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Telstra Bill conflicts with 'separation of powers'

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Senators Meg Lees & Vicki Bourne

Australian Democrats

Parliamentary Leader & Communications spokesperson


7 July , 1998



Telstra Bill conflicts with ‘Separation of Powers’


The Australian Democrats have received advice that the Tels tra Sale Bill conflicts with the constitutional separation of powers because it leaves the decision of whether the bill is proclaimed into law in the hands of the Executive rather than the Parliament.


This advice, received from the Senate’s Clerk Assistant Procedures, Dr Rosemary Laing, points to the Senate’s long held concerns that open-ended proclamation dates undermine the constitutional doctrine of the separation of powers.


The separation of powers doctrine says that the Parliament makes laws and the Executive (i.e. the Cabinet) administers them. The Telstra Bill, however, leaves the decision as to whether the bill is proclaimed into law in the hands of the Cabinet rather than the Parliament. This is in clear contravention of the doctrine of the separation of powers.


Democrats Leader, Senator Meg Lees, said this approach erodes the powers of the Parliament, particularly the Senate.


“The Constitution clearly says that Parliament makes laws and the Executive implements them,” said Senator Lees.


For a decade now, reflecting Senate concerns, legal drafters have been instructed that proclamations of laws should occur no later than six months after Royal Assent.


“The Telstra Bill, which provides for a delay of at least seven months, should be rejected by the Senate because the delay exceeds long standing convention and Constitutional best practice,” said Senator Lees.


Senator Vicki Bourne, Democrats Spokesperson on Communication, said the Government agreed to a different approach on late proclamation dates in the Digital TV bill passed only last week. That bill provides for a proclamation date no earlier than July 1 1999 but is to be approved by a resolution of both Houses of Parliament.


“If the Senate passes the Telstra Bill with the proclamation date provisions intact, it is voting itself into irrelevancy , ” Senator Bourne said.


The Democrats have provided a copy of the advice to the Senate’s two longest serving Senators, Independent senators Brian Harradine and Mal Colston, urging them to reject a bill which so clearly undermines the role of the Senate and the doctrine of separation of powers.


For further information: John Schumann 0419 867876

Senator Meg Lees 02-6277 3991

Senator Vicki Bourne 02-6277 3820








6 July, 1998


Senator V Bourne

Democrat Whip

SG 113

Parliament House


Attention: John Cherry/Joanne Yates


Dear Senator Bourne


You have asked for advice on the commencement provisions of the Telstra (Transition to Full Priv ate Ownership) BW 1998.


Clause 2 of the Bill provides for Schedule 2, which amends the Telstra Corporation Act 1991 to enable the Commonwealth to sell its remaining two thirds interest, to commence on a day to be fixed by proclamation. Subclause 2(8) provides that the proclamation must not be made before the return of the writs for the first general election for the House of Representatives after 15 March 1998 (the date of the Government's announcement of its decision to sell the remaining two thirds of Telstra). There is no particular upper limit set with regard to the proclamation date. In other words, the Bill does not provide that the proclamation must have occurred by a certain date or within a certain period. These provisions effectively provide for the open-ended commencement of the major policy decision contained in the Bill.


There has long been parliamentary disquiet about this kind of open-ended commencement provision because it hands a blank cheque to the executive to determine whether the legislation passed by the Parliament is actually going to come into effect. In 1988, the Senate passed a resolution requiring the government to table a list of Acts or provisions of Acts which remained unproclaimed, together with explanations for the failure to proclaim them and a timetable for their expected operation. Following the tabling of this document in November 1988, the Senate agreed to a permanent return to order, which has now been incorporated into standing order 139, and requires the government to table, twice a year, the details of all unproclaimed provisions of Acts together with reasons for non-proclamation. The latest such list was tabled in the Senate on Wednesday, 27 May 1998.


In response to the Senate's actions in 1988, amendments were made to the government's legislation handbook requiring instructing departments to include a specific date by which proclamation must have occurred together with a further provision for the Act to commence automatically on that date or, alternatively, be deemed to have been repealed. A drafting instruction (number 2 of 1989) was issued by the Office of Parliamentary Counsel giving effect to the new policy. That instruction remains current and provides, in part, as follows:


3. As a general rule, a restriction should be placed on the time within which an Act should be proclaimed (for simplicity I refer only to an Act, but this includes a provision or provisions of an Act). The commencement clause s hould fix either a period, or a date, after Royal Assent, (I call the end of this period, or this date, as the case may be, the "fixed time"). This is to be accompanied by either:


(a) a provision that the Act commences at the fixed time if it has not alre ady commenced by Proclamation; or


(b) a provision that the Act shall be taken to be repealed at the fixed time if the Proclamation has not been made by that time.


4. Preferably, if a period after Royal Assent is chosen, it should not be longer than 6 mon ths. If it is longer, Departments should explain the reason for this in the Explanatory Memorandum. On the other hand, if the date option is chosen., PM&C do not wish at this stage to restrict the discretion of the instructing Department to choose the date.


The drafting instruction also made it clear that clauses providing for commencement on proclamation which did not include commencement safeguards should be used only in unusual circumstances where the commencement depended on an event of uncertain timin g. In Alert Digest No 5 of 1998 the Scrutiny of Bills Committee accepted that the taking up of shares in the open market was such an event of uncertain timing and therefore made no further comment on the provisions in the Telstra (Transition to Full Private Ownership) Bill 1998.


There are several consequences arising from the open-ended commencement provisions in relation to Schedule 2 of the Telstra (Transition to Full Private Ownership) Bill 1998. The most significant is that although both Houses may ultimately agree on the terms of the Bill and it is submitted for Royal Assent, the operative parts may never become law if the government so determines. While the clause is drafted in such a way as to give discretion to an incoming government after the next election not to be bound by the policy of a previous government, the same discretion is available should the current government be returned. Whatever the political exigencies, the effect of such a provision is to undercut the legislative function of the Parliament and abrogate the principle that the executive is accountable to the Parliament.


During debate on the Television Broadcasting Services (Digital Conversion) Bill 1998, the Government moved amendments which contained a provision that handed the initiative back to the Parliament where provisions of that Bill where drafted to commence on a date to be fixed by proclamation. These amendments provided that a proclamation could not be made to bring the provisions into effect before a resolution had been passed by each House of the Parliament. This kind of provision may have some potential in the context of the Telstra (Transition to Full Private Ownership) Bill 1998.


A number of articles on the topic of legislation by proclamation have been written, principally by the Deputy Clerk of the Senate, Anne Lynch. I can provide you with copies of these if you are interested.


Please let me know if I can be of any further assistance.


Yours sincerely


Rosemary Laing

Clerk Assistant (Procedure)


Telephone: (02) 6277 3380

Fax: (02) 6277 8289