49TH PRESIDING OFFICERS AND CLERKS CONFERENCE WELLINGTON 8 – 13 JULY 2018

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Paper to be presented by Neil Laurie Clerk of the Parliament,

Moving towards the entrenchment of parliamentary committees

Moving towards the entrenchment of parliamentary committees

2018 celebrates the 30th anniversary of the re-introduction of parliamentary committees in the Queensland Parliament. Committees went into abeyance in the Queensland Parliament from 1922 when the Legislative Council was abolished and it became unicameral until 1988 with the introduction of a Public Works Committee. The Committee system was overhauled in 2011 into a comprehensive, modern system. Further reforms in the 55th Parliament have moved Queensland closer to entrenching committees as an integral part of the parliamentary process; especially as regards the consideration of legislation.

Some history re the Queensland committee system

From its commencement in 1860 the Queensland Parliament had a very active committee system. Bills were regularly considered by committees and other issues, such as state development projects, were the subject of extensive inquiry.1

From the commencement of the 20th century, coinciding with the rise of political parties, committees went into decline. Only a handful of select committees (excluding domestic committees) were established after 1904 (apart from a brief period of increased committee use from 1912 to 1914, during the 19th Parliament). There were no select committees established after 1915.

In 1922 the Legislative Council was abolished. This was also the effect death-knell for committees. Apart from domestic committees (the Library Committee, Refreshment Room Committee, Privileges Committee and Papers Committee etc.) there was not a single select committee established between 1915 and 1974. A Subordinate Legislation Committee was established in 1975 (and continued in successive parliaments) and there was an Education Committee during 1978 and 1979.

It is noted that this period saw long term governments from both sides of the political divide. Governments of both persuasions did not want committees.

In 1983 the Government (National Party and Liberal Party) split. One of the significant issues underlying the split was attempts by a reform group (“ginger group”) within the Liberal Party to establish a Public Accounts Committee (PAC).

On 4 August 1983 Ian Prentice MP moved a motion to bring forward debate on motions to establish a PAC. While the establishment of the committee had been approved by resolution at a Liberal Party convention, it was strongly opposed by then Premier Hon Jo Bjelke-Petersen MP. Liberal Party Leader and Deputy Premier, Hon Lew Edwards MP did not want a PAC voted on out of a concern that the vote would damage the coalition. Hon Terry White MP, a Liberal minister of the government, crossed the floor to vote against the government in favour of debating the establishment of a PAC and was

1 For a full history see Committee System Review Committee Report: Review of the Queensland Parliamentary Committee System December 2010 http://www.parliament.qld.gov.au/documents/committees/CSRC/2010/QldParlCtteeSystemReview/rpt-15Dec2010.pdf Particularly Appendix F – Historical list of committees of the Queensland parliament

Moving towards the entrenchment of parliamentary committees Page 1 subsequently sacked by Sir Llewellyn Edwards. Soon after White successfully contested the Liberal Party leadership. Despite White’s appointment Bjelke-Petersen refused to work with him on the grounds of his previous record of disloyalty to the government. An early election was called in October 1983 after which the Nationals (with the aid of some liberal defectors) governed in their own right.

Government did not want parliamentary committees.

The modern committee system in Queensland has its origins in the matters uncovered by the (1978-1989). For those unfamiliar, the Fitzgerald Inquiry started as an inquiry into police misconduct (essentially whether police were involved in protecting illegal prostitution, gambling etc.) and ended in reviewing the accountability of government generally. The Fitzgerald Report was tabled in July 1989. In relation to parliamentary committees, the report stated:

“There is a need to consider introducing a comprehensive system of Parliamentary Committees to enhance the ability of Parliament to monitor the efficiency of Government.”2

The first PAC was actually established before the before the Fitzgerald Report was tabled, the Public Accounts Committee Act 1988 being introduced by Hon Mike Ahern, the Premier who succeeded Hon Jo Bjelke-Petersen, and was Assented to on 18 November 1988. The establishment of this committee essentially marks the commencement of the development of the modern parliamentary committee system.

From 1988 to 1995 there were a number of “function-oriented” committees created or continued:

• Public Accounts Committee • Public Works Committee • Parliamentary Criminal Justice Committee/Parliamentary Crime and Misconduct Committee • Parliamentary Committee for Electoral and Administrative Review / Legal, Constitutional, Administrative Review Committee • Travelsafe Committee • Scrutiny of Legislation Committee • Members’ Ethics and Parliamentary Privileges Committee • Standing Orders Committee

However, it cannot be said that at this time the Fitzgerald Report’s vision for a “comprehensive system of committees” had been fulfilled. There was no committee system that covered the field of Government activity. For example, there was no ‘health committee’ or ‘education committee’, yet health and education accounted for well over 50% of government budget expenditure. Indeed, the Health Systems Review in September 2005 proposed that a parliamentary committee established under the Parliament of Queensland Act 2001, oversee the operation of a Health Commission.3These recommendations were not followed by government.

2 Fitzgerald report, page 371. 3 Queensland Health Systems Review tabled September 2005 http://www.parliament.qld.gov.au/documents/tableoffice/tabledpapers/2005/5105t4447.pdf

Moving towards the entrenchment of parliamentary committees Page 2 Queensland still failed international benchmarks for democracy in relation to its committee and legislative system. For example, the Commonwealth Parliamentary Associations Benchmarks included:

• 3.2.1 There shall be a presumption that the Legislature will refer legislation to a committee, and any exceptions must be transparent, narrowly-defined, and extraordinary in nature. • 3.2.2 Committees shall scrutinise legislation referred to them and have the power to recommend amendments or amend the legislation.

The reality is that the committee system that was in operation until 2011, whilst doing some valuable inquiries, had very little connection with the Assembly. For example, in the decade between 2000 and 2010:

• There were 502 committee reports • There were 20 referrals by House to committees • Only 4 bills were scrutinised by committee beyond “technical scrutiny” by the Scrutiny of Legislation Committee (Fundamental Legislative Principles “FLPs”) • There was only 45 minutes of formal consideration in the Legislative Assembly of 3 of 191 “inquiry reports” (less than 2%)

In 2009 some new select committees were established that moved Queensland closer to a more comprehensive committee system. Four select committees were established: – Economic Development Committee – Environment and Resources Committee – Law, Justice and Safety Committee – Social Development Committee

In 2009, in response to some integrity issues regarding lobbyists and a former Minister, the Premier’s Integrity and Accountability Review was established. There were many submissions to this review that called for the reintroduction of Upper House. There were other submissions that called for a new committee system. As a result, in 2010 the Parliamentary Committee System Review Committee was established. That committee recommended a new committee system that became the foundation for Queensland’s current portfolio based committee system. 4

Former legislative system

It is now necessary to digress to talk about the former legislative system in Queensland.

Prior to 2011, the process of considering legislation in the Legislative Assembly was antiquated and inadequate. Essentially the steps in considering bill in the Legislative Assembly were as follows:

1. Bills were introduced and underwent their First Reading (no debate) 2. The Minister would then move the Second Reading, making their introductory speech and immediately moving the adjournment of debate 3. A bill could not, absent an urgency order, be further debated for seven calendar days

4 Committee System Review Committee Report: Review of the Queensland Parliamentary Committee System December 2010 http://www.parliament.qld.gov.au/documents/committees/CSRC/2010/QldParlCtteeSystemReview/rpt-15Dec2010.pdf Moving towards the entrenchment of parliamentary committees Page 3 4. The second reading debate would then recommence. Given the limited time available between the introduction of the bill and the second reading, and the overall quantity of legislation, it was hardly surprising that members generally were not as across the detail of the bill as they should have been. Much fell to the Shadow Opposition Spokesperson to talk to stakeholders and get a grasp on the policy inherent in the bill. There was no transparency in the system, stakeholders spoke to Shadow Ministers, Ministers or the relevant Department in the ‘back rooms’. Second reading debates consisted of long speeches, often irrelevant to the bill. In reality Bills were largely used by members as vehicles for talking about local issues. 5. Following the second reading there was Consideration in Detail where the bill was considered clause by clause. It was not unusual at this stage for both the Opposition and relevant Minister to put forward amendments. 6. The third Reading. 7. Title agreed to.

The above legislative process produced poor outcomes. There was no formal, detailed examination and consultation within a formal parliamentary process. The public, stakeholders and peak groups were left to speak unilaterally to Government and Opposition in short timeframes. There was limited transparency and consideration of alternative policy. Bills which had been in developed over months or years in a department were passed after only weeks or days in Parliament. Parliament was essentially seen as “rubber stamp”.

Often bills would be passed and within a few months an amending bill would be introduced to fix errors or issues not picked up in its original passage.

The 2011 Reforms

The Committee System Review Committee (CSRC) recommended5 that a new “portfolio committee system” be created and that the new committees have the ability to report on all aspects of government activities, including investigating and reporting on events, incidents and operational matters of the government.

The CSRC recommended that all legislation go to a committee for consideration and that members of the public gain an unprecedented opportunity to comment on government legislation in a formal parliamentary process before it is debated and voted on in the parliament.

The CSRC hoped that the process would allow members of parliament to better understand the implications of legislation and focus more of their attention on their role as legislators. The Committee emphasised that hearings of the committees be open and broadcast so that interested members of the public have the opportunity to become part of the process.

Currently there are seven portfolio committees and three other statutory committees.

5 http://www.parliament.qld.gov.au/documents/committees/CSRC/2010/QldParlCtteeSystemReview/rpt- 15Dec2010.pdf

Moving towards the entrenchment of parliamentary committees Page 4 The Committee of the Legislative Assembly (CLA) has responsibility for: the ethical conduct of members by setting the Code of Ethical Standards for members;6 reviewing the standing rules and orders about the conduct of business by, and the practices and the procedures of, the Assembly and its committees; any other matters for which the committee is given responsibility under the standing rules and orders; and any matter referred to the committee by the Speaker.

Initially and controversially the CLA had assumed many of the management responsibilities of the Speaker. The management responsibilities of the Speaker over the precinct and the Parliamentary Service have now been restored. Now, Speakers tend to use the CLA as a consultative body for decisions that may affect members. Today, the Speaker and the CLA work cooperatively. It is for this reason viewed (technically erroneously) by Members as a “Board of Management”; but in reality the Speaker decides its agenda and makes final decisions regarding administrative matters.

The Parliamentary Crime and Corruption Committee (PCCC) is established under the Crime and Corruption Act 2001. The committee is a continuation of the Parliamentary Crime and Misconduct Committee (PCMC) which was established under the Crime and Misconduct Act 2001 and the Parliamentary Criminal Justice Committee (PCJC) which was established under the now repealed Criminal Justice Act 1989. The principal functions of the committee are:

 to monitor and review the performance of the functions, and the structure of the Crime and Corruption Commission (CCC or the Commission);  to report to Parliament on matters relevant to the Commission; and  to participate in the appointment of Commissioners and the Chief Executive Officer of the Commission.

The Ethics Committee’s areas of responsibility is to deal with complaints about the ethical conduct of particular members and deal with alleged breaches of parliamentary privilege by members of the Assembly and other persons.

6 Under section 104C(2) of the Parliament of Queensland Act 2001, a complaint about a particular member not complying with the code of ethical conduct for members may be considered only by the Assembly or the Ethics Committee. Moving towards the entrenchment of parliamentary committees Page 5

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Currently there are seven portfolio committees whose operation is set out in the Parliament of Queensland Act 2001, but whose area of responsibility are set out in a schedule in Standing Orders agreed to each parliament.

The functions of portfolio committees are contained in Chapter 5, Part 3 of the Parliament of Queensland Act 2001 and Standing Orders. For their portfolio areas each Committee has the function to consider and report on the following: • Legislation – Both Bills and subordinate legislation – Technical scrutiny and scrutiny of policy • Public accounts • Public works • Oversight of independent bodies • Estimates (Appropriation Bills) • Other matters referred by the Parliament • Matters within its portfolio area that the committee self-refers

There are varying rules apply regarding the membership (composition) and operation (quorum, voting) of portfolio committees. Essentially the composition and rules are determined by a formulae in the Parliament of Queensland Act 2001 and the determinative factor under the formulae is the number of non-Government members in Legislative Assembly.

The current rules for portfolio committees are: • 6 Members:

Moving towards the entrenchment of parliamentary committees Page 7 – 3 Government; 3 Non-Government • Chair nominated by the Leader of the House • A quorum is 4 • If a tied vote, Chair has a casting vote

The rules for the last Parliament (the 55th Parliament) were the same, except that the Chair did not have a casting vote.

An unexpected and curious outcome since the introduction of the portfolio committee system is the propensity to refer policy matters to portfolios committees by the Assembly (moved by the government). Inquiries have included:

• The long-term financial sustainability of local government • How to improve health and safety outcomes for combat sports contestants in high risk professional and amateur contests in Queensland • Laws governing termination of pregnancy in Queensland • Hendra virus (HeV) EquiVac® vaccine and its use by veterinary surgeons in Queensland • The impacts of invasive plants (weeds) and their control in Queensland

The Assembly has also continued to establish Select Committees as required. For example, last Parliament a Select Committee to inquiry into the re-emergence of Coal Workers’ Pneumoconiosis amongst coal mine workers in Queensland was established.

Goals of 2011 Reforms

The overall vision of the 2011 reforms could be described as attempting to improve the performance of the Queensland Parliament by using committees to enhance its various functions (legislation, scrutiny et..).

The goals of the 2011 reforms can, in my opinion, be summarised as follows:

 To ensure a better informed Parliament and individual Members  To ensure better engagement with community/stakeholders in a “formal” process  To ensure a more vigorous legislative process by the Parliament where Bills are tested and ensure better legislative outcomes overall.

What remains to be considered is whether the goals have been achieved and what issues are remaining.

Have the goals been achieved?

Activity since 2011 Reforms

There can be no doubt that the 2011 reforms have increased the overall activity of committees.

The number of public briefings, public hearings and private hearings of all parliamentary committees is approximately six to seven times the activity prior to the reforms, as demonstrated by the table below:

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2009-10 2010-11 2011-12* 2012-13 2013-14 2014-15 2015-16 2016-17

42 44 121 195 212 183 307 338 * New committee system commenced in August 2011

Engagement since the 2011 Reforms

There can also be no doubt that the 2011 reforms have increased the overall engagement between the parliament, the public service, the public and stakeholders.

A total of 3,324 people appeared at portfolio committee hearings during the 54th Parliament*: • 1,727 public servants • 661 representatives of peak organisations • 580 members of other groups • 356 individual members of the public

Persons appearing at portfolio committee hearings and briefings during the 55th Parliament (March 2015 to September 2017) was as follows:

 1603 public servants  1664 representatives of organisations  726 individual members of the public

Outcomes – Bills

Activity is one thing, outcomes another. There is evidence that the Government and the Legislative Assembly are responding to the legislative scrutiny undertaken by the portfolio committees. Bills amended as a result of committee recommendations during the 54th Parliament (May 2012 – January 2015) are set out in the following table:

Bills examined and Legislative Legislative Percentage accepted debated Amendments Amendments recommended accepted 157 53 308 162

Other Other Percentage accepted recommendations recommendations made accepted 83 242 202

Bills amended as a result of committee recommendations during the 55th Parliament (for the period March 2015 to September 2017) are set out in the following table:

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Bills examined and Legislative Legislative Percentage accepted debated Amendments Amendments recommended accepted 135 86 130 112

Other Other Percentage accepted recommendations recommendations made accepted 86 171 147

There is observable evidence that there are less “amending bills” being introduced to fix errors or oversights in the original bill.

Outcomes – other inquiries

As outlined above, the Legislative Assembly is referring other inquires to the portfolio committees. The statistics for the outcomes of those inquiries are also encouraging. The results of other inquiries conducted during the 54th Parliament are set out in the following table:

Total completed Legislative Legislative Percentage accepted inquiries Amendments Amendments recommended accepted 11 57 72 41

Other Other Percentage accepted recommendations recommendations made accepted 78 275 215

The results of other inquiries conducted during the 55th Parliament (March 2015 to September 2017) are set out in the following table:

Total completed Legislative Legislative Percentage accepted inquiries Amendments Amendments recommended accepted 12 87 15 13

Other Other Percentage accepted recommendations recommendations made accepted 92 64 59

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Timeframes for Bills

The time available for the proper scrutiny of Bills by portfolio committees has been an issue since their introduction.

The table below indicates the average duration (weeks) of committee inquiries for the 54th Parliament and the 55th Parliament (from March 2015 to September 2017) have improved:

Total completed Government Bills Private Members Bills Other Inquiries inquiries

150 (147)

Average duration Average duration Average duration (weeks) (weeks) (weeks) 8.5 25.4 32.4 (9.2) (22.1) (22.7)

I submit that the ideal referral period for bills is 12 weeks. This is a timeframe that would allow for stakeholders to prepare properly formulated submissions and the committee to undertake briefings, hearings and report.

2016 reforms – a step towards entrenching committees

On 19 March 2016 Queenslanders voted in favour of fixed four-year terms for the Legislative Assembly.7 This was a historic result, being the first state referendum question to have been supported in Queensland since 1910.

The four-year term proposal had been developed during an inquiry by one of the portfolio committees, the Finance and Administration Committee (FAC).8 The existence and extent of the parliament’s committee system was an issue raised during the Finance and Administration Committee’s inquiry into four-year terms and the fixed term and referendum bills.

As a result of the FAC’s inquiry report, the Legislative Assembly referred to the Committee of the Legislative Assembly an inquiry into the parliament’s committee system and to further consider the FAC’s recommendation to entrench elements of the committee system.

7 Queenslanders supported the Constitution (Fixed Term Parliament) Amendment Bill 2015 previously passed by the Legislative Assembly but which could not receive Assent until supported in a referendum 8 Inquiry into the introduction of four year terms for the Queensland Parliament, including consideration of Constitution (Fixed Term Parliament) Amendment Bill 2015 and Constitution (Fixed Term Parliament) Referendum Bill 2015, Report No. 16, 55th Parliament, Finance and Administration Committee, November 2015 http://www.parliament.qld.gov.au/documents/committees/FAC/2015/I4-Intro4yearterms/I4-rpt-016-9Nov2015.pdf

Moving towards the entrenchment of parliamentary committees Page 11 The CLA’s report on this inquiry, tabled in February 2016,9 contained a series of recommendations about the parliament’s committee system. The report was bipartisan with government, opposition, Independent and cross bench members of the CLA all agreeing on the recommendations.

On 21 April 2016 the Premier, Hon Anastasia Palaszscuk introduced the Constitution of Queensland and Other Legislation Amendment Bill 2016. The bill sought to statutorily recognise the ‘core matters’ of the parliamentary committee system in the Constitution of Queensland 2001 (the Constitution); and provide that the Parliament’s portfolio committees are able to initiate inquiries within their area of responsibility on their own motion.

The Bill amended the Constitution to provide that:

• The Legislative Assembly must at the commencement of every session establish at least six portfolio committees which collectively cover all areas of government activity; • every Bill introduced into the Assembly must be referred to a committee for a minimum review period of six weeks, but that the Assembly can declare a Bill urgent by ordinary majority under the Standing Rules and Orders of the Legislative Assembly; and • the annual Appropriation Bills must be subject to the budget estimates process.

The Bill also entrenched the Constitution, providing that it can no longer be amended by a bill passed without an absolute majority of members.

The Premier in introducing the bill stated:

Queensland’s parliamentary committee system has been an evolutionary process since the time of the Fitzgerald inquiry in the late 1980s. Indeed in his inquiry report Mr Fitzgerald outlined the need to consider introducing a comprehensive system of parliamentary committees in Queensland to enhance the ability of parliament to monitor the efficiency of the government. Mr Fitzgerald went on to say that ‘the committees could examine the expenditure and administration of government departments and associated public bodies, as well as the policies they administer’ and ‘the useful roles they can play are varied and diverse’.

Queensland’s parliamentary committee system has evolved significantly since the Fitzgerald report. This has been especially the case since the reforms initiated in 2011, which have seen the vast majority of bills, with some notable exceptions under the former government, referred to committees for inquiry. In giving their support for fixed four-year terms, Queenslanders, in my view, rightly expect that there should be more certainty around the continued existence of the parliament’s powers, through its committee system, to scrutinise government activity and to hold the government of the day to account.10

9 Report No. 17 of the Committee of the Legislative Assembly titled Review of the Parliamentary Committee System. http://www.parliament.qld.gov.au/Documents/TableOffice/TabledPapers/2016/5516T248.pdf 10 Record of Proceedings http://www.parliament.qld.gov.au/documents/tableOffice/BillMaterial/160421/Constitution.pdf

Moving towards the entrenchment of parliamentary committees Page 12 Conclusion – overall outcomes and the work to do

It is submitted that the goals of the 2011 reforms have largely been successful. There can be no doubt that members are better informed, which is reflected in the debate in the Legislative Assembly. There is no doubt a more transparent and engaging decision making process for Queenslanders, including public servants. In some ways the committees are bringing the community and the Queensland Parliament closer.

The activity and outcomes detailed above clearly indicate the committees are undertaking the work expected and the Legislative Assembly is responding to the committees’ recommendations.

Significantly, the amendments in 2016 have finally moved towards a legal entrenchment of parliamentary committees. Perhaps more importantly, the work of the committees since 2011 and the large change-over in the membership since 2011, at both the 2012 and 2015 elections, have resulted in a “cultural” entrenchment of committees.

But we cannot rest on our laurels, work remains.

Unfortunately, the Constitutional entrenchment of portfolio committee review of legislation for at least six weeks has become a “default”, rather than a minimum. There have been examples where bills have been referred to portfolio committees for six weeks, only for those bills to languish on their return to the notice paper for more than six months. It is submitted that the ideal referral period for bills is 12 weeks.

An accidental victim to the legislative and financial roles of the portfolio committees and the surprising number of policy referrals has been neglect of the public accounts and public works powers. The frequency of bill inquiry referrals in the period after the portfolio committee system was introduced made it difficult for the portfolio committees to find the time to conduct public accounts and public works inquiries. Now I am concerned that the paucity of such inquiries has engendered an avoidance of them by the committees. At the commencement of the system, I used to say “we do not have a public accounts committee, we have seven public accounts committees”. I made similar comments re public works committees. Now I do not comment. We need to better on this matter.

Finally, the ability of the Assembly to set aside the requirement of committee examination of bills (urgent bills) needs to be caveated by a requirement that it needs more than a simple majority. If a bill is truly urgent, not simply politically expedient, then the government should need the support of more than its own members.

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