Parliamentary Procedure and Responsible Government - Responsible Government and the Australian Constitution book forum
Leslie Gonye provides the second post in our book forum on Benjamin B Saunders’ Responsible Government and the Australian Constitution. To see all posts, please click here.
Leslie Gonye
27.06.2024
Introduction
I commend Ben Saunders on his book Responsible Government and the Australian Constitution. He has produced an accessible work that diligently examines and threads together a vast volume of material to argue the importance of historic context in understanding the Constitution regarding responsible government. This is key, as the provisions in the Constitution that concern the executive are relatively few and as responsible government is fundamentally political, there is plenty of scope for principles to evolve for governments to operate for the sovereign people of Australia to govern themselves in the manner they deem best (Saunders, p 207).
However, as a former parliamentary officer of the Legislative Assembly of New South Wales, the author’s words in the introduction stand out (Saunders, p 2):
In essence, therefore, responsible government is the principle that the Government is a creature of, and accountable to, Parliament, which is supposed to play a key role in scrutinising the actions of the executive and holding it to account.
Responsible Government and the Importance of Standing Orders and Parliamentary Procedure
Just as Saunders argues that the Commonwealth of Australia Constitution Act provides a flexible framework within which to shape the concept of responsible government, so too does section 50 of the Constitution in relation to parliamentary procedure. Similarly, section 15 of the Constitution Act 1902 (NSW) gives the Legislative Council and the Legislative Assembly the power to ‘prepare’ rules and orders to ‘regulate’ the conduct and proceedings of the House.
Philip Norton, the Director of the Centre for Legislative Studies and a Member of the House of Lords, has argued that 'procedure matters'. In his article 'Playing by the Rules: The Constraining Hand of Parliamentary Procedure' he shows that parliamentary rules have the capacity to be a 'constraining hand on government'.
It follows that the Standing Rules and Orders have an important place within the doctrine of responsible government. In parallel with Saunders’ conclusion above, the standing orders provide Parliaments with ample scope to make the exercise of executive power accountable to Parliament. Nor are standing orders and practice fixed. They evolve over time to redress any deficiencies in practice or to facilitate new procedure.
This post will focus on the NSW Legislative Assembly of 1991-1995 (the 50th Parliament) as the political circumstances provided the opportunity for broader accountability reforms. Among them amendments to the standing orders to curb, if not reverse, the tide of executive dominance of Parliament to demonstrate how 'procedure matters' –arguably, with ongoing positive impact.
50th Parliament – 'Charter of Reform'
Since 1988, the last occasion a Government had a majority in the Legislative Council, the Council has increasingly asserted itself against the Executive by adopting new practice and standing orders, including those tried and tested in other parliamentary jurisdictions.
Likewise, the Legislative Assembly has adopted accountability measures when circumstance, public expectation and opportunity have arisen. One such opportunity came along following the 1991 general election when the Greiner Government retained power for a second term but without an absolute majority. It explored various options to sure up its position, including negotiating with the 'unaligned' Independents (John Hatton, Clover Moore and Peter Macdonald) for support.
On the other hand, John Hatton with 20 years’ experience as an Independent member in a House under the domination of Liberal-Country, Labor and Liberal-National governments saw an opportunity! He was especially frustrated with proceedings in the House that diminished accountability within the doctrine of responsible government. This frustration was at a time when there was a prevailing thesis of the decline of parliament, in large part, due to the dominance of the executive.
In agreeing to provide ‘stable Government’ by voting with the Government on appropriation, supply and no confidence motions (not involving corruption or gross maladministration), agreement was reached on a Memorandum of Understanding for a 'Charter of Reform' (the Charter).
The Memorandum of Understanding included the aim 'to enhance Parliamentary democracy and open and accountable Government in New South Wales' and redress ‘the balance of power between the Parliament and the Executive Government' which was considered to have 'shifted unduly in favour of the Executive Government' (p 1).
Their concerns were to be addressed in the Charter under three principles:
protection of the independence of the Parliament;
reform of the procedures of the Parliament; and
reform of the legislative process.
Just as Ben Saunders has used the official records of Federation conventions to gain insight into the principles of responsible government the framers of the Constitution had in mind, the Charter provides the Independents’ outlook on strengthening government accountability measures in the Legislative Assembly.
Protection of the Independence of the Parliament
The Charter saw the independence of the Parliament as fundamental to ensuring ‘the accountability of Executive Government to the Parliament’. The key elements implemented below, including fixed four year terms, constitutional recognition of the independence of the Presiding Officers and the power to veto, while not directly through the standing orders, augmented responsible government.
Fixed Four Year Terms
On the very day the Memorandum of Understanding was signed the Government introduced the Constitution (Fixed Terms Parliament) Amendment Bill and the Constitution (Fixed Terms Parliament) Special Provisions Bill, implementing the Charter's first element of reform. The legislation fixed the date of the next and subsequent State elections as the fourth Saturday in March every fourth year, provided for a 'baton change' as a test for an alternative Government should a vote of no confidence be carried, and entrenched the changes in the Constitution Act.
The significance of the bills, as stated by The Hon Tim Moore, the Leader of the House (and later a judge of the NSW Land and Environment Court), was:
removing the capacity for the Government of the day 'to manipulate the timing of an election to suit its own political purposes'; and,
a shift along a ‘continuum’ 'from the present dominance of the Executive' to greater accountability of the Executive to the Parliament.
Constitutional Recognition of the Independence of the Presiding Officers and the Manner of the Election of the Speaker
As the office of Speaker is in the fiat of the Government it is often seen as a consolation prize for those who missed out on the ministry. There has also been criticism of partiality shown by some Speakers when presiding over proceedings in the House. As such, agreement to the Charter saw the Constitution amended to recognise the Presiding Officers, being the Speaker and the President of the Legislative Council, 'as independent and impartial representatives' of the Parliament to the Executive. Section 31B was also inserted to provide the manner of election for the Speaker to be by secret ballot.
The constitutional recognition of the Speaker as independent and impartial and the method of election was significant as it recognises the position as being above politics, bolstering both the office and the parliament in relation to the executive.
Power to Veto and Parliamentary Counsel Services
The Charter also required that parliamentary oversight committees (which oversee statutory bodies such as the Independent Commission Against Corruption, Audit Office and Ombudsman) be given the power to consider the Minister's nominee for appointment to lead these independent statutory bodies, with the power to veto the proposed appointment.
It was also at this time that all backbench members were given access to the resources of the Office of the Parliamentary Counsel, the office that drafts Government legislation. Together with subsequent procedural changes in the routine of business this resulted in the proliferation of private members’ bills. This service enabled non-government members to showcase their issues and policy proposals. It also forced the Executive to consider its own response to such bills and, on occasion, subsequently introduce its own legislation.
Reform of the Procedures of the Parliament (the Legislative Assembly)
The reform of procedures of the Legislative Assembly stemmed from concerns that 'the Legislature and the procedures of the Legislative Assembly provide too few opportunities for real participation by Members in the shaping and enactment of legislation' and 'that much more can be done to enhance the ability of Members to make the Executive Government …. more accountable to the Legislature' (Charter of Reform, p 4). The priority elements identified were:
Estimates Committees;
Question Time;
Questions on Notice; and
Broader opportunities for Private Members.
Estimates Committees
Debate on the annual Appropriation Legislation in the Legislative Assembly had become a stage for set piece speeches - not only by the Treasurer but from all Members. At the same time, opportunities to consider and closely examine the detail of the budget estimates for each ministry had become increasingly scant.
To address this, a new standing order was made to provide during the second reading debate on the annual Appropriation Bill a Minister may move a motion to appoint Estimates Committees for the purpose of examining and reporting on the proposed expenditure for each Minister.
The Legislative Assembly appointed Estimates Committees in each year of the 50th Parliament. Estimates Committees of the Assembly met with jointly with its counterpart Legislative Council Estimates Committee and allocated 3 hours to question each Minister on their portfolios.
The creation of Estimates Committees enhanced the Parliament’s ability to scrutinise the Executive beyond the second reading debate on the Budget bills. Members at Estimates Committee hearings could directly quiz Ministers, together with senior departmental officers, and seek explanations of expenditure in the past year and details of proposed expenditure for the coming year.
While remaining in the standing orders of the Legislative Assembly, Estimates Committees of the Assembly have not been appointed since as both Houses could not agree on the terms that joint estimates committees would operate. This has not been to the detriment of responsible government, as the Estimates Committees of the Legislative Council have continued to vigorously interrogate the Executive.
Question Time
Question Time is the most visible means of holding the Executive accountable to the House. For some time Question Time was considered not to be working effectively for a number of reasons – it was limited to 45 minutes; Ministers' answers were not time capped; questions could be answered in any manner so long as the answer was largely relevant to the subject of the question; and Ministers were prone to giving longer answers to 'Dorothy Dix' questions from Government backbenchers and short shrift to questions from the Opposition. Significant time was also regularly lost to the practice of moving for the suspension standing orders. These practices during Question Time decreased the already limited opportunities to hold the Government to account and was seen as ripe for reform.
The Charter saw substantive amendments made to the standing orders, seeking to nullify time wasting and maximise the time available for questions, thereby strengthening the House’s ability to hold the Government to account. While Question Time remained at 45 minutes it had to continue until the answering (not the asking) of a minimum of 10 questions. To prevent the loss of further time, the moving of suspension motions during Questions was prohibited. To prevent the Government from hijacking Question Time, as had occasionally been the case, the convention that the Leader of the Opposition be given the call to ask the first question was also written into the standing orders.
Questions on Notice
As there was no compulsion for Ministers to answer written questions on notice, a particular source of frustration for the Opposition was that the sizeable portion of these questions went 'unanswered' or answered in such an untimely manner that rendered the information useless.
Accordingly, the standing orders were amended to mandate that answers to questions on notice to be submitted within 35 calendar days after the question was first published. Previously unlimited, in return a limit was placed on the number of questions that members could lodge each sitting day: four per sitting day for the Leader of the Opposition and three per sitting day for other members.
In addition, if an answer is not submitted by the due day, on the next sitting day the Speaker is to call on the relevant Minister to explain to the House the reason for non-compliance. The embarrassment of being called to account in the House is a big motivator for Ministers to ensure answers are lodged in time.
Broader Opportunities for Private Members
John Hatton’s considerable experience as a private member made him acutely aware of the lack of opportunities for all backbench members- not just for Independents but equally for backbenchers of political parties. To remedy this, the Charter proposed a number of procedural pathways to enhance their participation:
Debates on motions for urgent consideration and discussion of matters of public importance-
These items are used to raise and debate alternate policies on issues, more so by non-government members, to hold the Executive to account.
Rearranging General Business and Private Members' Legislation-
By moving General Business from Thursday afternoons to Thursday mornings significantly more time was made available for private members' business, especially the passage of non-government bills; and
Debating the reports of Parliamentary Committees-
This drew greater attention to the reports of parliamentary committees, many of which scrutinised Government policy, and, coupled with the later introduction of Government responses to committee reports, provided members with an opportunity to persuade the Executive whether to or not adopt committee recommendations.
Overhaul of Standing Orders
One of the longer-term expectations under the ‘Reform of the Procedures’ was that the procedural changes made to enhance government accountability would be trialled for inclusion in the 'permanent procedures of the Parliament'. The final reform of parliamentary procedure during the 50th Parliament was therefore a 'complete overhaul of the Standing Orders of the Legislative Assembly'. The Speaker and the Clerks-at-the-Table undertook the task, converting the impenetrable language of the standing orders into 'plain' English for clearer understanding and use by members (one former member has described the language of the standing orders and procedure as 'Clerks’ mumbo jumbo'!)
Reform of the Legislative Process
Opposition and Independent members had long complained about legislation being 'rammed' through the House by the Executive without adequate scrutiny, debate or the consequential consideration of any proposed amendments. In this regard three measures made it into the standing orders.
Suspension of Standing Orders
Governments have regularly moved to suspend standing orders (to bypass their requirements), used closure motions (the 'gag') and the allocation of time for debate (also known as the 'guillotine') to maintain control of the House, manage the legislative programme and to curtail debate - procedures that could be regarded as the antithesis of the principles of responsible government! While the gag and guillotine provisions remained untouched, there was an amendment to the standing orders in relation to the suspension of standing orders. The amendment allowed for any Member to move a suspension motion but with the constraint, including for Ministers, of requiring the leave (that is unanimous consent) of the House.
This was a fundamental redress in the balance of power between the House and the Executive. It placed a strong restraint on the Government by preventing abuse of the suspension procedure to 'ride roughshod' over the House and its procedures, as the objection of any one individual member is enough to deny leave. It therefore required the Executive to consult with all members and make the case for the necessity of each suspension motion. This provision was short lived as with the return of a majority Government in the following Parliament the standing order was unwound to restore the Government’s ability to move for the suspension of standing orders at any time without leave.
Legislation Committees
Legislation Committees were provided for in a new standing order. After the second reading, that is the adoption of the principle of a bill, the bill may be referred to a Legislation Committee for inquiry. The remit of a Legislation Committee is to consider amendments to the bill and to report back within six months for the House to then consider those amendments. Crucially, upon request from the committee, the Minister having portfolio carriage of the bill is to provide the committee 'drafting and support services'.
This potential procedural stage enhances legislative scrutiny through committee inquiry into the legislative intentions of the Executive. Through consulting key stakeholders, receiving submissions and taking evidence a legislation committee can recommend amendments on how better to affect the legislative intentions.
During the 50th Parliament 12 bills plus their cognate bills were referred to legislation committees producing some worthwhile reports and constructive amendments (Griffith & Clune p 547).
Unproclaimed Legislation
A particular annoyance for John Hatton were Acts or parts of Acts that had commencement provisions of 'on a date to be proclaimed', rather than upon on Assent or specified date. Such a provision may be for valid reasons, such as to ensure the administrative mechanisms are in place to support the operations of the Act (or at times for political purposes). Undue delay is also contrary to the wishes of the Parliament having passed the legislation. Hatton was also concerned about the lack of transparency when navigating through the maze of legislation to identifying those provisions yet to commence.
To remedy this a sessional order (later incorporated in the standing orders) was made, requiring the Executive to forward to the Speaker a list of legislation or parts of legislation remaining unproclaimed 90 days after its assent. That list is tabled on the second sitting day of a new session and then updated for tabling each subsequent 15th sitting day.
Accountability Measures with the Revival of Certain Procedures
The absence of a Government majority in the Legislative Assembly of the 50th Parliament not only presented opportunities for reforms in procedure but for the revival in the use of other standing orders that have always been available to hold the Government to account.
Moving amendments to bills in the Legislative Assembly has at times fallen out of favour, but during the 50th Parliament not only was there an increase in the number of amendments proposed to Government legislation by the Independents, the Opposition and even the Government, but more than 75% were carried. This shows that Government, Opposition and Independent members all made effective use of the standing orders in the Assembly to shape Government legislation.
The Opposition also came across a standing order for the Assembly to order Ministers to table papers. It was used for the first time since the 1920s to call for papers to scrutinise Executive decisions in relation to: the tendering process for certain Water Board projects; to the dismissal of the NSW Agent General in London; the transfer of the Royal Agricultural Society to Homebush Bay; and lead pollution in the Hunter Valley. The return to order power has since been used prolifically by the Legislative Council.
Since the 50th Parliament
Since the 50th Parliament it has been open for any majority Government, filtered through the Standing Orders and Procedure Committee, to change the standing orders of the Legislative Assembly at any time. However, the standing orders enhanced by the procedural reforms of the 50th Parliament continue to provide both a 'constraining hand' on government, while serving as guard rails for responsible government. Indeed, since their implementation over thirty years ago, only a few of the reforms have been reversed. Most continue and have become an unquestioned part of routine proceedings, with some even being strengthened over time. Overall, the principle is that parliamentary avenues remain available to members to raise issues in the House and to hold the Executive to account.
The Charter was conscious of balancing the right of the Government to govern with enhancing responsible government. It expressed the hope that 'the changes will assist in evolving conventions which will ensure that consultation on major issues becomes the practice for future Governments' (Charter p 7). The reforms have also provided a procedural compass for cultural change in 'the operations of and attitudes in the Assembly' (Charter p 7). In this regard a cultural shift is discernible and reinforced by the expectations of each wave of new members.
With the benefit of 30 years, this new cultural norm is evidenced by Governments being increasingly mindful of not abusing procedure. For instance, Government motions to suspend standing orders are now generally flagged with members, rather than used to ambush (as evidenced by suspension motions mostly being agreed to without division).
The Charter also referenced the use of the 'gag' and 'guillotine', euphemistically known in the standing orders as ‘the closure’ and 'allocation of time for discussion'. These procedures technically allow a majority Government to rush its legislation through, limiting the opportunity for debate and scrutiny. They were left untouched as it was considered too hard to prescribe both safeguards against abuse and cases of necessity for use of the procedures.
Both these procedures have fallen out of favour as Governments last used the ‘guillotine’ in November 2003 and the ‘gag’ since March 2014. This is a significant marker of responsible government, given that when John Hatton was first elected in 1973 the then Leader of the House was given the nickname 'Stainless Steel' by the Opposition for a proclivity to apply the 'guillotine' on the consideration of Government legislation.
Conclusion
This post has focused on the set of circumstances of the 50th Parliament that resulted in the Charter and consequential reforms to the parliamentary practice and procedure of the Legislative Assembly. Those procedural developments, like the Charter itself, are framed in their significance for responsible government – the principal theme of Saunders’ book.
The themes of Saunders’ book that resonate with me are: accountability of Executive Government to the Parliament; the countervailing views of legal and political constitutionalism; and the scope for the features of responsible government to evolve.
As Saunders points out, there is no definition of responsible government in the Australian Constitution; rather, the concept has the capacity to evolve. Similarly, the New South Wales Constitution provides one basis for both Houses with the power and flexibility to make their own rules and to evolve ‘as there may be occasion’. It is through the standing orders that the mechanisms to constrain the Executive are spelt out. It was therefore the prevailing political reality in the Legislative Assembly which created the opportunity for the House to amend the standing orders to establish the new procedures that have enhanced responsible government, the main theme of the book.
Leslie Gonye is a former Deputy Clerk of the Legislative Assembly. From 1987 he served more than 33 years as a Clerk-at-the-Table in the positions of Second Clerk-Assistant, Clerk-Assistant and Deputy Clerk. He was also concurrently Serjeant-at-Arms from 2011 to 2020.
Suggested citation: Leslie Gonye, ‘Parliamentary Procedure and Responsible Government - Responsible Government and the Australian Constitution book forum’ (27 June 2024) <https://www.auspublaw.org/blog/2024/6/parliamentary-procedure-and-responsible-government-responsible-government-and-the-australian-constitution-book-forum>