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Monday, 2 December 1985
Page: 2711

Senator COOK(8.25) —I speak as a member of Estimates Committee A who has turned a hand and attention, as have the other members of that Committee, to helping to draft and formulate the motion that Senator Richardson moved in the Committee of the Whole this evening. Senator Richardson is right about the motion. It has been broadly cast to provide a mechanism to settle disputes between the procedure of the Standing Committee on Appropriations and Staffing and the Executive. Perhaps I should say that a lot has been said in this debate in this chamber about Senator Walsh, but, ultimately, it is not Senator Walsh, the Minister for Finance, or whosoever may happen to be that Minister but rather it is the Cabinet that raises these appropriation Bills and authorises them to proceed. It is at that level that the responsibility rests.

I found the exposition of Senator Peter Baume earlier tonight, in many respects, to be a quite excellent exposition between the two alternatives. A dispute-settling procedure has been proposed by Senator Richardson. From all sides of the chamber, we have had heated agreement that such a procedure is necessary. Once that proposal was announced, honourable senators then proceeded to put their own interpretation on the meaning of the proposed procedure or to emphasise their points of view on how the procedures could be biased.

In my contribution to this debate, I want to put some points which are contrary to the general thrust of what has been put by a number of honourable senators. Intruded into the debate this afternoon and tonight have been references to what has been said in the newspapers and, from time to time, to events that were alleged to have occurred. That has been the theme of a number of speakers. I want to say of those comments that each of us has a view of the significance and importance of those events and all versions of those events, whatever they happen to be, are contested. Therefore, it does not seem to me to be helpful in this debate further to contest or argue those views; in the end, it is what is carried in this motion that is important.

I do not want to look, therefore, at the particulars but rather at the general proposition to see whether it will stand up after the current controversy is over. Therefore, first of all, it is important to put into context the circumstances in which this Estimates Committee motion has been brought forward. In doing that, I have to disagree strongly with remarks made earlier this afternoon by Senator Puplick. He put what I consider to be a quite outrageous proposition that the Presiding Officers could act independently to the Governor-General and the Governor-General could act over ministerial advice to send to this Parliament money Bills-that is, appropriation Bills. That seems to me to be a quite outrageous proposition. It seems to be a proposition that has been central to constitutional debate, at least for the last decade, in this country, and the main tide of that debate was certainly against the proposition put by Senator Puplick.

The first point I want to make is that the motion that Senator Richardson has moved does not state what Senator Puplick argued. The motion merely proposes that there be a procedure for resolving argument, but in the ultimate, if there can be no resolution of argument, it is the Executive wing of government that has the ultimate responsibility. The motion imputes to the Executive wing a responsibility in listening to the voice of the Standing Committee on Appropriations and Staffing, but it does not arrogate the responsibilities to make the final decision and to advise the Governor-General accordingly.

The second point that should be made about the remarks of Senator Puplick is that the logical extension of his proposition is that the House of Representatives or the Senate should then take responsibility for raising taxes to provide the finances needed to run the establishment. Ultimately, what has been canvassed is the view that the Executive or the Government of the day take responsibility for raising taxes but that the Parliament take responsibility for arrogating to itself whatever amount of those taxes it so deemed appropriate to spend on its own administration. I think there is an immoral centre to that proposition. The immoral centre is that if the Parliament does not raise a tax for parliamentary functions, it ought not take the responsibility for justifying the spending of those funds.

Senator Peter Baume —Does not the Parliament in fact raise the taxes on the advice of the Executive?

Senator COOK —Yes, but there is no question that it is the Government that introduces those Bills and ultimately it is the Government that carries those Bills. The exception, of course, in this chamber is that it does not always do so. That leads me to the point I was dwelling on in terms of the moral centre of this argument. It seems to me that if the parliamentary process allows for the rejection of tax measures by this chamber, it is passing strange that it should then want to take from what remains its own appropriations. It ought to have the ability-as a logical extension of the Puplick argument-to venture into the field of raising its own taxes to justify its functions.

The constitutional position has been muddied by this debate. In order to clarify it, one has to go back to the basis of the Constitution, section 56, which is the historical basis of the principle that the Government should have the right to control the introduction of legislation authorising the expenditure of public moneys. Hence section 56 envisages that the Governor-General will act on the advice of the responsible Minister or Ministers. According to that section, the advice need not be from the Minister meeting in Executive Council, since section 56 does not refer to the Governor-General in Council. The proposition that the representative of the crown should in all circumstances in this regard act on the advice of a responsible Minister or Ministers appears to have been accepted without question at the Australian Constitutional Convention debates in 1898.

I am not aware of any criticisms by writers on constitutional law or practice of the exclusive role of the government in providing advice to the Governor-General for the purposes of section 56, including advice on moneys for the Parliament's own needs. Indeed, in 1977 the then Attorney-General, Mr Ellicott, as he then was, and the Solicitor-General considered this matter. They reached the conclusion, with which the present Attorney-General (Mr Lionel Bowen) agrees, that the provision of advice to the Governor-General for the purposes of section 56 otherwise than by a Minister or Ministers would be inconsistent with basic constitutional principle and long established practice. Based on that, I do not believe that there can be any contest as to where the final constitutional authority rests.

With those remarks, I turn to the motion before us. The motion has been broadly cast and, because of that, in my view it was necessary to try to pin down the precise meanings of some sections of the motion, were there to be any dispute about them in the event of a wider dispute between the Executive and the Presiding Officers. If one consults the minutes of Estimates Committee A on Thursday, 14 November, one sees that those minutes read:

Senator Cook asked the Chairman to rule on the effect of the words in paragraph (4): `, then the Leader of the Government in the Senate, as a member of the Appropriations and Staffing Committee, be consulted', given that the Leader was bound, by virtue of his oath of office, to be responsible to the Cabinet.

The Chairman replied that it is obviously true that the Government Leader is bound by decisions of the Government's Executive, but the words had been included in order to provide a form of mediation in the event of disagreement.

My purpose in entering this debate was to draw the attention of the Senate to that view taken within the Committee, because it does inform a reading of the text of the motion. Should there at any time in the future be an argument that the carriage of this motion somehow or other clothed the Appropriations and Staffing Committee with a responsibility to direct the Leader of the Government, it will be seen that that is quite clearly not the case. The Leader of the Government is bound obviously and in the end and at all times to carry out the role of the Executive wing of government. The critical part is that part, because that is the part upon which the mediation provisions in fact operate if in fact there is a dispute. Therefore, the critical part in the event of a dispute is that which contains the procedures to resolve the dispute. In the end this motion means, in my view, that in the event of a dispute we should call upon the good will and policital acumen of the Leader of the Government in the Senate to try to resolve that dispute. But if it remains unresolved in the circumstances of the exercise of that acumen and good will, ultimately it is the Executive wing that prevails.