Harry Jenkins speech to Australasian Parliament Group on the Executive versus the Parliament: who wins?

Saturday, 8 October 2011

Australasian Study of Parliament Group
2011 National Conference
Melbourne, 6-8 October 2011

KEYNOTE ADDRESS

THE EXECUTIVE VERSUS THE PARLIAMENT: WHO WINS?

Mr Harry Jenkins MP
Speaker of the House of Representatives

The theme for the conference on which I have been asked to provide one of the keynote addresses is very timely.

The Federal election in 2010 resulted in the first hung parliament in the House of Representatives in seventy years. Following a period of negotiation with a number of non-aligned members, the Australian Labor Party emerged with the ability to form government with cross bench members on key issues such as confidence and supply. The agreements made by the non-aligned members with the Government included a range of matters, but, for the purpose of this address, importantly included undertakings about parliamentary reform, particularly reforms in the House of Representatives.

In making my remarks, it is worth reminding ourselves that the Australian Parliament comprises both the upper and lower Houses as we are a bicameral system. Perhaps it is time that we forgot about the rivalries between the Houses and recognise that legislative and parliamentary processes involve both Houses. However, as the agreements I have referred to essentially were about reforms in the House of Representatives, although there were some broader changes, it is the House of Representatives on which I will focus my comments.

It is now more than twelve months since the minority Labor government was formed and it is timely to assess how minority government has affected the balance between the Executive and the Parliament and whether it has resulted in the Executive being more accountable.

It would be fair to say that the views of many would be that the long period of majority government control over the House of Representatives had tipped the balance strongly towards executive government as opposed to the Parliament. Important reasons for this were that the government was able to freely exercise its authority within the House of Representatives through its majority or on the floor of the House, and, at least in relation to Question Time, the rules were weighted to advantage the government and government had the wealth of resources to be able to dominate the Parliament.

The agreement for parliamentary reform that was a critical element of the process of negotiation to form minority government had as a key objective to shift this balance more towards individual members and the Parliament. To quote from the agreement:
The principles behind this document are twofold; to confirm 150 local MPs (and by extension their communities) as the foundation blocks of our Australian system of democracy, and increasing the authority of the Parliament in its relationship with the Executive.

In addition, the agreement recognised that cultural change on the part of members and executive government would be necessary to make the reforms proposed by the agreement work. As I will note, this aspect of cultural change is fundamental, as mere changes to the rules will not of themselves result in significant change.

I wish to discuss key aspects of the reform agreement which have been implemented and offer a preliminary view on the impact these have had on the continuing struggle between the Executive and the Parliament.

Before discussing the key elements of the reform agreement, I make the obvious point that the fact that the Government is not guaranteed the majority support of the House on matters other than supply and confidence in itself shifts the balance away from the Executive. The Government received an early salutary lesson in that it was defeated in the first division that was held in this Parliament. While this was in relation to a relatively minor matter to do with changes to the standing orders, it provided a very early indication that the Government would not win every non-conscience vote in the House as it had done almost without exception since the 1960s. Nevertheless, the Government has not, to date, suffered a defeat on any significant stage of its legislative program, although there is evidence it has had to negotiate changes to have its legislation passed. Similarly, on other matters on which the Government wishes to obtain support, it also needs to negotiate to achieve an outcome, inevitably limiting the ability of the Executive to set its own agenda.

Turning to the parliamentary reform agreement, the aspects of the implementation of the agreement I propose to discuss are:

- the role of the Speaker;
- Question Time;
- Private Members’ Business;
- the role of committees; and
- the role of the Appropriations and Administration Committee.

Firstly, the agreement envisaged a more independent Speaker. I will not enter into the discussions that occurred at the time about the potential pairing of the Speaker for divisions as a way of achieving a more independent Speaker and the implications of this for the constitutional provisions that the Speaker only has a casting vote. As it transpired, no pairing arrangements were agreed or implemented.

On a minor matter, the agreement stated that the Speaker not attend party meetings. I do not attend party meetings.

The agreement referred to allowing the ‘Speaker ... to rule with a firm hand as debate tests the boundaries of the standing orders on the floor’. Various aspects of the agreement proposed the Speaker taking a stronger role in Question Time in enforcing the standing orders on both questions and answers. I will discuss Question Time shortly.

Minority government certainly has been a challenging time for the Speaker. As the issues are strongly debated between the two sides and with the numbers on any matter very tight, I am challenged to ensure that all members have the opportunity to be able to present their case. More than ever, decisions made by the House can come down to the arguments that are made by members to persuade each other in debate and it is essential that all members are treated fairly and can contribute effectively.

With the numbers so close, I have been required to give a casting vote four times so far. I have followed carefully the key principles that have been developed in the United Kingdom House of Commons for how the Speaker should exercise the casting vote. These principles are in accordance with long standing House of Representatives practice. On each occasion I have exercised the vote, I have explained my rationale for the way I have voted. Exercising the casting vote using those principles has been an important in demonstrating the independence of the Speaker from the political issues.

Turning to Question Time, it has long been the centrepiece of the sitting day and is seen as one of the central mechanisms available to the House to hold the Executive to account. Many, however, have suggested that Question Time has become less effective as an accountability mechanism as it has deteriorated into an exercise in political point scoring between the major protagonists.

Question Time was the subject of a number of changes flowing from the reform agreement. The major changes included:

- the imposition of time limits both on questions and answers;
- the addition of a provision that answers now must be ‘directly’ relevant to the question and not just relevant;
- a limit of one point of order on relevance for each question; and
- a provision for the Leader of the Opposition or delegate to ask one supplementary question each Question Time.

There were those references I made earlier to the Speaker taking a stronger role in enforcing the rules.

There is no doubt the changes have resulted in Question Time proceeding more efficiently. The House Procedure Committee has noted this, referring to fewer points of order and shorter answers. However, the Procedure Committee left open whether Question Time had become more effective. In my view, changing Question Time is about much more than changing the standing orders, although such changes can assist. Instead, as I have said to the House, there will need to be a change of culture in the whole House to bring about the type of Question Time which many outside would like to see.

In recent weeks I have embarked on an endeavour to see if this culture can be changed by tightening the long standing interpretation of the standing orders relating to questions. By being tougher on questions and having them more tightly phrased, I consider it enables me to be tougher on answers, particularly avoiding the introduction of argument. As a result I have been able to enforce the relevancy rule more closely on the answers given by Ministers. It is much too early to say whether this is making a significant difference, although some tell me that they see some positive signs.

If both questions and answers can be direct and concise and not involve excessive debate, then I believe that Question Time can be a much more effective accountability mechanism.

My intention is to endeavour to bring Question Time back to its core role as an accountability mechanism for the House in relation to the Executive, as was proposed in the agreement for parliamentary reform. It is very much a work in progress.

Turning from Question Time, one of the more positive aspects of the parliamentary reforms which have accompanied minority government is the emphasis given to private members’ business. This has provided a genuine and undoubted shift in the balance between Parliament and the Executive and has given, as the parliamentary reform agreement envisaged, much more opportunity and power to private members.

The changes have seen:

- considerably more time devoted to debate of private members’ business;
- as a consequence of the additional time available, more private members’ bills and resolutions coming forward for debate;
- private members’ business items able to be voted on by the House, meaning that private members’ bills or resolutions can have passage through the House; and
- a Selection Committee, chaired by the Speaker, with control over the conduct of private members’ business.

The Selection Committee plays a key role in relation to private members’ business. The committee:

- selects items of private members’ business to be debated;
- allocates overall times for debate and the speaking times of individual members; and
- recommends private members’ business items to be voted on.

Thus the control over private members’ business is in the hands of a committee made up of private members and chaired by the Speaker.

The commitment for matters to be voted on is perhaps the most significant change to private members’ business. No longer do private members’ matters languish on the Notice Paper, but they are brought forward regularly on a sitting Thursday morning for a vote in government business time. This period has become one of the most interesting and eagerly awaited periods of the week. Considerable effort is devoted by private members to this period as they seek to obtain support for their proposals. It is a particularly dynamic period as amendments are proposed to make bills and resolutions acceptable to majority support. It is an unpredictable period with considerable uncertainty about the result on any matter.

To date, three private members’ bills have passed the House. One of these bills also has gone on to pass the Senate and become law. In addition 39 private members’ motions have passed the House. Private members now have significantly greater opportunity to have their issues put on the parliamentary agenda and have the House form a view about the matters. It has altered the ability of executive government to exercise tight control over the House’s agenda.

Committees have long been an important accountability mechanism for the House. While there may be a view that accountability has declined generally, committees have remained successful in fulfilling the parliamentary function of holding the executive to account. House committees have a strong culture of bipartisan operation and I am pleased to say that this largely has not changed with the much tighter numbers in the House. As a result, committees have continued the effective work which they have performed in earlier parliaments.

The significant changes that have been made to the operation of committees that have affected accountability include:

- the chairs of some committees, including the Joint Committee on Public Accounts and Audit, are non-government members;
- committees are able to have bills referred to them by the Selection Committee;
- there has been a strengthening of the process for government responding to committee reports; and
- resourcing of committees has been reviewed.

I will comment only on some aspects of these changes.

Increasingly the Selection Committee is referring bills to committees for advisory reports. The consideration of bills by committees has traditionally not been a major feature of the way the House has operated. The referral of more bills to committees to undertake more detailed scrutiny work is a welcome development. The process is experiencing some teething problems with some committees questioning the reasons for the reference of bills to them. However, there have been a number of substantive reports on bills presented by committees informing better the work of the House. This is an area that will develop as the process matures both in the reference of bills by the Selection Committee and the scrutiny work undertaken by committees. It will enable more legislation to be subject to detailed examination before it is considered by the House, surely an important accountability mechanism.

The process for government responses to committee reports has been strengthened by ministers being required to give to the House a statement of reasons for any delay in meeting the response time of six months (extended from three months) and answering any questions the committee may have about the statement. To date, the new process has not needed to be used, but it should ensure a more timely response to committee reports, as ministers would wish to avoid the scrutiny that a failure to respond would entail.

There has been an independent review of committee resourcing which has recommended increased resources for committees to enable them effectively to perform their accountability work. These matters will be pursued with government.

The net effect of the changes to committees I think will strengthen the already considerable capacity of the committee system to hold the Executive to account.

Finally, I wish to refer to the role of the Appropriations and Administration Committee. The committee, chaired by the Speaker, has the role of considering the estimates of funding for the Department of the House of Representatives and providing to the House and to the Minister for Finance, the estimates of amounts considered necessary for the department. I have long argued for the establishment of such a committee to provide an independent view of the adequacy of the resourcing for the Department of the House of Representatives. While it is early days in the operation of the committee, I consider that it has increased the capacity of the department to obtain appropriate resources to support the work of the House, of committees and of individual members.

In foreshadowing the remarks you are about to hear from Speaker Mickel, I should note that the passage of the Parliamentary Precincts Act 1988, which coincided with the opening of the new Parliament House, gave to the Presiding Officers responsibility for the management and control of the whole of the parliamentary precincts. In relation to the Executive wing of Parliament House specifically, an MoU was signed by the then Presiding Officers with the Minister responsible for the Ministerial wing which outlined in detail the responsibilities respectively of the Presiding Officers and the relevant Minister in relation to the Ministerial wing. I believe that these arrangements give the Presiding Officers authority to strike an effective balance between the Parliament and the Executive in relation to the control and management of the building. The new Appropriations and Administration Committee, through its oversight of the Department of Parliament Services and its responsibility to examine any major building works within the precincts, will strengthen that parliamentary oversight.

In summary, I consider the net effect of the reform arrangements that have been implemented in the House of Representatives following the formation of minority government and the fact that the government is dependent on a number of non-aligned members to have matters passed in the House has strengthened the role of the Parliament vis-a-vis the Executive. I particularly note the enhanced opportunities for private members.

However, to refer back to comments made early in this address, cultural change is a very significant factor and, inevitably, takes longer to achieve than the changes to the rules.

The fact that the Government cannot guarantee that it will win any vote on the floor of the House in itself brings about a cultural change in the way the House has been used to operating. I think the House is still coming to terms with the impact that this has on the opportunities that are available for non-executive members, and how they can best exploit these opportunities.

An interesting issue will be the extent to which any changes, both the formal ones of the standing orders and cultural change are retained once there is a reversion to majority government.

I hope that members will want to see what they may regard as worthwhile reforms sustained. In addition, in my view the level of interest in the Parliament and the strength of community expectations is such that key reforms are likely to be retained.

To conclude, I would not like to see a view that there are winners and losers as a result of the reforms that have occurred in the House. I would like to believe that the wider Australian community is the winner. The changes such as those, for example, to Question Time and private members' business present the opportunity to be of benefit to all Australians.

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