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Finance and Public Administration Legislation Committee
Department of the Senate

Department of the Senate


I welcome the President of the Senate, Senator the Hon. John Hogg; the Clerk of the Senate, Dr Laing; and officers of the Department of the Senate. I thank the department for again providing the committee with updated information on Senate committee activities. Senator Hogg, do you wish to make an opening statement?

The President : No.

CHAIR: Dr Laing, do you wish to make an opening statement?

Dr Laing : Thank you, I would like to make a brief opening statement. I would simply like to draw the committee's attention to the department's annual report, which was presented out of sitting, and to the Clerk's review at the front, which gives a summary of the department's work over the year.

But the principal reason for drawing the committee's attention to the report is to indicate that the department has been able to turn around its budget position from a deficit for the past four years to a balanced budget. We have achieved that through a series of measures, including by very tight management of our staffing numbers in each of the various offices, by streamlining of services and by—in a very small number of cases—not filling positions that became vacant.

The other thing I would like to draw the committee's attention to that I am sure you are aware of is the rotation of senior staff in the department. I no longer have Brien Hallett on my left-hand side: I have Bronwyn Notzon, who is the new Usher of the Black Rod, and all of the other senior officers have moved into new positions. This is part of our long-term policy of, I suppose, succession planning and making sure that experience in a small department is spread as broadly across the senior management ranks as possible. Thank you.

CHAIR: Thank you. I will go to questions.

Senator FAULKNER: I would just like to ask some questions about Senate vacancies, if I could—both prospective vacancies and vacancies that have recently been filled.

We have had the situation, as you know, where there has just been a joint sitting of the New South Wales parliament, and Senator Bob Carr's vacancy for his current term has been filled. Would you just confirm for the benefit of the committee that that has occurred?

Dr Laing : That has occurred, yes.

Senator FAULKNER: And therefore you would expect Senator O'Neill to be sworn in on the next day of the sitting of the Senate?

Dr Laing : Yes, provided we have the paperwork through from Government House.

Senator FAULKNER: Usually it occurs within that time frame? They have a couple of weeks.

Dr Laing : It certainly does.

Senator FAULKNER: Okay, and that is standard procedure. What I am interested in is, of course, the fact that Senator Carr has also resigned a position that he was elected to with his term to commence on 1 July 2014. It is correct that he has resigned from both positions?

Dr Laing : That is correct, yes.

Senator FAULKNER: Just a little bit of information, perhaps, for the historical record: to my knowledge this is the first time—perhaps only by a matter of a few days—that we have had a situation where a senator has resigned from a seat, effectively, that he or she does not hold.

Dr Laing : That is correct, yes, but if I could give a little bit of background: we have had a senator elect die in the 1930s—

Senator FAULKNER: Yes.

Dr Laing : which also created a casual vacancy. We came close in 1993 when Senator Tate was to be appointed as an ambassador; therefore, to take on an office of profit under the crown. But in 1993 the election was in March, which was a lot closer to the commencement of the new term, and circumstances were such that Senator Tate waited until after 1 July and resigned in the first few days of July. So he effectively resigned during his new term to which he had not been sworn but which had nonetheless commenced. So that distinguishes that situation from the circumstances involving Senator Carr, where he resigned from his current term, if you like, but because the process of election of New South Wales senators was complete—we had the poll, the poll had been counted, the results had been declared, the writ had been returned, the writ was in our possession; the writ had been provided to me, actually, by Government House—we had evidence that he also had been elected to a term beginning on 1 July. So he in effect resigned from two terms, which is unprecedented but, we believe, sound in principle.

Senator FAULKNER: That is right. And of course the Constitutional provisions for replacement have changed since the 1930s as well.

Dr Laing : They were extensively rewritten in 1977.

Senator FAULKNER: Correct. Clerk, where does this leave us in terms of the seat for which Senator Bob Carr was elected in the 2013 federal election? This is primarily not a matter for the Senate; it is a matter for the New South Wales parliament. I think that is fair to say. But can you make clear to the committee whether that is your understanding: this is really not a matter for this parliament but a matter for the New South Wales parliament?

Dr Laing : That is correct. The President has advised the Governor of New South Wales of the two vacancies—the one until 30 June 2014 and the second vacancy commencing on 1 July 2014—and the New South Wales parliament has taken the view, quite validly, that, because there is currently only one vacancy, they have filled the current vacancy until 30 June 2014. That means that at some point in the future, and perhaps following the logic of the advice that the New South Wales parliament tabled, they will fill the second vacancy, at some point next year. I expect not until after 1 July. That is speculation on my part—

Senator FAULKNER: If that process is followed, we will see a situation where the vacancy will not be filled until effectively there is a vacancy. So it is not beyond the realms of possibility, if this current course of action is progressed, that we would see Senator O'Neill cease to become a senator on 30 June 2014, and then become a senator again at a new joint sitting of the New South Wales parliament?

Dr Laing : That is my understanding—yes.

Senator FAULKNER: That is the legal advice of the New South Wales parliament?

Dr Laing : That is right. The parliament obtained advice from the New South Wales Crown Solicitor and the import of that advice was there was only one vacancy at the moment that the parliament could fill.

Senator FAULKNER: Given that we are in uncharted waters in relation to this—as you have said, this has never happened before—is the department of the Senate giving consideration to what occurs in relation to the senator who might find themselves in this position? That is not a matter for New South Wales. In other words, what issues arise for the Senate and the senator—in this case, her office, staff and so on?

Dr Laing : The issues that arise are both procedural and practical. In practical terms, Senator O'Neill will cease to be a senator on 30 June—therefore, she will not continue to be paid as a senator during the interim; her staff will be subject to the provisions in the MOP(S) Act that cover parliamentary staff; she will have the usual period of grace with her office accommodation, and of course we would look at being very flexible with regard to her—

Senator FAULKNER: One would assume you would be sensible in those sorts of—

Dr Laing : I should imagine that we would be sensible. I cannot speak for the Department of Finance and Deregulation, of course.

Senator FAULKNER: No-one can. That is right.

Dr Laing : Procedurally, Senator O'Neill will not be able to serve on committees during the period in which she is not a senator.

Senator FAULKNER: Indeed.

Dr Laing : That may well affect the winter public hearing programs of the committees that she will no doubt be appointed to.

Senator FAULKNER: Is there likely to be a further engagement between the Department of the Senate and the New South Wales parliament on this issue prior to 30 June next year?

Dr Laing : Not formally. The President has formally communicated to the Governor of New South Wales the necessary information, but of course informally I would be ringing my colleagues or speaking to my colleagues in New South Wales about what they propose.

Senator FAULKNER: The New South Wales officials will obviously be aware of the unprecedented nature of this interregnum, one assumes?

Dr Laing : Indeed, they are—yes. I am assuming that too, but I will be following up with them at an appropriate time.

Senator FAULKNER: I might progress this at the additional estimates next year. Secondly, Chair, in relation to the Senate vacancies issue, where are we up to, Mr President or Clerk? Where are we up to in relation to filling the vacancy of former Senator Joyce?

Dr Laing : The matter has been communicated to the Queensland Governor by the President in the usual way. I understand that a nomination has been placed before the Queensland parliament, but the matter has been adjourned until 13 February, I believe, pending the completion, perhaps, of an investigation by the CMC.

Senator FAULKNER: I have certainly read that in the media too—the position that Senator-elect O'Sullivan, in this case, finds himself in. I have read of communications between the Deputy Clerk, as Acting Clerk, in relation to concerns about the constitutional validity of delay in Mr O'Sullivan taking his seat. Could either you or the Deputy Clerk just very quickly inform the Senate about the status of that communication and the status of that advice?

Dr Laing : I am not sure if I understand the question.

Senator FAULKNER: I read this in the Australian newspaper, in an article on 10 October. I will just quote it:

Acting Clerk Richard Pye has given written advice that there is no constitutional validity to delay Mr O'Sullivan taking his seat on the grounds the former treasurer of the Liberal National Party had been cited as a "relevant" party to the CMC's electoral bribery probe.

First of all, is that accurate?

Dr Laing : It sounds like a rather garbled account of advice that was given.

Senator FAULKNER: I do then apologise for my originally garbled question. One should never depend on the Australian newspaper; hence my earlier question. Perhaps either you or the Deputy Clerk could outline to the committee the status of any communication with or advice provided to the Queensland parliament.

Dr Laing : I do not believe we have provided any advice to the Queensland parliament other than the constitutional communication from the President to the Governor of Queensland saying that there is a vacancy.

Senator FAULKNER: Has the Deputy Clerk provided advice to anyone in relation to this?

Dr Laing : We provide advice to individual senators, as you know.

Senator FAULKNER: Yes. And I appreciate that that advice is confidential, but it is not so confidential that it has not appeared in the Australian newspaper. If anyone could throw any light on it, that would be helpful.

Dr Laing : Let me attempt to throw some light on it by indicating that there are two separate issues here. One is the ongoing concern of the Senate to ensure that casual vacancies are filled as expeditiously as possible. That is not the issue that is being discussed here. The other issue is the constitutional grounds for disqualification of a candidate or senator. As you know, they go to things like office of profit under the Crown, being convicted of an offence punishable by a sentence of more than 12 months and allegiance to a foreign power. They are the constitutional grounds, and I think what the article is trying to say is that in this case, given the circumstances involving the Queensland matter, there would not appear to be any constitutional grounds for the candidate not being qualified.

Senator FAULKNER: The article did go on to say that advice had been provided by the Deputy Clerk to Senator McKenzie, and one assumes that is the advice that was being referred to. I treat that in the normal way of clerical advice—as you do—and that is fine. That is helpful to understand the background. What is the current status and timing, as you understand it, in relation to Senator-elect O'Sullivan taking his seat?

Dr Laing : If I could be pedantic, he is not yet a senator—he is not a senator-elect; he is a nomination made by the relevant party to the Queensland—

Senator FAULKNER: What terminology should I use?

Dr Laing : Mr O'Sullivan.

Senator FAULKNER: Okay, why don't we just say Mr O'Sullivan then. I was trying to be very generous to him, but there we are.

Dr Laing : Mr O'Sullivan is the nominated candidate. The Queensland parliament has adjourned its consideration of the matter. On 13 February, when the matter has been adjourned to, it may complete its deliberation process and make a decision, at which point Mr O'Sullivan instantly becomes Senator O'Sullivan. Of course it may, depending on the circumstances, decide to adjourn the matter further.

Senator FAULKNER: Is there any precedent in relation to delay? I believe there is.

Dr Laing : Yes, there are precedents in relation to delay.

Senator FAULKNER: Is there any precedent in relation to delay on the basis that a state investigative process is underway?

Dr Laing : There is no such precedent for that situation.

Senator FAULKNER: So, in a sense, we are in uncharted waters here too.

Dr Laing : Yes, again, we are in uncharted waters.

Senator FAULKNER: I will not ask why there is so much uncharted water.

Dr Laing : A combination of circumstances.

Senator LUDWIG: Following up on that, presumably this unchartered waters circumstance can continue for—rather than me suggesting the answer, how long can it go on for?

Dr Laing : That is really up to the Queensland parliament, as it is up to the New South Wales parliament to fill the vacancy from 1 July. Of course, in the past the Senate has become frustrated at delays by state parliaments in filling casual vacancies, because it means obviously that the state does not have its full representation and that is not something that the Constitution contemplates. The Senate has in the past, by resolution, expressed its view about the need for state parliaments to fill vacancies as expeditiously as possible, including recalling the houses should they be in an extended period of non-sitting.

Senator LUDWIG: So the term of former Senator Joyce's position, if we call it that, is due to end when?

Dr Laing : I might have to take that on notice because I do not have it in my head. I think he was a 2017—

Senator LUDWIG: My understanding is that it would be June 2017, otherwise we would be calling Mr O'Sullivan 'Senator-elect O'Sullivan'.

Dr Laing : Only if he had been elected to that place at the general—

Senator LUDWIG: Yes, which meant that he was elected at the general election last, but then there would not have been a casual vacancy.

Dr Laing : That is right.

Senator FAULKNER: Clerk, could I also ask you something that I did flag with you? You might indicate to the committee the number of Senate ministers we have currently.

Dr Laing : We currently have 11 Senate ministers.

Senator FAULKNER: This, of course, as I think everyone would appreciate, is a very high number of Senate ministers. Have you been able to establish what records are broken in this regard?

Dr Laing : Eleven Senate ministers is a new—

Senator FAULKNER: World record?

Dr Laing : I would not say 'world record', but of course all these things are relative—

Senator PARRY: Talent being one.

Senator FAULKNER: I do not think you are going to worry the scorers in that regard, Senator!

Dr Laing : As with the number of casual vacancies, which have seemed quite high in recent times, it is because we are coming off a fairly low base. Over the previous parliament, particularly I think given the situation of minority government in the House of Representatives, the game was not happening in the Senate, so we had six to seven Senate ministers. Since the Senate increased in size in 1984, there have been a couple of periods where we have had 10 Senate ministers. So 11, while it is a new record, relatively speaking it is one more than we have had before, but we are coming off a low base.

Senator FAULKNER: I accept, Clerk, it is not a major issue, but it is a matter of interest to the two or three people who are interested in such things—

Dr Laing : Yes, and I am one of them, Senator.

Senator FAULKNER: that we now have more Senate ministers than at any other time in the history of the Commonwealth.

Dr Laing : That, as a statement, is literally true—yes.

Senator FAULKNER: I would like to make statements that were literally true, if I could.

Dr Laing : If one put it in context; there are some other considerations, as I have mentioned. Of course, it should make scheduling estimates relatively straightforward.

Senator FAULKNER: That is more a prediction than, otherwise, a statement of literal truth.

Dr Laing : It is not a prediction; it is a hope.

Senator WONG: An expression of hope.

Senator FAULKNER: A newspaper article was published in the Sydney Morning Herald on 15 October—that does not mean it is accurate. It was actually an article entitled 'Worst-case scenario for Brandis shelves'. That could mean anything. It was actually an article about bookshelves in Senator Brandis's office. But I just want to quote a paragraph to you, if I could:

Senator Brandis ordered the custom-made bookcase to be installed in May 2010, according to the Department of the Senate. Soon after the Coalition won the election, the Attorney-General and Arts Minister asked for the shelves to be moved into his new digs.

''We weren't able to move it [initially],'' said a spokeswoman for the Department of the Senate, adding that the task was not technically impossible; it would just require some dismantling.

My interest here is in if this is accurate and, in fact, if this was a matter for the Black Rod and the Department of the Senate—as opposed to the Department of Parliamentary Services. I just thought you might assist us with that.

Dr Laing : Yes, it is a matter for the Department of the Senate. The background is that back in 2007 Senator Brandis had requested some additional bookshelves. He had a large collection of books that he wanted to keep in his Parliament House office. In those days, when things were not so dire as they are now, we actually had a bit of money for things like that and so the bookshelves were installed. He then became Deputy Leader of the Opposition; the bookshelves were moved to his new accommodation. When he became Attorney-General, there was a request for the bookshelves to be moved to his ministerial office. Now, it is not a demarcation thing, but ministerial furniture does not belong to the Department of the Senate; it does in the Senate wing. Attempts were made to see if the bookshelves could be lent and whether they would fit, but I think the bottom line was that they would not fit in the curved configuration of the ministerial offices. Now, if there is anything more the Black Rod would like to add to that, I would invite her to do so.

Ms Notzon : That is correct.

Senator LUDWIG: The initial placement was when Senator Brandis was not a shadow minister?

Dr Laing : Yes, he was. It was after 2007 election.

Senator LUDWIG: And the cost of the construction of the bookcase?

Dr Laing : It was $6,957.50.

Senator LUDWIG: I take it there was a second shift to a new suite?

Dr Laing : That is right. I cannot tell you exactly when—yes, I can. It was May 2010 when the shelves were moved from the old office, which was SG34, to the Deputy Leader of the Opposition's suite, which is SG96.

Senator LUDWIG: And the cost of that?

Dr Laing : That was not separately costed, because it would been part of a whole series of moves that happened in conjunction with it.

Senator LUDWIG: So going back to the original request, was the request made by Senator Brandis at the time for the establishment of the bookshelf and what form did it take? Was it a letter or an email?

Dr Laing : I do not think we know that.

Senator WONG: Could you take that on notice.

Dr Laing : We will take it on notice.

Senator WONG: And, if possible, provide the communication or record of communication.

Dr Laing : We will see what we have got on file, bearing in mind that none of the decision makers at that time are now employed in the department.

Senator WONG: You said you would not give us a direct cost of the move in 2010, because there were other things. But it is a different thing, is it not? It is not people putting stuff in boxes and trundling down the hall, you are actually disassembly and reassembling a bookshelf in someone's office, so presumably there was time spent on that. If so, by whom?

Dr Laing : Probably by an external contractor, who we engage to do all those sorts of moves.

Senator WONG: Can we follow that up.

Dr Laing : We will see what we have got in terms of detail.

Senator WONG: I was going to say that the Senate staff are good at multitasking, but I do not know how many carpenters and cabinetmakers there are.

Dr Laing : We do not have any carpenters or cabinetmakers on staff.

Senator WONG: So there would be documentation associated with a contractor to do that, if you could find that. Would there have been any other expense other than that in 2010?

Dr Laing : No.

Senator LUDWIG: Just coming back to the original installation of the bookshelf itself, you do not recall whether there was any correspondence that went from—Senator Brandis would have initiated the request, I take it?

Dr Laing : I believe so, but we are going to check the files and see what we have got.

Senator LUDWIG: Was that considered at the time, if any other senator also requested a bookshelf of that type?

Dr Laing : I think any other requests would have been considered by the Black Rod at the time and assessed against what we had funds for.

Senator LUDWIG: Coming back to the procedure for assessing, can you just establish how that works? A senator makes a request for an enormous bookshelf that takes up an entire wall and height; do you then say yes to anyone, or a senator, who asks for that? How does the procedure work?

Dr Laing : We always try to accommodate senators' reasonable requests and we will look at the file and see what the process was.

Senator LUDWIG: So you can't recall what the process was?

Dr Laing : No; in 2007, I was Deputy Clerk, I think, and I would have had no contact with the decision-making process.

Senator LUDWIG: There is no procedure manual to stipulate how requests from senators are dealt with when they would fall into the type of request that—

Dr Laing : I doubt it. But, of course, we do work within procurement guidelines. We will see what the file tells us.

Senator LUDWIG: Is there a cost limit for requests?

Dr Laing : I am not sure that there was anything as formal as a cost limit. The cost was not excessive. It is today considered to be good value for money, and of course value for money is the main criterion that we use to acquire goods.

Senator WONG: Sorry, Clerk; on what basis do you say it is value for money? It is currently not being used. It was for a library of how many books?

Dr Laing : I do not know.

Senator WONG: What was the amount that was spent?

Senator LUDWIG: $7,000.

Senator WONG: No, on the books.

Senator LUDWIG: $13,000 worth of books.

Senator WONG: $13,000 worth of books. Most senators do not carry around a library that costs $13,000. I am just unclear as to why you would say it was value for money.

Dr Laing : On the basis of independent advice that we have received in recent years about it.

Senator FAULKNER: What was the precise figure, again, Clerk?

Dr Laing : $6,957.50

Senator FAULKNER: Yes. What is the status of these shelves now?

Dr Laing : They are in the Deputy Opposition Leader's suite, SG96.

Senator WONG: I do not think Senator Conroy has $13,000 worth of taxpayer funded books. But that is not your concern.

Dr Laing : I have no idea what the provenance and origin of the books was.

Senator WONG: That wasn't discussed?

Dr Laing : Not to my knowledge.

Senator FAULKNER: And the intention is for those bookshelves to stay in place in that suite?

Dr Laing : At this stage, yes, and that is because we have had no requests to move them, nor has another senator said, 'Gee, I'd like some bookshelves,' and we have then looked at whether we could move them from the current suite into another suite. So, if you have a lot of books, then we've got some bookshelves!

Senator FAULKNER: Anyway, no doubt this matter will be returned to when the Department of Finance appear before the committee and such matters, in relation to the cost of the contents of the bookshelf, can be dealt with there. Anyway, at the moment we know that the bookshelves themselves cost $6,957.50 and we appreciate you letting us know. Thank you, Clerk.

CHAIR: Senator Faulkner, before you continue—Dr Laing, I just had a question of confirmation. Did Senator Ludwig ask you to table or to provide a list of any other custom furniture that had been requested in recent times? Is that what I understand?

Dr Laing : I do not think so, no.

Senator LUDWIG: It was only in relation to this issue.

CHAIR: Okay. Perhaps, Dr Laing, you might be able to prepare a list of any other requests for custom furniture over recent years.

Dr Laing : Yes, we can do that, Chair.

Senator JACINTA COLLINS: I wish to follow through on a couple of issues here too. Clerk, you indicated that this was in the period before things became somewhat more dire—I presume you mean in terms of efficiencies as you have reported on in the annual report.

Dr Laing : In terms of the department running at a deficit, yes. As a result of both the impact of a budget that wasn't increasing and of the demands on the budget from the operations of the Senate and its committees.

Senator JACINTA COLLINS: And yet in the report you indicate that the need for efficiencies has been continuing since 1987-88.

Dr Laing : That is right.

Senator JACINTA COLLINS: Can you pinpoint what point in time it was that the parliament determined not to continue, for example, with plants. I think it was probably the most publicly celebrated efficiency measure.

Dr Laing : That is something you might want to check with DPS because of the plant contract.

Senator JACINTA COLLINS: You can't pinpoint that.

Dr Laing : I think it was in the last parliament or the one before, but we do not manage the plant contract.

Senator JACINTA COLLINS: One other question about what appear to be from the pictures an extraordinarily dominating set of bookshelves—was the integrity of the building and fixtures process engaged with at all during this process?

Dr Laing : We will include that in our response on notice. We will check what consultations occurred.

Senator JACINTA COLLINS: Because almost any other change in terms of members' and senators' suites involves often some consideration of the integrity of the original fit-out of Parliament House.

Dr Laing : That is right, and I expect it would have happened in this case but we will get the details for you.

Senator LUDWIG: I have not quite finished with the bookshelf. You mentioned earlier that you deal with requests as they come in, and this was one that you dealt with. I was particularly interested to know whether you could also identify that correspondence, so to be plain about the toing and froing and whether it was a request from Senator Brandis and a reply from the Department of the Senate—so not only the initial request but also if there is a chain of correspondence between the department of the Senate and Senator Brandis. It seems, having been here not quite as long as some others, an unusual request and to have that met without a blink from the Department of the Senate.

Dr Laing : We will check the files to see what blinking occurred, Senator.

CHAIR: I thank the Department of the Senate.