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Monday, 2 December 1985
Page: 2695


Senator JESSOP(5.44) —I wish to speak on a rather important matter that was the subject of a parliamentary select committee inquiry some years ago. I was the Chairman of the Senate Select Committee on Parliament's Appropriations and Staffing which recommended the establishment of an appropriations and staffing committee of the Parliament. I will refer fairly briefly to the recommendations made in November 1981 which were endorsed unanimously by the Senate. They were, predominantly, that the Committee:

(b) resolves that the Senate should establish a Standing Committee as recommended to consider the Senate's appropriations and staffing;

(ba) proposes that the Estimates for the Senate as finally agreed to by such Standing Committee be submitted to the Minister for Finance for inclusion in a separate parliamentary appropriation Bill;

(c) calls on the Government to agree that the appropriations for the Parliament be removed from the Bill for the ordinary annual services of the Government and included in a separate Parliamentary Appropriation Bill;

(d) agrees that the expenditure administered by the Executive departments on behalf of the Parliament be brought together in a Parliamentary Appropriation Bill and that provision be made for an Advance to the President of the Senate on the same basis as the Advance to the Minister for Finance;

(e) directs that the President arrange for discussions to be held with the appropriate Executive departments to review those functions which are currently administered by them, and subsequently to plan the transfer of functions suitable for administration by the Senate; and

(f) agrees that section 9 of the Public Service Act 1922 be amended to vest in the Presiding Officers, separately or jointly as the case may be, the power of appointment, promotion, creation, abolition and reclassification of offices, and the determination of rates of pay and conditions of service.

The resolution was the virtual culmination of years of effort on the part of a number of senators and clerks. I think that this reflected the interests both of the Australian Labor Party and the Liberal and National parties at that time. We have seen the development of that to a degree where we now have a Senate Standing Committee on Appropriations and Staffing which deals with the matters that are of concern to the Parliament.

Historically, the need for parliament to be independent of government and of Treasury decisions about the funding of its operations has been recognised by similar parliaments throughout the world. For example, the House of Commons in the United Kingdom has had such financial arrangements operating since 1979, some six years. The Parliament of the United States of America has had a similar committee system working for the benefit of ordinary members of parliament for the past 62 years and Canada has had a similar system for the past 117 years. So in carrying out our initial investigations, the Select Committee of this Senate was made aware of a common source of concern to all parliaments; that is, a growing imbalance in the relationship between the Parliament and the Executive. There is always a tendency in Australia to regard executive government as being paramount and the finance for parliament as being an ordinary annual service of government, which is quite wrong. We hope that all of these matters have now been corrected.

The parliamentary budgets of the majority of members of the Inter-Parliamentary Union are not subject to executive modification. Their financial autonomy is, therefore, guaranteed. Governments of all colours are quick to point out the responsibility they have to the electorate for overall budgetary policy and the level of public expenditure, and the responsibility they have for raising the revenue to fund that expenditure. But in the light of the need for parliament to be able to control its own activities, and in the light of the arrangements that obviously have been operating for many years in most democratic countries, as I have said, it is nonsense to suggest that executive government needs to maintain control over the total funds available for expenditure by parliament. I believe, and the Committee believes, that parliament should be in a position to influence that expenditure but not to control it.

Up to now successive Ministers-for example, Senator Dame Margaret Guilfoyle and Mr Dawkins-have been very co-operative with the Appropriations and Staffing Committee with respect to this matter. However, the present Minister for Finance, Senator Walsh, seems to have been not quite so co-operative. In fact, on some occasions he seems to me to have been quite antagonistic. I suggest that history should be regarded. I suggest that the present Minister ought to reflect upon the experience of other countries which have run such an arrangement successfully. I have an article which was written by me and Mr Murdoch, the Secretary to the former Select Committee. It is an interesting document and I believe that it ought to be recorded in Hansard for those who have not had an opportunity to read it. I seek leave to have that article from the Parliamentarian of January 1983 incorporated in Hansard.

Leave granted.

The document read as follows-

Senator Donald S. Jessop

Chairman of the former Select Committee

and

Peter N. Murdoch

Usher of the Black Rod and Secretary of the former Select Committee

AUSTRALIAN SENATE SELECT

COMMITTEE ON PARLIAMENT'S

APPROPRIATIONS AND STAFFING

On 26 November 1981, the Australian Senate endorsed the conclusions and recommendations of the Senate Select Committee on Parliament's Appropriations and Staffing and specifically resolved that:

(a) the Senate should establish a Standing Committee to consider the Senate's appropriations and staffing;

(b) the estimates for the Senate, as finally agreed to by such standing committee, be submitted to the Minister for Finance for inclusion in a separate Parliamentary Appropriation Bill;

(c) the government agree that the appropriations for the Parliament be removed from the Bill for the ordinary annual services of the government and included in the separate Parliamentary Appropriation Bill;

(d) the expenditure administered by the executive departments on behalf of the Parliament be brought together in a Parliamentary Appropriation Bill and that provision be made for an advance to the President of the Senate on the same basis as the advance to the Minister for Finance;

(e) the President arrange for discussions to be held with the appropriate executive departments to review those functions which are currently administered by them, and subsequently to plan the transfer of functions suitable for administration by the Senate; and

(f) section 9 of the Public Service Act 1922 be amended to vest in the Presiding Officers, separately or jointly as the case may be, the power of appointment, promotion, creation, abolition and classification of offices, and the determination of rates of pay and conditions of service.

This resolution was the virtual culmination of years of effort on the part of a number of Senators and Clerks.

Appropriations history

In 1965, the Committee appointed by government Senators on Appropriation Bills and the Ordinary Annual Services of the Government recommended that the appropriations for the Parliament should not be included in the Appropriation Bill for the ordinary annual services of the government. The committee pointed out that it was inconsistent with the concept of separation of powers and the supremacy of Parliament for the Parliament to be treated as an ordinary annual service of the government. These views were reiterated by other Senators and subsequently were supported by the Senate House Committee in 1972 and by Senate Estimates Committee A in 1974. But there was no response from government.

The funding of Parliament was again commented on in the 1976 report of the Joint Committee on the Parliamentary Committee System. It was suggested that the Parliament should not be dependent upon the government or upon Treasury decisions for the funding of its operations. The joint committee pointed to the greater level of financial independence of the committees of the British and Canadian Parliaments and to the inappropriateness of arrangements whereby parliamentary activity, including parliamentary committee activity, can be curtailed by government financial restriction. Still there was no response from government.

Again, in 1978, Senate Estimates Committee A reported that it firmly held the view that the appropriation for Parliament was not an ordinary annual service of the government. The committee stated that Parliament was a separate arm of government to which the Executive was accountable, and that it must be master of its own affairs. The committee suggested to the Senate that the time was 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 would be subject to Senate amendment. Still there was no response from government.

The point was restated in the Estimates Committee A report of November 1978 and referred to yet again in its October 1979 report 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 . . . 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 still there was no response from government.

Staffing history

In relation to the staffing of Parliament, the Senate made amendments to the Public Service Bill 1902 to put beyond doubt the principle that all staff servicing the Parliament should be under the control of the Parliament, and not the Public Service Board (the government's personnel management authority). Consultation with the Public Service Board was considered appropriate only to protect the rights of the officers of the Parliament with respect to conditions of service. In no way could, or should, that examination by the Public Service Board 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 Board for the parliamentary staff, or an abrogation of the rights of the Parliament to determine its own affairs.

However, despite these statutory provisions, over the years the Executive imposed upon the Parliament arrangements which have meant that the advice of the Public Service Board had to be sought on matters relating to parliamentary staff, be they position classifications or additional staff requirements. If the Public Service Board concurred with a proposal, it could then be submitted to the Executive Council for approval.

More recently, staff numbers in the Australian Public Service became subject to a policy of Executive-determined levels, commonly referred to as staff ceilings, and the Executive extended these to include the parliamentary departments.

The Select Committee's investigation

It was against this background that, on 23 May 1980, the Senate resolved that a Select Committee be appointed to inquire into and report on Parliament's control of its own appropriations and staffing, and related matters.

Due to the rather specialized nature of the inquiry, the Select Committee did not advertise in the national press for submissions. Instead, it made direct approaches to organisations and individuals having a particular interest in, or involvement with, Parliament's appropriations and staffing. The Select Committee also obtained from the Presiding Officers and staffs of the United Kingdom House of Commons, the Canadian Senate and the House of Commons, and the United States' Senate and House of Representatives, information concerning their practice in funding and staffing their legislatures.

The Select Committee's investigation showed that the common source of concern to all Parliaments is the growing imbalance in the relationship between Parliament and the Executive, the rapidly increasing power and influence of the Executive, the need for Parliament to strengthen its oversight and check of Executive activity, and the concurrent need for the Parliament to regain or assert greater independence and autonomy in regard to its own internal arrangements.

The Select Committee found that for the majority of members of the Inter-Parliamentary Union, parliamentary budgets are not subject to Executive modifications; the financial autonomy of these legislatures is thus guaranteed. The general pattern is that the estimates are drawn up by the directing authority of Parliament, or by a special committee, on the basis of figures prepared by the administrative authorities, and then approved by the Chamber as a whole. As to the involvement of the Executive, typically the Minister of Finance enters the sums required by the Parliament into the national estimates without questioning them or consulting the government about them. In relation to the United Kingdom, Canada, and the United States, specifically, the concept of each legislative Chamber independently maintaining control of its own staffing and funding is readily accepted in all three countries. The United Kingdom House of Commons has had such an arrangement operating for the last four years; the United States for the last 60 years; and Canada for the last 115 years!

Governments, of couse, are quick to point out the responsibilities they have to the electorate for overall budgetary policy and the level of public expenditure, and that they have the responsibility for raising the revenue to fund that expenditure. But, in the light of the arrangements operating in most countries, it is nonsense to suggest that government needs to maintain control over the total amount of funds available for expenditure by the Parliament. It should certainly be in a position to influence, but not to exercise total control.

Despite the fact that most other Parliaments and Executives have made arrangements which provide for real autonomy in relation to parliamentary appropriations and staffing, the Select Committee understood the reluctance on the part of the Australian government to agree to an immediate total reform package. In addition, the Select Committee was aware that for its purposes the House of Representatives may find other arrangements more suitable.

The Select Committee was therefore mindful of the need for an experimental approach to be adopted in making any new arrangements for appropriations and staffing. This is especially true in a bicameral Parliament and in one in which there is a sharing of certain services such as the Library, the Reporting Staff, and housekeeping functions.

For this reason, the Select Committee did not choose to follow the example of the United Kingdom House of Commons as the creation of a Commission would involve legislation which would, of necessity, produce a rigid, structured approach rather than the flexible approach which is required at the moment. Accordingly, the Select Committee recommended that the Senate, and, where appropriate, the government, should agree to a trial of the proposed arrangements.

The government response

By 25 March 1982, the government had had the benefit of the views of the Select Committee members-the Select Committee having ceased to exist upon the presentation of its report-concerning its proposed response and had also discussed the Select Committee's Report with the Presiding Officers.

However, as some nine months had elapsed since the Select Committee presented its report and still the government had not given birth to its response, a motion was agreed in the Senate, without debate, appointing the Standing Committee on Appropriations and Staffing.

The Standing Committee was charged with the task of inquiring into:

(a) proposals for the Annual Estimates and the Additional Estimates for the Senate;

(b) proposals to vary the staff organizational structure of the Senate, and staffing and recruitment policies; and

(c) such other matters as are referred to it by the Senate.

In relation to the Estimates, the Standing Committee:

(i) determines the amounts for inclusion in the Parliamentary Appropriation Bills for the Annual Estimates and the Additional Estimates; and

(ii) reports to the Senate upon its determinations prior to the consideration by the Senate of the related Parliamentary Appropriation Bill.

In relation to staffing, the Standing Committee:

(i) makes such recommendations to the President as it sees fit; and

(ii) reports to the Senate on any matter it considers necessary.

Finally, the Resolution establishing the Standing Committee provided for the committee to make an annual report to the Senate on the operations of the Senate's appropriations and staffing, and related matters.

The government's response to the Select Committee's report was brought down in the Senate immediately after the Senate had agreed to establish the Standing Committee.

The government clung to the position that it needed to maintain control over the total amount of funds available to the Parliament because of its constitutional responsibility for budgetary policy and for the level of public expenditure. This attitude, of course, continues to ignore the arrangements of other Parliaments and their Executives. But more importantly, it overlooks the constitutional responsibility that the Parliament has. This responsibility is reflected in the maxim: government proposes; Parliament disposes.

The outcome of the situation where the Senate has empowered one of its committees to determine its appropriations and where the government continues to insist that it must have overriding control will be left for the future to determine. However, for those who believe in the sovereignty of Parliament, and the accountability of the Executive to Parliament, it is a fight worth winning.

The government, however, did concede that detailed control over individual expenditure items was not necessary and proposed an overall figure for each House, and the service departments of the Parliament, broken down into capital and recurrent items.

The government agreed to the Select Committee's other proposals concerning a separate Bill for the Appropriations for the Parliament and discussions are now under way concerning the transfer to Senate and House of Representatives administration of those functions currently administered by government departments.

And finally, the government agreed to the committee's recommendation that the President of the Senate and the Speaker of the House of Representatives-separately in the case of the Senate Department and House of Representatives Department and jointly in relation to the Parliamentary Library, the Parliamentary Reporting Staff and the Joint House Department-be vested with the statutory power of appointment, promotion, creation, abolition, and classification of offices, and the determination of rates of pay and conditions of service.

The government also withdrew its imposition of staff ceilings on the Parliament and handed over the responsibility for staff numbers to the Presiding Officers. In doing this, the government quite properly made the point that the ``. . . decisions of the Parliament in these areas should be subject to the same types of scrutiny, inside and outside the Parliament, as those of the government. It is up to the Parliament to prove its managerial ability in the same fashion as the government.''

These views, of course, accord with those expressed by the Select Committee in recommending that the proposed Senate Standing Committee on Appropriations and Staffing make an annual report to the Senate on its operations. The government's response has asked that the annual report include reference to the numbers, classification, and disposition of staff, as well as any variation in terms and conditions of employment.

Summary

Overall, the government is to be commended for its response even though it was a slow, painful process akin to extracting teeth. The nature of the government response no doubt owes a lot to the behind-the-scenes efforts of the leader of the Government in the Senate (Senator the Hon. Sir John Carrick) and the Minister for Finance (Senator the Hon. Dame Margaret Guilfoyle).

As mentioned earlier, what has been achieved represents years of effort on the part of a number of the Senators and Clerks. Their foresight and perseverance now enables the Australian Senate to embark upon an experiment which we hope will achieve the proper constitutional relationship with the Executive, in practice as well as in theory.

The success of the venture depends upon common sense; on the part of the Senate as well as the government.


Senator JESSOP —I thank the Senate. Also, just for the record, I have a letter which was written on 25 February 1982 to the then Leader of the Government in the Senate, Senator Sir John Carrick, in response to the report of the Parliament's Appropriations and Staffing Committee. This letter was signed by the members of the Committee, including the now President who was Deputy Chairman of that Committee, Senator Missen, Senator Robertson and Senator Mason. I think it is an interesting document which ought to be incorporated. I spoke to Senator Robertson and others about it. I seek leave to have that letter incorporated in Hansard as well.

Leave granted.

The letter read as follows-

AUSTRALIAN SENATE

CANBERRA, A.C.T.

25 February 1982

Senator the Hon. Sir John Carrick,

Leader of the Government in the Senate,

Parliament House,

CANBERRA A.C.T. 2600

Dear Senator,

Parliament's Appropriations and Staffing Report-Proposed Response

As requested in your letter of 24 November 1981, the members of the Senate Select Committee on Parliament's Appropriations and Staffing have now had an opportunity to consider the Government's proposed response.

The Senate Committee was very much aware that the Reference before it was one which required a cautious, reasoned, responsible approach. Testimony to the fact that the Report of the Committee achieved this objective is given by the very wide acceptance of its recommendations by Senators and Members from all parties and by Senator Harradine.

By contrast, the Government's proposed response is an insult to the Senate and the House of Representatives. Whilst it purports to indicate a willingness to give the Parliament greater autonomy, it proposes tighter controls. In fact, the response suggests that Executive wishes to make sure that the Parliament only has sufficient funds and staff to do what the Government thinks is appropriate. This effectively places the Executive firmly in control of the Senate, the House of Representatives, the Committee system, the Library Resource Centre, etc.

No one would deny that the Government has responsibilities to the electorate for overall budgetary policy and the level of public expenditure and that it has responsibility for raising the revenue to fund that expenditure. But, in the light of overseas experience, it is incorrect to suggest that the Government needs to maintain control over the total amount of funds available for expenditure by the Parliament. It should certainly be in a position to influence debate on this issue but not to exercise total control. The Government's position cannot be sustained in the light of the Report of the Senate Committee. Governments in the U.K., U.S.A. and Canada have the same responsibility to their electorates as applies in Australia. Yet, the U.K. Parliament has had a similar arrangement to that proposed by the Senate Committee operating for the last four years; the U.S. for 60 years; and Canada for 114 years!

Appendix 3 of the Senate Committee's Report shows that the vast majority of parliaments in other countries have control over their own budgets. These examples make nonsense of the Government's claim that it needs to maintain control.

The Government's suggestion that it is prepared to approve a single global figure for expenditure by the Parliamentary departments would, in our view, result in increased Government control over the Parliament. It would constitute a direct attack on the independance of the Senate and the House of Representatives. Section 1 of the Constitution provides for two Houses of Parliament. Each House should have total control over its own appropriations and staffing and be allowed to determine its own priorities in these matters.

A global figure for the Parliamentary departments would facilitate an unpopular and unwarranted form of Executive domination. The result would be that, instead of the Government negotiating with the separate components of Parliament for appropriate levels of funding, the separate areas of Parliament would negotiate between themselves for allocation of funds. It is inevitable that the two Houses would have different priorities and it is unlikely that agreement could be reached between them. Consequently the Government could take the opportunity to adjudicate, thereby denying effective control of a House over its finances.

A single-line administrative vote was not recommended by the Senate Committee for the simple reason that, once Parliament has its own Appropriation Bill, a single-line appropriation is unnecessary. In addition, the Senate Committee did not wish to apply one set of accounting practices for the Parliament, when the Senate, and the Government, is on record as objecting to one-line appropriations for the Public Service generally.

The single-line figure would not meet the need for an Advance to the Presiding Officers. There must be a facility for urgent and unforeseen expenditure.

The question of what is, and what is not, an `ordinary annual service' is not justiciable. The High Court long ago (1911) decided that it is a matter for decision between the two Houses. This is why we have such agreements as the `1965 Compact'.

The Government can take the view that Parliament is an ordinary annual service of the Government, but it is only a view. The important point is, as advised to the Committee during its hearings by the Attorney-General's Department, that the matter is one for determination by each House. However, the Senate Committee was firmly of the opinion that to describe Parliament as `an ordinary annual service of the Government' is ridiculous.

The same arguments against the Government's proposals in relation to appropriations are applicable to the Government's staffing proposals. And, in addition, the recommendations of the Senate Committee are based on the Report of the Royal Commission on Government Administration and, with one variation, on the evidence given to the Committee by the Public Service Board. To suggest that what the Senate Committee proposes would result in `leap-frogging' in terms and conditions is incorrect. For instance, has the special allowance of some $6,000 p.a. for Ministerial and Opposition staff resulted in `leap-frogging'? Of course not! Parliament only has different terms and conditions where the circumstances warrant, e.g. long, irregular and inflexible hours of duty.

Once again, the Government wants control where it should only have influence, an attitude which totally ignores overseas experience.

Whilst we welcome the Government's agreement that appropriate amendments will be made to the Public Service Act to vest in the Presiding Officers the power to create, abolish, or reclassify positions and make appointments below the level of Permanent Head, we believe this should also apply to the position of Permanent Head. These appointments should not be Government appointments and thereby open to the possibility of political patronage. Parliament must make its own appointments and the higher the appointment, the more necessary it is for this practice to apply.

The Government's suggestion of a Joint Committee, if adopted, would ensure that any new arrangements would fail. Its response on the proposed `Joint Committee on the Scrutiny of Bills' referred to, and implied acceptance of, the 1976 Report of the Joint Committee on the Parliamentary Committee System. This Report indicated that there was a general view that Joint Committees were undesirable and unlikely to function satisfactorily. The suggestion strikes at the very roots of the autonomy and independence of the two Houses.

The rejection of the proposal for Ministers to be members of the Senate and House of Representatives Committees on the grounds that a Minister's position on any recommendation would be subject to Government policy cannot be supported. It is for the very reason of acquainting the proposed Administration Committees of the Houses with Government policy and influencing the Committees as and when necessary that they should be members of the Committees. And once again, the arrangement works perfectly well for the U.K., Canada and other countries.

In summary, it is a matter of regret that the Government's proposed response does not reflect the reasoned, responsible approach adopted by the Senate Committee and that it does not display the same sensitivity to the Parliament's position as the Committee displayed towards the Executive's position. In the interests of effective parliamentary democracy, it is imperative that the Houses of Parliament control their own appropriations and staffing.

Yours sincerely,

D. S. JESSOP...D. MCCLELLAND

E. A. ROBERTSON...A. J. MISSEN

C. V. J. MASON


Senator JESSOP —I thank the Senate.