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Wednesday, 24 September 2008
Page: 5527


Senator BOB BROWN (Leader of the Australian Greens) (4:24 PM) —I support both components of this motion: to recognise the valuable contribution of age pensioners to the Australian community and also to recognise the need for immediate financial relief for single age pensioners. On the first matter, I would join with every member of this parliament in recognising that age pensioners are making and have made a valuable contribution to our nation. In fact, we all know that we would not be one of the wealthiest, healthiest, happiest and most ‘easy to live in’ nations on the face of the planet if it were not for the lifetime of contribution that age pensioners have given to both their families and their communities in making Australia what I think all of us would agree is the most liveable place anywhere in the world. It is very important that that ongoing contribution of pensioners be recognised as this motion puts it.

Then we move to the need for immediate financial relief for single age pensioners—and, I would add to that, for all pensioners and carers in this country. They are in very difficult circumstances. We have had the plight of pensioners canvassed in the parliament over the last couple of weeks—and, indeed, from the Greens in the Senate for several years now in our campaign to have the pension increased. Let me refer to a single letter from a pensioner who would now be 80:

This may help you with the old pension bid—

that is, to improve the pensions—

Mr Brown. It is all very well to worry about the groceries, and we have to worry about groceries—

a little bit of humour here—

and which ones we don’t buy—’Oh, I can’t afford this and I can’t afford that either.’ It is approximately $150 a week more if I have to have soap powder, soap, bleach, etc, etc.

This is all in the citizen’s own handwriting. The letter continues:

Then there’s the vegetables and the fruit and, on top of that, the petrol and the tyres. No meat—I can’t afford that. No entertainment—that’s out altogether. Groceries approximately $150 a week. Newspapers, Telstra, car insurance, the power bills—

government has given some relief there in the last year—

operation on eyes ...

That item comes in at $2,680 twice, so that comes to more than $5,000, and this is somebody getting less than $15,000 a year. So, in one smack, there is a third of that person’s income gone. We have heard in here about people who are having 40, 50, 60 or, on one occasion, 80 per cent of their pension taken in rental. There are 100,000 people on single age pensions in this country living on $20 or less a day. Take out a $20 note in the morning and think about the cost of providing meals, shelter and accommodation—sorry, not shelter, because the rental is paid. Think about the cost of providing health care, transport, the newspaper—you would have to think about that—and so on. It is a very tough position indeed, and we ought to be acting to alleviate that while the government moves, if it so wills, to come to a final decision on increasing pensions by next year’s budget.

The work by the opposition and the crossbench in this parliament, in the last several weeks, is to provide immediate relief. And that is the matter that has been causing so much contention. On that matter, the coalition’s bill to give an increase of $30 to single age pensioners and veteran pensioners passed the Senate and went to the House of Representatives yesterday. There we saw the government not only refuse to debate the bill—to have a debate about a matter of quite urgent importance to this nation—but gag that debate on the basis that it was not constitutional.

What the government was saying is that if the Senate passes a bill and takes it to the House then it is up to the House to judge whether the behaviour of the Senate is constitutional or not. I submit that that is a very dangerous precedent and judgement for the House to be making. I submit that it is an outrageous abuse of the proper respect that parliamentary houses should have for each, under not only the Constitution but also the standing orders of both houses. It is effectively the government ignoring the Senate in much the same way as it is ignoring 1.2 million age pensioners in this country.

The worthy Clerk of the Senate, Harry Evans, wrote to Senator Minchin on 15 September pointing out the legitimacy of the coalition’s bill, and that has been canvassed by a number of speakers in this place. It was information available to the House. However, the Clerk of the House thought differently, and the government said, ‘This is an unconstitutional bill in the House; we won’t deal with it,’ and then gagged debate. I am now in receipt of a comment from the Clerk of the Senate with information about what led to that situation in the House yesterday. The Clerk says:

When the bill was received in the House of Representatives, the government did not allow the bill to be considered, on the basis of its alleged constitutional defectiveness.

A statement by the Speaker, referring to bills which increase payments from standing appropriations, claimed that “the practice has been that such bills originate in the House”, while a motion moved by the government stated that such a bill “should be introduced in the House of Representatives” and that “it is not in accordance with the constitutional provisions ..... as they have been applied in the House for such a measure to have originated in the Senate”.

Mr Evans says:

Unfortunately, debate on this motion was “gagged”, so there was no explanation or analysis of it. The House was not allowed to debate a matter supposedly affecting its own powers.

What an extraordinary way for a government of this nation to behave in the house of government—to not allow the powers of the House, let alone the right of the Senate to pass its legislation, to even be debated on the floor of the parliament. And it is a Labor government, at that! The Clerk goes on to cite a number of examples where such legislation has come from the Senate before, stating:

 ... there is no shortage of examples of government bills exactly the same in principle as the Urgent Relief for Single Age Pensioners Bill which were initiated in the Senate.

Speaking of the House of Representatives, he went on to say:

Multiplying past examples demonstrates that either government advisers were negligent about the bills which could be initiated in the Senate according to the doctrine now expounded, or the doctrine was raised to cover the situation in relation to the current bill.

That is, the pensions bill.

I suggest that the latter is the case.

I seek leave to incorporate the whole of this letter from the Clerk into the Hansard.

Leave granted.

The document read as follows—

24 September 2008

Senator Bob Brown

Leader of the Australian Greens

The Senate

Parliament House

CANBERRA  ACT  2600

Dear Senator Brown

URGENT RELIEF FOR SINGLE AGE PENSIONERS BILL

This note is further to the advice already provided on this bill.

When the bill was received in the House of Representatives, the government did not allow the bill to be considered, on the basis of its alleged constitutional defectiveness.

A statement by the Speaker, referring to bills which increase payments from standing appropriations, claimed that “the practice has been that such bills originate in the House”, while a motion moved by the government stated that such a bill “should be introduced in the House of Representatives” and that “it is not in accordance with the constitutional provisions ….. as they have been applied in the House for such a measure to have originated in the Senate”.

Unfortunately, debate on this motion was “gagged”, so there was no explanation or analysis of it.  The House was not allowed to debate a matter supposedly affecting its own powers.

It appears that these statements draw a distinction between bills which result in expenditure from a standing appropriation and bills which otherwise result in expenditure from appropriations made elsewhere.

My note of 15 September 2008 referred to bills “which involve increased expenditure from appropriations which have already been made, or will be made in the future”, and which “are commonly introduced in the Senate”.  Bills involving expenditure from standing appropriations fall into that category, but so do other bills involving increased expenditure.  There is no difference in principle between those types of bills in this category, and no basis for distinguishing bills increasing expenditure from standing appropriations from bills involving expenditure from other appropriations.  If a bill causing expenditure from standing appropriations is to be treated as a bill appropriating money within the meaning of section 53 of the Constitution, bills involving expenditure from other appropriations would have to be treated in the same way.  Once section 53 is regarded as rubbery and is extended beyond bills which actually appropriate money, there is no end to how far it will extend.

For example, late last year there was a bill passed which had been initiated in the Senate, the Aviation Legislation Amendment (2007 Measures No. 1) Bill 2007, and which, according to the explanatory memorandum, involved increased expenditure of $3 million per year.  This was not from a standing appropriation, but from money regularly appropriated for the Civil Aviation Safety Authority, but on the rubbery extension of section 53, this bill, and many others, would be caught.

Leaving that issue aside, there is no shortage of examples of government bills exactly the same in principle as the Urgent Relief for Single Age Pensioners Bill which were initiated in the Senate. 

My note of 15 September referred to the National Health Amendment (Pharmaceutical Benefits) Bill 2007.  An attempt has been made to distinguish this bill, seemingly on the basis that it might not necessarily have led to increased expenditure. The fact is that that bill created an entitlement to pharmaceutical benefits which did not exist before, in respect of prescriptions issued by optometrists, and authorised expenditure to fund that entitlement from the standing appropriation in the principal Act.  It falls squarely within the category now said to be impermissible for initiation in the Senate.

Further examples may be cited.  The Health and Ageing Legislation Amendment Bill 2003 also created new entitlements payable from standing appropriations under the principal legislation, in respect of pharmacists operating from premises previously not approved, and medical practitioners previously not recognised as specialists.  Both entitlements increased expenditure out of the standing appropriations.

The Social Security Legislation Amendment (Concession Cards) Bill 2000 was not only initiated in the Senate but amended in the Senate to extend entitlements under the legislation, in relation to foster care children issued with their own health care card.  Again, the new entitlement was funded from the standing appropriation.

Multiplying past examples demonstrates that either government advisers were negligent about the bills which could be initiated in the Senate according to the doctrine now expounded, or the doctrine was raised to cover the situation in relation to the current bill.  I suggest that the latter is the case.

A great many red herrings have been dragged across the path by the material presented in the House of Representatives.  One relates to a proposal by the Senate Procedure Committee in 1996 that section 53 be reinterpreted so as to classify the kinds of bills under discussion here as appropriation bills able to be initiated only in the House of Representatives.  That proposal was contingent on clauses being included in such bills explicitly acknowledging that they appropriate money.  This proposal was not accepted at the time, and indeed was not considered.  It cannot now be raised to support an ad hoc unilateral reinterpretation of section 53 while ignoring an essential part of the proposal.

Reference to the ability of the Houses to agree on an interpretation of section 53 raises a final point. Contrary to suggestions which have been made, it is well established, by the words of the High Court itself, that section 53 is non-judiciable and cannot be the subject of interpretation and adjudication by the Court.  It is for the Houses themselves to interpret and apply the section.  It is unfortunate that the House of Representatives is not given the freedom to consider any such agreement.

Yours sincerely

(Harry Evans)


Senator BOB BROWN —I thank the Senate. I believe that this is an extremely serious matter which should have been debated in the House and which, no doubt, will lead to a great deal of constitutional debate outside the parliament, because it has been prohibited from debate in the House by the Rudd Labor government. It will be left to be debated outside the parliament for a long time to come, but it is a quite worrying precedent. If this is a backdoor move by Prime Minister Rudd and/or his government to try to trammel the Senate, it is bound for a lot more trouble than we have seen so far. (Time expired)