Judicial Conduct Commissioner Bill

Committee Stage

In committee.

(Continued from 30 June 2015.)

Clause 1 passed.

Remaining clauses (2 to 36) passed.

Schedule.

The Hon. S.G. WADE: I thank the Leader of the Government for facilitating this matter to be dealt with earlier as I have a commitment at Government House later in the day. I also indicate to the chamber that at the request of the government I will make my contribution and we will adjourn at the end of that contribution so that the government and other members might consider the points I make. I move:

Amendment No 1 [Wade–1]—

Page 27, after line 18—After Part 9 insert:

Part 10—Amendment of Parliamentary Committees Act 1991

16—Amendment of section 15H—Membership of Committee

Section 15H—after subsection (1) insert:

(1a) A Minister of the Crown is not eligible for appointment to the Committee.

17—Amendment of section 21—Removal from and vacancies of office

Section 21(2)(e)—delete 'becomes' and substitute 'is'

Amendment No 2 [Wade–1]—

Long title—Delete 'and the Ombudsman Act 1972' and substitute:

, the Ombudsman Act 1972 and the Parliamentary Committees Act 1991

On 6 August 2014, this council resolved to invite the House of Assembly to reconsider its appointment of the Attorney-General to the Statutory Officers Committee in the context of section 21(2)(e) of the Parliamentary Committees Act 1991, which states:

A person ceases to be a member of a committee if the person…becomes a Minister of the Crown.

It was a polite way of this council saying that we consider that the house was not complying with the Parliamentary Committees Act. It took four months for the house to respond, and it did so in a motion moved by the Attorney-General on 2 December 2014, which states:

That a message be sent informing the Legislative Council that the House of Assembly notes the resolution of the Legislative Council and invites the Legislative Council to reconsider its apparently adverse reflection on the deliberations of the House of Assembly in appointing the Hon. J.R. Rau to the Statutory Officers Committee. Further, the House of Assembly invites the Legislative Council to reconsider inviting the House of Assembly to reconsider its appointment to the Statutory Officers Committee.

So, we are getting into a bit of a ping-pong match on the request for reconsideration. However, I note that the Attorney offered no comments in the House of Assembly to support what is implicit in his position, which is that it is appropriate for ministers to be on parliamentary committees and in particular the Statutory Offices Committee.

The motion was passed by the House of Assembly. Whilst in that sense there is a standing request for our house to reconsider our position, I do not think that message has been formally considered. Be that as it may, the issue arose again in the context of this bill, and it is the Liberal Party's view that it is an opportunity to address this issue in the act in which it arises, which is the Parliamentary Committees Act.

As I understand the government's position, it is based on a legal and technical reading of the act, which says that a current serving minister can be appointed to a parliamentary committee as they have not 'become' a minister while they were on the committee. It seems illogical, in our view, that if a person was not a minister when appointed and then became a minister, they would cease to be a member of the committee, but if they were already a minister, they could be appointed to the committee.

I think, and this council has affirmed its view, that the intent of the legislation is that ministers should not be members of parliamentary committees. The first reason is the general reasons for the independence of parliament and its committees from the executive. A key function of the parliament is to oversee the executive. Committees of the parliament are a key vehicle of oversight. The independence of committees and their oversight is weakened if members of the executive sit at the table of the committee.

On 6 August of last year, when the Hon. Gerry Kandelaars was speaking on behalf of the government in relation to the motion, he said:

I can advise the house that crown law has advised that the Parliamentary Committees Act 1991 does not prohibit the Deputy Premier from being a member of the Statutory Officers Committee on the basis of his being a minister.

It is worth looking at the act. As an example, if we go to Part 2—Economic and Finance Committee, concerning membership of the committee, members will note that section 5(2) states:

A Minister of the Crown is not eligible for appointment to the Committee.

That provision exists in all of the committees bar three, and those three committees are: the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation, the Statutory Officers Committee and the Natural Resources Committee. In fact, in terms of the Natural Resources Committee there is an extra provision that specifically allows the minister to be a member of the committee. It provides:

A Minister of the Crown is eligible to be a member of the Committee, and section 21(2)(e) does not apply in relation to the members of the Committee.

I thought the comments of the Hon. Gerry Kandelaars highlight what I understand is the default parliamentary practice, that members are not members of parliamentary committees unless there is a strong reason for members to be so.

Similar drafting also appears in the Parliamentary Committees (Electoral Laws and Practices Committee) Amendment Bill 2014. The bill that the Attorney-General introduced in the House of Assembly contained a specific clause, clause 15Q(2), that allows a minister to sit on the Electoral Laws and Practices Committee and further provides that section 21(2)(e) is not applicable. I submit that the Attorney's own bill implied that a minister should not sit on a committee without specific legislative exemption. If section 21(2)(e) does not have the effect of barring a minister then why specifically exclude its application?

In a bizarre coincidence, on 6 August of last year, the very day the Hon. Gerry Kandelaars was blessing the council with his rant against enforcing the Parliamentary Committees Act, the Attorney-General amended his own bill in the other place to remove the right of ministers to sit on the Electoral Laws and Practices Committee as proposed by that bill. He offered no argument for his changed position, but I think that it is appropriate. As the minister responsible for the Electoral Act, it would be inappropriate for him to be a part of the committee making recommendations on electoral law, most likely recommendations calling on him as minister to take action to change the law or the administration of the law.

So, the question that arises is whether, in spite of this general principle, there are strong reasons for ministers to be able to sit on the Statutory Officers Committee. Is there any reason why the Statutory Officers Committee has less need of independence such that parliament should allow ministers to sit on the committee? Alternatively, would ministers bring a special insight such that the committee would benefit from having ministers amongst their membership?

The Statutory Officers Committee exists to oversee the appointment of certain persons established under statute. Officers of the parliament, such as the Auditor-General and the Electoral Commissioner, are appointed by the parliament to reinforce the independence of the officers, independence both from the executive and from the parliament.

As a starting point, I think there are good grounds to provide that the Statutory Officers Committee does not include ministers. First, I put it to the council that as a general rule ministers should not sit on parliamentary committees. Secondly, I put it to the council that the Statutory Officers Committee in particular should not include ministers. Thirdly, I would argue that the bill before us and other recent acts make it inappropriate for the Attorney-General in particular to sit on the Statutory Officers Committee.

In relation to this bill, I would refer members to the appointment process in section 7. Section 7(4) provides that a person may only be appointed to be the commissioner if, following referral by the Attorney-General of the proposed appointment to the Statutory Officers Committee, the appointment has been approved by the committee or the committee has not, within seven days of the referral, or such longer period as is allowed by the Attorney-General, notified the Attorney-General in writing that it does not approve the appointment.

So this bill and another bill which had a similar process of appointment, the Independent Commissioner against Corruption Bill, both provide for the Attorney-General to select and formally nominate a candidate for a parliamentary officer position. That is, shall we say, a recent innovation by this parliament, and I think it fundamentally changes the context in which it is not appropriate for the Attorney-General, in particular, to sit on the Statutory Officers Committee, because we have the bizarre situation where the Attorney is making a recommendation, as a member of the executive, as to who he thinks is an appropriate person to fulfil a statutory role.

Unlike other Statutory Officers Committee appointments it is not the committee itself that manages the selection process, so the Attorney-General thinks it is appropriate to actually make the nomination, to make the referral to the committee, and also to be a member of the parliamentary committee considering his own nomination. We do not believe that is good governance, and it undermines the ability of the committee to provide for scrutiny of the appointments. The whole point of having these mechanisms is to protect the independence of the officer.

For all three of these reasons the opposition urges the council to support this amendment, to reaffirm its position as laid down on 6 August last year by supporting this amendment. As I indicated, the opposition understands that the government would like time to reflect on the amendment and our argument in support of it, and we have no objections to reporting progress.

Progress reported; committee to sit again.