HON JOHN MICKEL MP SPEAKER OF THE LEGISLATIVE ASSElvIBLY OF

29 April 2011 SCf~UTINY OF iO 3 1,t,i\Y 2011

Mrs Jo-Ann Miller MP LEGISLATION COMMIIT£E Chair Scrutiny of Legislation Committee ~1'IO Parliament House George Street QLD 4000

Dear Mrs Miller

Subsequent to my appearance before the Scrutiny of Legislation Committee on 6 April 2011 as part of its consideration of the (Reform and Modernisation) Amendment Bill 2009, I provided to the committee copies of letters I had sent to the Premier outlining my concerns regarding aspects of the Committee System Review Committee's report and recommendations.

I enclose for the information of the committee a copy of a reply I have received to my letter of 3 April to the Premier. I point out to the committee that none of the matters raised in that lelter, or in the comprehensive submissions made to the government on 12 January and 27 January, has been refuted or contested in any way.

I reiterate the point made in my letter of 3 April to the Premier acknowledging that in its response to the Review Committee's report the government had supported a number of adjustments to the commiltee's recommendations. These included the retention of a separate ethics committee capability; the inclusion of the Speaker as an ex officio member of the Committee of the Legislative Assembly for the consideration of matters relating to Standing Orders; and responsibility for the management of construction and maintenance of Parliamentary buildings being transferred to the Committee of the Legislative Assembly rather than the Department of Public Works as recommended by the Review Committee. I also reiterate my further observation that while these adjustments were a step in the right direction, they did not address the fundamental problem of the makeup of the Committee of the Legislative Assembly given its intended role. (This role is confirmed and clarified in the government's response to the Review Committee's report, and was tabled in the Parliament on 9 March 2011.)

Most significantly, the very serious matter that I have repeatedly raised about the Review Committee acting blatantly outside its terms of reference in bringing forth recommendations relating to the management and administration of the Parliament remains uncontested.

I believe that the Explanatory Notes accompanying the Bill are seriously misleading in their presentation of the legislation's conception and formulation. Indeed. the Explanatory Notes confer on the Bill a degree of legitimacy that in some critically important respects can be seen as totally unwarranted.

Par!l;uncnt HO\lse, George Street, Brisbane, 4000 Phone: (07) 3406 7374 • Fax: (07) 3-/06 7308. E-mail, ~llcakcT@par!lalllcnt.qld.g(l\'.a\l • \'{lebsite: w\\w.parli:lIllwt.qld.g

Under the heading "Policy objectives and the reasons for them", the Notes accurately describe the purview of the Committee System Review Committee as being "to review the roles of parliamentary committees in evaluating and examining legislative proposals." The Notes state shortly after this: "The Report also made recommendations on the committees responsible for the operations of the Parliament, in particular, the creation of a Committee of the Legislative Assembly."

The Notes are grossly defective in that they fail to acknowledge that the "operations of the Parliament" encompass a broad range of management and administrative functions that are essentially separate and distinct from the roles of parliamentary committees in evaluating and examining legislative proposals. The Explanatory Notes can therefore be seen as overlooking or ignoring the Review Committee's failure to adhere to its terms of reference, and in so doing as ascribing to the Bill a policy objective that does not have a legitimate basis.

This 'legitimising' of improperly conceived aspects of the Bill continues in the Explanatory Notes under the heading "Achievement of policy objectives". It states that the proposed new structure of the parliamentary committee system is designed to create a parliamentary committee system thal:

• contributes to the development of best practice policy and legislation; • provides enhanced parliamentary oversight of the expenditure and activities of the government; and • maintains the standards and operational requirements of Parliament, as a legislature and as a public sector organisation.

The latter of these is primarily concerned with the management and administration of the Parliament as an entity and is plainly removed from the roles of parliamentary committees in evaluating and examining legislative proposals.

The Explanatory Notes are further seriously defective in their assertion that the Bill is consistent with the fundamental legislative principies set out in the Legislative Standards Act 1992. While it is stated that "the legislation does not adversely affect rights and liberties of, or retrospectively impose obligations on, individuals" the Notes are disturbingly silent on the extent to which the Bill conforms with Section 4(2)(b) of the Act, which requires that legislation has sufficient regard to the institution of Partiament. I find it extraordinary that the Notes do not address this dimension of the Bill - this of all Bills. I contend that the legislation seriously transgresses fundamental legislative principles in that it shows alarming disregard for the institution of Partiament by the estabtishment of a management committee for the Parliament which excludes the Speaker and which, through its membership, entrenches control of the legislature by the executive.

The Explanatory Notes are seriously misleading where they state lhat the Bill implements recommendations which resulted from consultation conducted by the Review Committee. The recommendations relating to the Committee of the Legislative Assembly and the management and administration of the Partiament were not the subject of consultation by the Review Committee. These recommendations were hatched in secret by the Review Committee, outside its terms of reference.

I canvassed these inter-related aspects of the Review Committee's report at length in my letter to the Premier of 12 January. I urge the committee to read that letter and to consider carefully the implications of the matters raised, none of which has been refuted or contested. The Committee of the Legislative Assembly, given its intended role, has been illegitimately conceived. The Explanatory Notes for the Bill now before the Scrutiny Committee, a Bill which creates the Committee of the Legislative Assembly, provide a false account of the committee's conception and in so doing improperly proVide validity and legitimacy to the committee's creation.

The Explanatory Notes to the Bill are also misleading where they state, under the heading "Consistency with legislation in other jurisdictions", that: "The Bill is specific to the State of Queensland. However, it draws on practices that exist in Parliaments in other Australian and international jurisdictions". Nothing could be further from the truth in terms of the intended role of P;lrli:lmcnt J louse, George Street, Brisbane, 4000 Phone: (07) 34061374 • fa,,: (07) 3'106 7308 • E·mr\i1: ;i:pcilker@p:uli"ment.qld.goy.;m + \Veb~he: \V\\'\\'.parli:uncnf.gld.I'o\'.au -3-

the Committee of lhe Legislative Assembly and its composition. This Bill establishes a Commillee of the Legislative Assembly for Queensland that will be totally at odds with the arrangemenls and praclices that exisl in Parliaments in other Australian and internalional jurisdiclions, in that the Speaker is excluded from the commillee, and the makeup of the committee - it is chaired by lhe Leader of Government Business and includes the Premier and Deputy Premier - effeclively transfers adminislrative control of the Parliament from the Speaker and the Parliament 10 the executive.

Additionally under the heading "Policy objectives and the reasons for them", the Notes cile lhe government's August 2009 discussion paper Integrity and Accountability in Queensland as being the genesis for the creation of the Parliamentary Commillee System Review Committee. The purpose of the discussion paper was to promote public discussion on improving Queensland's integrity and accountability framework. The inclusion in the Explanatory Notes of this background to the establishment of the Review Committee adds to lhe credibility and respectability of thai committee's recommendations, including the creation of the Committee of the Legislative Assembly.

I draw to the attention of the Scrutiny Committee the statement in the Integrity and Accountability in Queensland discussion paper that "Democratic government, including the doctrine of the separation of powers, is a keystone of any integrity framework" and ask the committee to reflect on how the establishment of a powerful new management committee which excludes the Speaker and effectively transfers control of the Parliament to the executive makes an absolute mockery of the separalion of powers.

I am conscious that under our Westminster system of government, we do not have a strict separation of powers and that our system of responsible government means there is some degree of overlap between the legislature and the executive, whereas the judiciary is more clearly separated from the legislative and executive arms of government. However, I am equally conscious lhat the rationale for striving to maintain as clear a separation of powers as possible, even if in a limited form, always was and still is to divide and distribute the power of government, thereby safeguarding against tyranny and preserving the rights and liberties of the individual.

It is my strong view that the exclusion of the Speaker from the Committee of lhe -Legislative Assembly subverts the separation of powers, and the effective transfer of management control to this committee, which is dominated by the executive, violates the sovereignty of the Parliament. (I attach for the information of the Scrutiny Committee a transcript of a recent interview with lhe former Clerk of the Senate, Mr Harry Evans, on this and other aspects of the role of the Commillee of the Legislative Assembly).

I ask the committee to consider how it is being drawn into a defective and deceptive process of validating illegitimately conceived aspects of the Bilt in question. The committee has been asked in effee! to give credence and authorily to legislation that in part has been improperly conceived and does not adhere to fundamental legislative principles. If the Bill were to receive the commillee's imprimatur, it would be seen by the Parliament as being properly conceived in terms of policy objectives, as being the subject of an appropriate level of consultation and also as having sufficient regard for fundamental legislative principles. In trulh, however, the Bill does not withstand scrutiny on any of these grounds.

I ask the committee to consider the important role it can play in acting as a check and a balance on what clearly are legislative proposals arising from the unauthorised actions of a Parliamentary committee. Those Review Committee's recommendations which unambiguously fall outside the committee's terms of reference can be seen, and ought to be seen, as the work and product of a "rogue" committee. The Scrutiny of Legislation Committee has an obligation to lhe Parliament to hold this committee to account, and to not allow those recommendations thai are not within the commillee's terms of reference to form the basis of legislative proposals to be submitted via the Scrutiny of Legislation Committee to the Parliament for approval.

Parliament House, George Street, Orh.bane. 4000 Phone: (07) 3106 7314 • fax: (07) 3-106 7308. E-mail: spcaker@par!i:uncnt.nlcb:o"al! • \'('eb~itc: \\'\\;w.n:ulitlluent.qltl.t:!"v.•ul · ,

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There is an additional matter that I wish to raise for the cornmitlee's consideration, and that is the implications for the role of the Speaker of Clause 7 of Ihe Bill, which amends the Parliament of Queensland Act 2001 for the purpose of establishing the Committee of the Legislative Assembly and specifying its areas of responsibility. Under the proposed new Section 79E, the committee's areas of responsibility include "parliamentary powers, rights and immunities". The government has foreshadowed (in its response to the Review Committee's report) that these areas of responsibility will be expanded in due course. Amendments to Ihe Queensland Parliamentary Service Act 1998 will be required to transfer management and administrative responsibilities that now rest with the Speaker to the Committee of the Legislative Assembly, as has been foreshadowed.

The Bill currently before the Scrutiny Committee makes provision for the Speaker to be a member of the CommiUee of the Legislative Assembly "when the Commiltee is dealing with a matter relating to the Standing Rules and Orders". Such matters until now have been the responsibility of the Standing Orders Committee, which the Speaker chairs. Thus the Speaker's role has been downgraded and relegated when the committee deals with a matter relating to Standing Rules and Orders. This is despite the Standing Orders providing for the Speaker to be "the representative of the House and its powers, rights and immunities".

However, when the Committee of the Legislative Assembly is dealing with a matter involving parliamentary powers, rights and immunities but which does not relate to Standing Rules and Orders then the Speaker has no role at all in the way the committee deals with that maUer, despite being the representative of the House and its powers, rights and immunities. It is in this way that the Speaker is effectively emasculated as the representative of the House and its powers, rights and immunities by the creation of the Committee of the Legislative Assembly, and reduced to a subservient role. The subjection of the Speaker to the Committee of the Legislative Assembly will become even more deeply entrenched when management and administrative responsibilities which now rest with the Speaker are transferred to the committee.

I conclude this supplementary submission to the Scrutiny Committee with an illustration of how unwarranted executive intrusion into the management affairs of the Parliament is not just something that theoretically could happen under the guise of overhauling the Parliament's committee system, but actually has already happened. See enclosed, copies of letters J have sent this week to the Treasurer, and also to the Committee of the Legislative Assembly, regarding an amount of $100,000 provided to the Parliamentary Service as part of its 2011-12 Budget allocation "to undertake a business case to examine options for committee meeting space, for example relocation of corporate services".

Incredibly, the Parliamentary Service has been prOVided with $100,000 withoul asking for it, and has been officially informed what the money is for and how it is to be spent. The allocation appears to have been a unilateral decision by lhe government, most probably emanating from within the Cabinet Budget Review Commhtee. As stated in my letter, the executive - without consultation with either me as Speaker or with the Clerk - appears to have taken upon itself the task of preparing for the relocation of particular functions of the Parliamentary Service from the Parliamentary precinct. My concern is that if the executive feels comfortable and justified in taking such an action, lhat is, unilaterally intrUding itself into the management affairs of the Parliament, what might its next action be, and whal might progressively become its actions after lhat?

Yours sincerely .JtL.u. N JOH'~I~;~L MP peaker

Parliamcnf Homc, Ocorge Sncet. Bri~bane, '1000 Phone: (07) 3106 7374 • r:lx; (07) 3106 7308 • E-mail: ;llcaker{i!.lPilrli3I1lcnf.<]ld.!!o\·.au + WeD;lrc: wW\\·.lladialllcnr.<]ld.cov.;JlI Executive Building 100 George Street Brisbane PO Box 15185 City East Queensland 4002 Australia Telephone +617322//4500 Facsimile -t617 32213631 Email [email protected] Website ·/W.thepremler.qld.gov.au The Hon John Mickel MP Speaker of the Legislative Assembly Parliament House George St BRISBANE Q 4000

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pP Dear ~peaker .---

Thank you for your letter of 3 April 2011 regarding the proposed changes to the Parliamentary Committee structure.

I note the matters that you have raised in the letter and can assure you that your previous correspondence and submissions on the matter have been taken in to conside.ration as th'e Government formul~ted its response to the Queensland Parliamentary Committee System report.

However, as you would be aware, I introduced the Parliament of Queensland (Reform and Modernisation) Bill into the Legislative Assembly on 5 April 2011 and I consider this to be the Government's final position on the composition and role of the Committee of the Legislative Assembly.

Yours sincerely

.l//7' . ) /./ ,.•.,.,. ../ ..1',:/1 " , /it l~--'; " --- .IJ! {"i. If ; ..... /~{,. I .-; \ /'/'"')'r . ~ ,/ ,/'; I i I II~? I ! . \,"-l, /f\, " ,/ ;. :lVi/v '}>-' J ( ,.,."",/ :'1 <8 ... ANNA BLIGH MP f PREMIER OF QUEENSLAND ; .J~ ~I .i· "

Queensland Government