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Monday, 2 December 1985
Page: 2705


Senator PUPLICK(6.18) —I rise briefly to support the motion moved by Senator Richardson. It seems to me that the issue has often been clouded in the question of constitutional form about the way in which appropriations are handled and are introduced into the Parliament, and in particular, the requirement of section 56 of the Constitution which states that appropriations are made only upon receipt of a message from the Governor-General. The question therefore arises as to how the Governor-General is to form the sorts of views which he must form before sending a message to the Parliament. It is largely put on the basis that he can do so only on the advice of the Executive Government. That is a point I want to contest and explore for a few moments.

One of the recent publications on the Constitution by Professor Zines Commentaries on the Australian Constitution makes the particular point that the Governor-General is referred to in the Constitution either as the Governor-General in Council or as the Governor-General. He indicates that certain sections of the Constitution-namely, sections 5, 21, 56, 57, 61, 62, 64, 65, 68, 69, 70 and 126-refer to the Governor-General alone. It is my contention that where the Constitution does not refer to the Governor-General in Council but refers to the Governor-General alone, there is an implication which I think can be sustained as an argument that the Governor-General has the right to consider advice which he receives from other than the Executive Council or his Ministers. This, of course, raises the whole question of the reserve powers of the Crown which were explored by Dr Evatt in his book The King and his Dominion Governors and much before that by the authoritative writer Todd in his book Parliamentary Government in the British Colonies. I believe that the point is made that from time to time a Governor-General may act on advice he receives other than from his Executive Council or, indeed, his Ministers. Both sides of the parliamentary process have, I believe, accepted that principle.

I know it is unfortunate to refer back to the events of 1975. However, I want to do so to draw an historical example and parallel. We on this side of politics accepted as part of what happened in 1975 that there was nothing improper in Mr Ellicott seeking to give advice unsolicited to the Governor-General. We accepted that there was nothing improper in the Governor-General seeking advice from the Chief Justice. Indeed, there is a great deal of constitutional authority for Governors and Governors-General in Australia and other former colonies seeking advice from Chief Justices and other figures. All sides have accepted that it was proper for the Governor-General to accept advice from a person who had lost the confidence of the House of Representatives and to grant that person a double dissolution. In fact, it was not just in 1975 that that occurred but on previous occasions Prime Ministers had lost the confidence of the House, gone to the Governor-General and been granted dissolutions of the Parliament.

It is interesting that, on the Labor side, one of the events of 1975 of importance was the belief that the Governor-General ought to receive the Speaker of the House of Representatives and take certain advice from him. Indeed, one of the principal criticisms made of the then Governor-General by Mr Whitlam at page 115 of his book, The Truth of the Matter, was that the Speaker, acting not as a member of the Executive but as a member of the legislative arm of government, was entitled to an audience from the Governor-General and the Governor-General was properly obliged to receive the representative of the Parliament, not of the Executive government, and accept certain advice from him. That may well be, and I believe is, a proper construction. After all, the role of the Speaker has been to be the representative of the Parliament and the people to the Crown, to speak to the Crown and to provide advice to the Crown-a role established as far back as the fourteenth century.

One of the constitutional hang-ups which might be implicit in Senator Richardson's motion is the way in which a message for appropriation should be handled other than exclusively by Executive Council advice to the Governor-General and by Governor-General's message to the Parliament. I maintain the argument that the Governor-General is entitled to receive advice from the Presiding Officers of the Parliament and to exercise his personal discretion as to the way in which he deals with that advice and the message which he might send to the Parliament recommending an appropriation flowing from the advice which he has received. I believe that that is a sustainable construction of the powers of the Crown in relation to the appropriation of moneys in terms of the formulas required by the Australian Constitution.

Be that as it may, the need for Senator Richardson's excellent motion arose because of an attempt by Senator Walsh to deny that process. Senator Walsh is recorded in the Hansard of 17 October 1985 as having said:

Parliament does not have the responsibility for public expenditure; the Executive Government does.

He also said:

I do not accept the proposition, which was accepted by the previous Government, that the amount of money appropriated for Parliament is a matter for the Parliament to determine. It is a matter for the Executive to determine.

The same matter was raised by Senator Tate in a debate on the Nuclear Weapons Prohibition Bill 1985 on 7 November 1985 when he talked about the relationship between the Executive Government and the Parliament on the issue of treaties. Senator Tate said:

I believe the Government should bring legislation into this place which affirms the Parliament's adherence to the very obligations-

He was referring to various international obligations. He said that he believed that the Government `should recognise fully and not begrudgingly acknowledge the proper role of the Parliament' in that matter. He concluded by saying:

That partnership should be forged between the Parliament and the Executive and should be apparent in legislative form.

I think Senator Richardson's motion goes essentially to that-the attempt to get an agreement between the Executive and the Parliament as to the way in which Parliament's appropriations are to be handled. I believe that at this stage it can be no more than a statement of principle. I think it is important that that statement of principle be on the record. Similarly, I think there needs to be an essential affirmation which the Executive ought to accept, whether it likes the formula or not. If the Executive at any stage wishes to argue that the Parliament itself cannot behave responsibly in respect of its own funding and appropriations, it is hard to believe that any executive can maintain that any democratic institution can function responsibly in that regard.

I think the point is an important one. I think it is one which touches on the nature of parliamentary government; I think it is one which has been well encapsulated in the terms of Senator Richardson's motion. It is not quite the same formula as was set out in the original recommendation of Senate Estimates Committee A. I understand that the formula was arrived at after consultation and without the rancour which might otherwise have occurred. Hopefully all honourable senators, or at least the overwhelming majority of them, will be able to agree upon this decision. I believe that Senator Richardson and Estimates Committee A are to be commended for bringing forward a motion of this type. I hope that the motion will be passed by the Committee.

Sitting suspended from 6.29 to 8 p.m.