
- whether or not the Committee appointed to examine the estimates for the Senate should also be charged
with responsibility to advise the President of the
Senate on the creation and salary levels
of offices for the Department.
2.24 On 23 May 1980, the Senate
resolved that a Select
Committee be appointed to inquire into and
report upon Parliament's control
of its own appropriations and staffing, and related matters.
Notes and references
[1] J. R. Odgers,
Australian Senate
Practice, Fifth Edition, Canberra, 1976, p. 383
[2] Hansard, Senate, Vol25, 12May 1964, p.I075
[3] Parliamentary Paper No. 55 of 1967, p. 29
[4] ibid, p.29.
[5] Hansard, Senate, Vol538, 10 Sept 1968, pp. 482-3
[6] Odgers, op. cit., p. 386
[7] Parliamentary Paper No. 34 of 1972, Recommendation 2(3)
[8] Parliamentary Paper No. 194 of 1974. p. 6
[9] lbid,p.6
[10] Ibid, p. 6
[11] Parliamentary Paper No. 128 of 1976,
p. 100
[12] Ibid, p. 101
[13] lbid,p.l02
[14] Parliamentary Paper No. 19 of 1978, p. 9
[15] Parliamentary Paper No. 221 of 1979, p. 3
[16] Australian Government Administration, Report of the Royal Commission, Canberra 1977, p. 26
[17] Parliamentary Paper No. 34of1972, p. 1
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