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Wednesday, 17 November 2010
Page: 1491

Senator BRANDIS (4:00 PM) —In rising, may I first associate myself with Senator Abetz’s remarks and remind honourable senators—

Senator Marshall interjecting—

The DEPUTY PRESIDENT —Order! Senator Marshall, can I remind you this is a serious discussion.

Senator Marshall interjecting—

The DEPUTY PRESIDENT —Order! Senator Marshall, this is a serious discussion that has been heard in silence. I would ask that you listen to Senator Brandis in silence.

Senator BRANDIS —The debate that the opposition has initiated, which involves criticism of the statement made by President Hogg this morning in explaining his ruling of yesterday afternoon but is not a reflection on the ruling, is a course of action on which we embark with great care and hesitation. It is very unusual. This is a very unusual parliamentary debate. The fact that the opposition has brought this debate on should of itself convey to others, including President Hogg, the seriousness with which we regard the matter.

In relation to the contributions by Senator Ludwig, let me simply say one thing. If Senator Ludwig is right, then by adopting sessional order 22 the Senate made no change to its practice. If Senator Ludwig is right, then sessional order 22 means nothing, and that plainly is not the case. When the Senate adopted sessional order 22, it changed the rule. It changed the rule from a rule that required an answer to be relevant to a rule that required an answer to be directly relevant. If Senator Ludwig is right, the addition by the Senate after due deliberation of the adjective ‘directly’ means nothing.

I do not think any senator who participated in that discussion thought that when we adopted sessional order 22 we were not intending to change the practice; we were not intending to refine, to make more specific, the meaning of the term ‘relevance’. The precedents to which Senator Ludwig has referred, which were directed to the old standing order which did not require direct relevance, are to that extent themselves not relevant to the new standing order because the test is now different.

There are three respects in which I want to make some observations about the approach that has been taken by President Hogg. Like Senator Abetz, I want to begin with the second paragraph of his statement where he says:

Regardless of whether the requirement is for relevance or direct relevance, I cannot direct a minister how to answer a question. Provided that an answer is directly addressing the subject matter of a question, it is not within the power of the chair to require a minister to provide a particular answer.

With all due respect to President Hogg, both sentences are wrong. I will explain why. Let me deal first with the assertion in the statement that all that a minister must do to make himself directly relevant is to address the subject matter of the question. That is plainly wrong, because that is not what sessional order 22 says. What sessional order 22 says is, ‘Answers shall be directly relevant to each question.’ It is a point Senator Abetz made—not to the subject matter of each question but to the question itself. So, for example, when Senator Birmingham’s question yesterday, which precipitated this debate, asked for a quantity, that was the question—what is the quantity? It is not responsive to that question, with respect, merely to address the subject matter in which the particular question arises. If that were the case, then any minister could address any aspect of public policy within the context of which a particular question arose. That is not a relevant answer.

I think the error that has crept into President Hogg’s reasoning arises from the fact that President Hogg has sought to apply to question time the test of relevance applied by the standing orders for parliamentary debate. That is where the error lies. It lies in the misapplication of standing order 194(1) which provides:

A senator shall not digress from the subject matter of any question under discussion ...

That is the definition of relevance for the purpose of parliamentary debate. But questions asked in question time are not ‘questions under discussion’; they are not questions before the chair. They are questions to ministers and they are governed by a different provision of the standing orders, chapter 11. Chapter 11 provides particular rules for the asking and answering of questions which make it clear that question time is not part of parliamentary debate and questions asked in question time are not questions before the chair, which is the matter with which standing order 194(1) deals.

That is clear from three things. First of all, it is clear from the title of chapter 11 of the standing orders, which is entitled ‘Questions seeking information’. It is not an aspect of parliamentary debate. Secondly, it is clear from the express terms of standing order 73, which is entitled ‘Rules for questions’, which sets out a number of restrictions and limitations on what may be included in questions which are not limitations on what may be said in the course of parliamentary debate. Thirdly, it is even clearer from the provisions of standing order 73(4) which provides:

In answering a question, a senator shall not debate it.

So, when the opposition asks questions of a minister, we are not engaged in parliamentary debate and, when the minister answers the question, he is specifically prohibited by the standing orders from debating the question. Those are the words of the standing orders. That is what they mean.

I am afraid to say, with all due respect, that the error into which President Hogg, or perhaps those who advised him, has fallen is to apply the relevance test for parliamentary debate in standing order 194(1) and assume that it is the same for question time, when it is as clear as can be from standing order 73, and in particular from standing order 73(4), that there is a different test.

The second error that President Hogg makes in his statement is his assertion—which has been the foundation of most of his rulings on these relevance points of order the opposition has been taking—‘I cannot direct a minister how to answer a question.’ That is true. The presiding officer or the President cannot direct a minister how to answer a question, but it does not follow from that that the President may not require a minister to be relevant, indeed directly relevant, to the question. For the President to require the minister to be directly relevant to the question does not mean that he is telling the minister how to answer the question. He is merely saying that part, or all, of what the minister may be saying is not directly relevant to the question. He is not suggesting the alternative words; he is merely saying that, however the question may be able to be addressed responsively, what the minister is saying now is not directly relevant to the question.

The standing orders provide some guidance on the duties of the President. The principal standing order which sets out the duties of the President in this regard is standing order 184. Standing order 184(1) says:

Order shall be maintained in the Senate by the President.

That is the President’s principal function. He has ceremonial functions and, as you know, he has administrative functions. But his fundamental constitutional function is the function conferred on him by standing order 184 of the standing orders: to maintain order. As you know, Mr Deputy President Ferguson, for a senator to defy the standing or sessional orders of the Senate is disorderly. So the President, in order to fulfil his constitutional function under standing order 184, is obliged to prevent disorderly conduct and that includes any conduct by any senator, including a minister in question time, in disobedience to a standing or sessional order. For the purposes of today’s debate, of course this includes disobedience to the requirement that the minister be directly relevant to the question.

It is as clear as can be that President Hogg considers himself entitled and obliged to rule on relevance issues. Many times this year, since sessional order 22 has been in place, President Hogg has ruled that a minister’s answer is relevant. If a President may rule that the minister’s answer is relevant, then equally, he may rule that the minister’s answer is irrelevant; and, if he so rules, that is a ruling that the minister is out of order, because by so ruling he declares that the minister is being disobedient to sessional order 22. It is as simple as that: if you can rule that it is relevant, you can rule that it is irrelevant, and a ruling that an answer is irrelevant or not directly relevant is not an instruction to the minister as to how to answer the question; it is an insistence that the minister desist from disobedience to sessional order 22. It is as simple as that.

In fact, early in the life of sessional order 22, President Hogg indicated a willingness to direct a minister to be responsive to a question. On six occasions this year—on 2 February, 4 February, 24 February, 17 March, 18 March and 13 May—President Hogg instructed a minister to answer the question or to be relevant to the question. So the statement made in the second paragraph of President Hogg’s statement this morning that he cannot direct a minister to answer the question is in fact at variance with his own previous practice, his own previous interpretation of the same sessional order.

However, since 13 May this year, on the 47 occasions, including today, when either an opposition senator or a crossbench senator raised a relevance point of order, President Hogg departed from his previous practice by merely saying that the minister has so many minutes or seconds in which to conclude his answer and stating, ‘I cannot direct the minister how to answer the question.’ He can do so, he has done so and he ought to do so if he is of the opinion—and it is an opinion that he must form—that the minister is being disobedient to the sessional order.

Sessional order 22 is, in fact, in exactly the same language as standing order 104 of the House of Representatives, requiring answers by ministers in that place to be directly relevant to the question. On four occasions in the House of Representatives, Speaker Jenkins has required ministers to be directly relevant to the question. On 29 September, Speaker Jenkins considered that a question very similar to the question asked by Senator Birmingham yesterday about the cost of expanding the Curtin detention centre—a question that asked for an amount of money, a quantity—was not being answered conformably to the standing orders by Minister Bowen when Minister Bowen merely elaborated upon the government’s border protection policies, and the Speaker insisted that Minister Bowen answer the question.

On 21 October, when a question was asked of Minister Grey on advertising campaigns concerning the Murray-Darling Basin plan, Speaker Jenkins said that an answer which dealt with the government’s Murray-Darling Basin plan but not with the advertising campaign about which the question inquired was not directly relevant and, therefore, disobedient to the standing orders.

On 21 October, Speaker Jenkins ruled that the answer by the Prime Minister to a question about the East Timor detention centre, in which the Prime Minister merely criticised the opposition’s border protection policy, was not directly relevant to that question. He ruled that to attack the opposition was not directly relevant to a question inquiring about a particular failure in the government’s own policies.

On 28 October, most recently, when the Prime Minister was asked why she imposed pressure on the former Prime Minister to abandon the emissions trading scheme, as had been claimed in the press and as we know was the case, once again the Speaker ruled that for the Prime Minister to attack and ridicule the opposition was disobedient to standing order 104 of the House of Representatives because it did not directly address the question asked.

So, on each of those six occasions in the early part of this year on which President Hogg ruled and on the four occasions since the new House of Representatives standing orders came into operation on which Speaker Jenkins ruled, there was demonstrated by both of those Presiding Officers a view that they have a capacity to insist on applying the standing order about direct relevance, that the minister desist from including irrelevant material in their answer and answer the question. Ruling that a minister answer the question is not to tell the minister how to answer the question; it is merely fulfilling the President’s function under standing order 184 to require the minister to behave in an orderly fashion—for this purpose, by not being in defiance of sessional order 22.

Lastly, in the time available to me, nor is it sufficient for the President to say that the minister still has so many seconds to go. It reaches the absurd point where it would never be possible, no matter how irrelevant the minister was being. If the minister were reciting nursery rhymes, on that rule the minister could not be regarded as not being directly relevant if the minister had a second or two to go in which, possibly, they will come to the question. That offends logic. It offends common sense. It is not a rule that has been adopted by Speaker Jenkins, nor is it a rule that was adopted by President Hogg before 13 May—after which date he changed his practice. The opposition, with respect and reluctance, urges President Hogg to fulfil his duties under standing order 184 and enforce sessional order 22 according to its terms.