1
The Executive and the Parliament: how the framework for determining the legislature's
funding can weaken the separation of powers
Sandra Kennedy
Introduction
This essay examines how the line between the executive and the legislature in the context of
the separation of powers can be blurred when the government of the day retains effective
control over the parliamentary budget. The essay argues that it is important for the parliament
to have the ability to control its funding as a means of ensuring that in the current age, an age
characterised by a growth in executive government,1 the parliament can continue to carry out
its fundamental role of holding the executive to account.
It will be argued that the ability of the parliament to achieve financial independence may help
preserve the separation between the executive and the legislature and guard against executive
interference in the parliament's scrutiny role. This will become clearer through an
examination of the funding structure currently in place for one of the houses of the
Parliament of Australia—the Senate—and the effects of the executive's involvement in this
process.2 The Australian Senate's funding structure will then be compared to those of several
Westminster jurisdictions with a view to identifying a more rigorous and independent method
for determining the financial resources allocated to the parliament to carry out its functions.
The essay addresses these matters by briefly examining the doctrine of the separation of
powers. It then considers recent challenges to this principle and identifies that the most
serious threat to the separation of powers is posed by the parliament's inability to retain
control of its budget. The essay will then explore how the Australian Senate is funded. It
examines this matter in the context of the ability of the parliament to continue to carry out its
functions, particularly that of holding the executive to account. The essay will then describe
how the parliaments in the Westminster jurisdictions of the United Kingdom (the House of
Commons), Canada and New Zealand are funded. The funding arrangements in these
jurisdictions will be briefly examined with a view to identifying how they are different to the
1
Laureate Professor Cheryl Saunders AO, "Hyper-executive Federalism: The increase in the power of the
Executive at the expense of Parliament in the context of federalism and intergovernmental relations", Address
delivered to the 2011 Annual Conference of the Australian Study of Parliament Group, Parliament House,
Melbourne, 7 October 2011.
2
The Australian Senate is of particular interest to the author due to its long-established role as a house of review
and its history of scrutinising government activity through its committee system. The author is an employee of
the Department of the Senate.
2
system in place at the Commonwealth level in Australia and whether they are more effective
at maintaining the separation between the executive and the parliament.
The separation of powers
Although the separation between the executive and the judiciary is not being considered in
this essay, it is noted that the judiciary's independence from the executive, like that of the
parliament, has been the subject of discussion for many years. It is only more recently that the
separation between the executive and the parliament has received greater attention. In
academic writings, notable justices have repeatedly identified and argued with persuasion the
need for the judiciary to remain independent of the executive. In emphasising this principle,
they have highlighted the consequential necessity that the judiciary be adequately resourced
to carry out its role in accordance with the doctrine of the separation of powers. Their
arguments are compelling and can be applied to the present discussion concerning the
independence of the parliament from the executive.
Speaking in 2004 while giving the 12th Lucinda Lecture, the Chief Justice of the Supreme
Court of Victoria, the Hon. Marilyn Warren AC QC, observed that 'the effective functioning
of the judiciary depends in large measure upon the financial and material resources made
available to it… [and that] [t]hose who control the purse strings will always have some
capacity to influence the actions of those who are dependent upon the contents of the purse.'3
In providing this warning, Chief Justice Warren asserted that 'legislators and ministers must
resist any temptation to use the power of the purse to influence judicial decision-making,
either directly or by seeking to influence judicial policy, and judges must be resolute in
resisting any temptation to endeavour to please the legislature or executive government in the
hope of obtaining more favourable treatment in relation to money or resources.'4 These same
issues have confronted the Parliament of the United Kingdom in recent years; in 2005 it
passed legislation that removed the House of Lords' judicial functions and established an
independent Supreme Court.5 Yet despite the steps taken, concerns remain that the judicature
3
Chief Justice Marilyn Warren AC QC, "What separation of powers?", Paper delivered at the 12th annual
Lucinda Lecture, Monash University, 21 September 2004, 5. Chief Justice Warren attributed her comments to a
previous Chief Justice of the Supreme Court of South Australia, Chief Justice King.
4
Marilyn Warren, "What separation of powers?", [5].
5
Richard Benwell and Oonagh Gay, "The Separation of Powers", House of Commons Library Standard Note,
SN/PC/06053, 15 August 2011, accessed 23 December 2012, http://www.parliament.uk/briefing-papers/
SN06053.pdf, 5.
3
will still rely on the Ministry of Justice for its funding and, therefore, will still need to
participate in the annual negotiations 'that the arrangements were intended to avoid.'6
As the above demonstrates, in seeking to maintain its independence from the executive
branch of government the judiciary has identified the ability to control its own budget as
being of vital importance. It is suggested that the experience of the judiciary is now playing
out in the parliament, and that the separation between the executive and the legislature can
similarly be diminished due to the executive's ability to control the purse strings of the
legislature. However, it is also suggested that the ability of the executive to interfere in the
finances of the parliament is less likely to be challenged than attempts to intervene in the
funding of the judiciary, given the reality of politics and the fact that members of the
judiciary are statutorily appointed. Actions by the executive to interfere in the funding of the
legislature, while expedient, blur the delineation between the two branches of government
which, under the doctrine of the separation of powers, should remain separate.
The French political philosopher Baron de Montesquieu wrote that the purpose of the
separation of powers is to 'guard against tyranny and preserve liberty' and that '[w]hen the
legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty… [and that] … there would be an end to everything, if the
same man or the same body… were to exercise those three powers.'7 Although a strict
separation of powers has been achieved in the United States through clear constitutional
provisions, a pure, or complete, separation of powers is not possible in a Westminster system
of government which requires the executive to be drawn from the parliament.8 According to
Grove however, it is 'a fundamental principle of the Westminster system that the Executive is
accountable to the Parliament and as such the Parliament must have the necessary resources
to hold the Executive to account.'9 Commenting on the growth in the executive, Professor
Scott Prasser observes that such growth has consequences for the Parliament's role. Prasser
6
Lord Phillips of Worth Maltravers, "Judicial independence and accountability: a view from the Supreme
Court", Gustave Tuck Lecture, 8 February 2011, 19; cited in Benwell and Gay, "The Separation of Powers", 10.
7
Montesquieu, Charles de Secondat, baron de. The Sprit of Laws (c.1748), translated and edited by Anne
Cohler, Basia Miller, Harold Stone (New York: Cambridge University Press, 1989); cited in Benwell and Gay,
"The Separation of Powers", 2.
8
In Australia, although the separation of powers is provided for by Chapters I, II and III of the Australian
Constitution, section 64 stipulates that '… no Minister of State shall hold office for a longer period than three
months unless he is or becomes a senator or a member of the House of Representatives.' For a summary of the
US and UK frameworks see Benwell and Gay, "The Separation of Powers", 3–4.
9
Russell Grove, "Constitutional and Parliamentary Reform Issues in the reform of Parliament – Resourcing the
Parliament The New South Wales experience", Paper presented to Australian and New Zealand Association of
Clerks-at-the-Table, 2002, South Australia, 7.
4
suggests that '…more funding for the executive inevitably means fewer resources for
parliamentary activities and services [as] … funding for parliament is largely decided by
executive government.'10
Nonetheless, parliaments in various Westminster jurisdictions have recognised that there is a
need to guard against the intrusion of the executive into matters of the parliament. This
recognition is perhaps best demonstrated through the development of the Commonwealth
principles on the accountability of and the relationship between the three branches of
government (Latimer House Guidelines). The Latimer House Guidelines are the agreed
Commonwealth of Nations principles on the accountability of, and relationship between, the
three branches of government: the executive, the legislature and the judicature.11 The
Guidelines were endorsed by the Commonwealth Heads of Government in Abuja, Nigeria in
December 2003.12 They were, however, first developed by a Colloquium on Parliamentary
Sovereignty and Judicial Independence within the Commonwealth in 1998.13
The objective of the Latimer House Guidelines is 'to provide, in accordance with the laws and
customs of each Commonwealth country, an effective framework for the implementation by
governments, parliaments and judiciaries of the Commonwealth's fundamental values.'14 Two
of the principles designed to support this objective are particularly relevant:
I)
The Three Branches of Government
Each Commonwealth country's Parliaments, Executives and Judiciaries are the
guarantors in their respective spheres of the rule of law, the promotion and
protection of fundamental human rights and the entrenchment of good
governance based on the highest standards of honesty, probity and
accountability.
…
VII) Accountability Mechanisms
(a) Executive accountability to Parliament
Parliaments and governments should maintain high standards of
accountability, transparency and responsibility in the conduct of all public
business.
10
Professor Scott Prasser, "Executive growth and the takeover of Australian parliaments", Australasian
Parliamentary Review 27, 1 (2012): 48–61.
11
Commonwealth Parliamentary Association, Commonwealth (Latimer House) Principles on the Three
Branches of Government (Abuja: Commonwealth Parliamentary Association, 2003), 1.
12
Ibid, 3.
13
Ibid, 7.
14
Ibid, 9.
5
Parliamentary procedures should provide adequate mechanisms to enforce the
accountability of the executive to Parliament.15
The Guidelines also provide direction for the law-making process through the requirement
that there be adequate parliamentary examination of proposed legislation and that opportunity
being given to the public to provide input into the legislative process.16
The first iteration of the Latimer House Guidelines, prepared in 1998, went further in
outlining how the objectives could be achieved, noting that in ensuring the accountability of
the executive to the parliament, adequate mechanisms were required. It suggested that such
mechanisms include, an adequately resourced committee structure and an 'all–party
committee of members of parliament' to review and administer the parliament's budget 'which
should not be subject to amendment by the executive.'17
Although mechanisms are in place to provide for the separation of the three branches of
government in Australia,18 and to ensure their transparency and accountability,19 those
mechanisms do not include the ability for the parliament to set its own budget, free from
executive influence.
The funding of the Australian Senate
In the Australian experience at the Commonwealth level, the debate concerning financial
independence dates back to the 1960s from which time it has been argued that the parliament
requires the ability to determine its own budget.20 Although the early debates ultimately
resulted in separate appropriation bills for the parliamentary departments being introduced in
1982,21 a seemingly more promising development for financial independence was also
achieved in that year when the Senate agreed to establish a Standing Committee on
15
Ibid, 9–11.
Ibid, 12.
17
Ibid, 21–22.
18
In Chapters I, II and III of the Commonwealth of Australia Constitution.
19
For example, through committee activities such as reference and legislation inquiries as well as the
consideration of estimates.
20
Concerns about the structure of the appropriation bills featured throughout the 1960s. An agreement between
the government and the Senate regarding the interpretation of the phrase 'ordinary annual services of the
government' contained is section 53 of the Constitution was reached with the Compact of 1965: see James R
Odgers CBE, Odgers' Australian Senate Practice, 13th ed, eds. Harry Evans and Rosemary Laing (Canberra:
Canprint Communications, 2012) 369. However, concern about the funding arrangements for the parliament
remained: see Mr Richard Cleaver MP, Member for Swann, House of Representatives Hansard (Canberra:
House of Representatives, 7 September 1967), 966–69; Senator Magnus Cormack, Senate Hansard (Canberra:
Australian Senate, 10 September 1968), 482–84.
21
Odgers, Odgers' Australian Senate Practice, 402–03.
16
6
Appropriations and Staffing. The Standing Orders were subsequently amended to establish
the committee at the commencement of each Parliament.22 The committee is tasked with
undertaking inquiries into proposals for the annual estimates and additional estimates of the
Senate, proposals to vary the staff structure of the Senate and staffing and recruitment
policies, the funding and administration of security and any other matters as are referred to it
by the Senate.23 The committee is required to table an annual report in the Senate each year
on the 'operations of the Senate's appropriations, staffing and related matters.'24 In its First
Report, the Standing Committee on Appropriations and Staffing outlined the procedures it
would follow in considering these matters. Notably it acknowledged that, although it intended
'to seek from the Government any guidelines relating to overall economic management and
the Government's economic objectives which the Government would wish the Committee to
consider', it did not 'expect that the Government will involve itself in the allocation of funds
to items within the estimate.'25 The committee also emphasized that its consideration and
determination of the estimates to be included in the appropriation bill would 'be based upon
the Committee's view of the real needs of the Senate and its Committee system, taking into
account the overall economic management objectives of the government of the day.'26
Although the Standing Orders provide a mechanism for the Senate to recommend to the
government its required funding levels for administration of the parliament, in recent years,
this process has not been free from executive intervention. Rather, the requests for funding
put forward by the Chamber, on the recommendation of the Appropriations and Staffing
Committee, have not been successful or have only been successful in part. During the 43rd
Parliament for example, through the appropriations process the Senate sought additional
funding for the establishment of a new joint select committee and other expected increases in
workload. That request, however, was only successful in part and in its report to the Senate
for the 2011–12 financial year, the Appropriations and Staffing Committee reported that
'funding for the Joint Select Committee on Gambling Reform is the only approved budget
measure of the three proposals endorsed by the Committee and submitted to the Prime
22
Australian Senate, Standing Orders and other Orders of the Senate (Canberra: Australian Senate, June 2009),
16–18. Refer to Standing Order 19.
23
Australian Senate, Standing Orders, 17. Standing Order 19 provides that this committee shall determine the
amounts for inclusion in the parliamentary appropriation bill and report to the Senate those determinations prior
to their consideration by the Senate in the relevant bill (Standing Order 19(3)(a)). The committee does this
through the tabling of reports.
24
Australian Senate, Standing Orders, 17. Refer to Standing Order 19(3)(c).
25
Senate Standing Committee on Appropriations and Staffing, Parliament of Australia, First Report (Canberra:
Australian Senate, 1982), 5.
26
Ibid, 5.
7
Minister and the Minister for Finance and Deregulation.'27 The remaining two proposals28
were not successful.
In its report to the Senate, the committee also noted that there had 'been no response to its
correspondence and no reason given for varying the proposals endorsed by the committee.'29
Consequently, in its report the committee drew the attention of the government to resolutions
of the Senate agreed to on 2 December 1985 and 30 November 1988.30
In its 53rd Report to the Senate concerning the estimates for the 2012–13 financial year the
Committee again raised these same concerns, advising that although the Senate had been
provided with some funding for the establishment of the new Joint Committee on Human
Rights, although less than what the Standing Committee on Appropriations and Staffing had
proposed, requests for funding to support legislative drafting and improve information
technology capacity again went unanswered.31 In its report the Committee noted 'with
concern that there has been no response to its correspondence and no formal communication
from government to the Committee as envisaged by the resolutions of the Senate on
2 December 1985 and 30 November 1988 which set out processes to be followed in these
circumstances.'32
The resolutions referred to in the committee's 52nd and 53rd reports are those which establish
the processes which the Chamber agreed are to be followed in the event that the Minister for
Finance disagrees with the estimates put forward by the Appropriations and Staffing
Committee. The resolution of November 1988 reaffirmed the resolution of 2 December
1985,33 the 2 December 1985 resolution being:
That—
(a)
27
the provisions of the Resolution of the Senate dated 25 March 1982,
relating to the responsibilities of the Standing Committee on
Appropriations and Staffing with respect to the Estimates for the Senate,
are re-affirmed;
Senate Standing Committee on Appropriations and Staffing, Parliament of Australia, Estimates for the
Department of the Senate 2011–12 52nd Report (Canberra: Australian Senate, 2011), 1–2.
28
The other two proposals for which funding was sought were for legislative drafting and advice services and
for enhancing information management capacity: Ibid.
29
Ibid, 1.
30
Ibid, 1. These resolutions are discussed later in this section.
31
Ibid, 1,
32
Senate Standing Committee on Appropriations and Staffing, Parliament of Australia, Estimates for the
Department of the Senate 2012–13, 53rd Report (Canberra: Australian Senate, 2012), 1.
33
Senate Standing Committee on Appropriations and Staffing, Parliament of Australia, Parliament of Australia
Reductions in Appropriations for the Senate, Eleventh Report (Canberra: Australian Senate, 1988), 26.
8
(b)
(c)
(d)
(e)
(f)
the estimates of expenditure for the Senate to be included in the
Appropriation (Parliamentary Departments) Bill shall continue to be
those determined by the Standing Committee on Appropriations and
Staffing;
if before the introduction of the Bill the Minister for Finance should, for
any reason, wish to vary the details of the estimates determined by the
Committee he should consult with the President of the Senate with a
view to obtaining the agreement of the Committee to any variation;
in the event of agreement not being reached between the President and
the Minister, the Leader of the Government in the Senate, as a member
of the Appropriations and Staffing Committee, be consulted;
the Senate acknowledges that in considering any request from the
Minister for Finance the committee and the Senate would take into
consideration the relevant expenditure and staffing policies of the
Government of the day; and
in turn the Senate expects the Government of the day to take into
consideration the role and responsibilities of the Senate which are not of
the Executive Government and which may at times involve conflict with
the Executive Government.34
The recent experiences of the Senate, as set out in the 52nd and 53rd reports of the
Appropriations and Staffing Committee, suggest that the financial relationship between the
executive and the legislature has not, of late, been entirely guided by the framework of
cooperation, consultation and the consideration of the real needs of the Senate that was
agreed to in the 1980s. How this affects the ability of the Senate to carry out its function of
holding the government to account is a cause for concern.
In his paper, Parliament Scrutiny of Government Performance in Australia, Paul G. Thomas
observed that '[i]n assessing parliament's overall performance of its scrutiny role, it is
necessary to distinguish between the contribution of the House of Representatives, which is
generally seen to be under tight government control, and that of the Senate where the usual
absence of a government majority is said by many informed observers to permit a stronger
legislative review and scrutiny function.'35 Thomas argued that although partisanship remains
in the Senate, 'it is combined with a collective sense that the upper house must act as a check
on executive power and with a slight superiority complex to the House of Representatives,
which is seen as too subservient to the government of the day.'36 Although this should be the
case it is, however, contended that the interference of the executive in the determination of
the Senate's budget undermines this system, particularly given that the executive's influence
34
Ibid, 26.
Paul G. Thomas, "Parliament Scrutiny of Government Performance in Australia", The Australian Journal of
Public Administration 68, 4 (2009): 373.
36
Ibid, 394.
35
9
on the Senate's funding affects the funds available to support legislative drafting37 and the
activities of committees.
Evidence that this is now occurring can be seen through testimony provided to a Senate
committee during recent estimates hearings. In 2012, the Clerk of the Senate informed a
Senate committee considering the budget estimates that in recent years the Department of the
Senate's financial position had been contracting as 'in real terms income has been static while
expenses have been rising.'38 The Clerk went further in the Department's 2011–12 Annual
Report, stating:
Although the department received a small increase in funding for the new
Parliamentary Joint Committee on Human Rights, the increase was less than
the Appropriations and Staffing Committee had endorsed as representing
reasonable costs to support the committee. Two other small new policy
proposals endorsed by the committee were also rejected, leaving the 2012–13
Budget significantly short of what is required to support the department's
operations for the next financial year. As a consequence, measures have been
implemented to reduce staffing levels and operational expenditure, but there
will almost certainly be an impact on the services that the department will be
able to provide to senators in the next financial year, compared with services
that have been able to be provided in the past.39
Indeed, analysis of the staffing and appropriations of the Department of the Senate from the
2008–09 financial year to the 2011–12 financial year show that over this period the
Department of the Senate's staff numbers fell from 163 to 158.40 Over this same period there
was a corresponding decrease in the number of staff tasked with supporting committees, from
62 to 59.41 Despite the changes, committees have continued to produce a significant number
of reports (see Table 1). Although it is difficult to draw clear conclusions from the statistics
available on the number of reports tabled by Senate committees, while fewer reports were
tabled by Senate standing committees in 2011–12 compared to the three previous financial
37
It is suggested that the impact of denying the Senate requested funds for legislative drafting activities is a
particular concern given that under the Constitution the Senate has almost co-equal powers with the House of
Representatives regarding legislation; the House, being controlled by the government of the day, has access to
the public service for the preparation of legislation whereas the Senate's resources are clearly more limited.
38
Senate Standing Committee on Finance and Public Administration, Parliament of Australia, Budget Estimates
Hansard (Canberra: Australian Senate, 2012), 4. Refer to evidence provided by Dr Rosemary Laing, Clerk of
the Senate.
39
Department of the Senate, Annual Report 2011–12 (Canberra: Australian Senate, 2012), 3–4.
40
Department of the Senate, Annual Report 2008–09 (Canberra: Australian Senate, 2009), 122; Department of
the Senate, Annual Report 2011–12, 154.
41
Department of the Senate, Annual Report 2008–09, 122; Annual Report 2009–10 (Canberra: Australian
Senate, 2010), 160; Annual Report 2010–11 (Canberra: Australian Senate, 2011), 160; Annual Report 2011–12,
154.
10
years, the number of reports tabled on average per year between 2009–10 and 2011–12 is
similar to the 2008–09 figures. This indicates that the department is being required to do
more with less, a situation that is almost certainly unsustainable in the long term.
Table 1: Reports presented by Senate standing committees, 2008–09 to 2011–12
Report type
2008–09
2009–10
2010–11
2011–12
2009–10 to
2011–12
average
Reports on bills
86
83
82
73
79
Interim reports on bills
15
9
10
2
7
Reports on other references
29
33
41
26
33
Interim reports on other
references
13
18
29
14
20
Reports on annual reports
16
15
15
16
15
Reports on estimates
16
16
15
17
16
175
174
192
148
171
Total
Note: Figures do not include estimates activities, Senate select committees or the joint parliamentary committees
that the Department of the Senate supports.
Source: Department of the Senate, Annual Report 2010–11, 72; Annual Report 2011–12, 69.
However, while a significant number of reports continue to be produced, Table 2 below
suggests a clearer downward trend in the usage of a particular method of scrutiny. There were
241 public hearings held in the 2008–09 financial year; however, during the 2010–11 and
2011–12 financial years the number of hearings fell significantly, to 118 and 142
respectively.
Table 2: Number of Senate standing committee public hearings, 2008–09 to 2011–12
2008–09
2009–10
2010–11
2011–12
Number of hearings
241
227
118
142
Hours of hearings
997
979
507
641
Note: Figures do not include estimates activities, Senate select committees or the joint parliamentary committees
that the Department of the Senate supports.
Source: Department of the Senate, Annual Report 2010–11, 73; Annual Report 2011–12, 70.
It is suggested that as the number of hearings conducted reduce and the writing of committee
inquiry reports is increasingly conducted 'on the papers' and therefore with less stakeholder
engagement, the Senate's scrutiny role and its responsibility to hold the executive to account
11
has been compromised. Indeed, on the role that committees should perform, a former Clerk
of the Senate stated that:
Most significantly, committees provide a means of access for citizens to
participate in law making and policy review. Anyone may make a submission
to a committee inquiry and committees will normally take oral evidence from
a selection of witnesses who have made written submissions. Committees
frequently meet outside Canberra, thereby taking the Senate to the people and
gaining first hand knowledge of and exposure to issues of concern to the
public.
Inquiries by committees allow citizens to air grievances about government and
bring to light mistreatment of citizens by government.42
The fact that the reduction in public hearings has been coupled by an increasing occurrence
of hearings taking place in Canberra, as identified in Table 3, is suggestive of the fact that the
role traditionally envisaged for Senate committees is being eroded. The ability of the Senate
to engage the public in the development and review of both policy and law by taking the
parliament to the people cannot be taken full advantage of if public hearings are progressively
limited to the nation's capital city.
Table 3: Proportion of Senate committee meetings held in the Australian Capital Territory,
2008–09 to 2011–12
2008–09 2009–10 2010–11 2011–12
Number of hearings conducted in
the ACT, as a percentage of total
71.2%
76.6%
84.4%
82.9%
Note: Figures exclude estimates hearings.
Source: Department of the Senate, Annual Report 2008–09, 55; Annual Report 2009–10, 79; Annual Report
2010–11, 78; Annual Report 2011–12, 74.
Also concerning, however, is the reduction in the number of amendments to legislation that
have been moved in the Senate over recent years. Figure 1 below, extracted from the
Department of the Senate's 2010–11 Annual Report, shows a decline in the number of
amendments moved since the 2006–07 financial year, even with the composition of the
chamber creating a balance of power (shared at various times by the Australian Democrats,
the Australian Greens, Family First and one independent senator).
42
Odgers, Odgers' Australian Senate Practice, 443–44.
12
Figure 1: Amendments moved in and agreed to by the Senate, 2006–07 to 2010–11
Note: The figures for amendments also include requests for amendments and proposals to omit clauses or items
from bills.
Source: Department of the Senate, Annual Report 2010–11, 34.
Commenting on developments during the most recently completed financial year, 2011–12,
the Clerk of the Senate also noted the 'absence of legislative disagreement between the
Houses, usually reflected in negotiations on amendments made by the Senate to bills
originating in the House of Representatives.'43 The Clerk observed that perhaps this situation
was 'one of the more unexpected outcomes of minority government in the House.'44 It is
suggested, however, that should this situation continue, together with a reduction in staffing
levels in the Department of the Senate, the Senate's ability to effectively scrutinise the
executive and hold it to account will be compromised. It is contended that, even in a hung
parliament, the Senate remains the superior house of review as its members are not as
captured by the local duties caused by representing an individual electorate or the three year
election cycle that members of the House of Representatives face45 and are, therefore, more
able to scrutinise proposed legislation and hold the executive to account. Indeed, the Clerk of
the Senate has stated her concerns for the ongoing ability of the Department of the Senate to
43
Department of the Senate, Annual Report 2011–12, 3.
Ibid, 3.
45
With the exception of the terms of senators representing the Australian Capital Territory and the Northern
Territory, the duration of which are linked to the House of Representatives.
44
13
serve the Parliament and effectively carry out its functions in the absence of financial
autonomy.46 In her forward to the 2011–12 Annual Report Dr Laing stated:
As a matter of principle, the lack of regard shown by successive executive
governments for the operational needs of the Parliament to enable it to
function effectively is a worrying trend. Since the 1980s, the Senate has had
an Appropriations and Staffing Committee and a mechanism for engaging the
executive government in relation to the department's budget but the
mechanism, though clearly not a legal requirement, has had only limited
effectiveness. Experience in other jurisdictions where parliaments have a
greater degree of autonomy in setting their budgets shows that the function is
undertaken responsibly and having regard to prevailing financial and
economic circumstances. There are no grounds to believe that the Australian
Parliament would not adopt the same responsible approach, especially where
the budget-setting mechanism included high level representation of both
government and non-government interests (as the Appropriations and Staffing
Committee does).
The institutions of representative and responsible government are at the head
of the Australian Constitution. Their ability to carry out fundamental
representative, scrutiny and legislative functions should not be compromised
by continual and arbitrary reduction of funds.47
The Clerk of the Senate's calls for greater financial independence of the Senate by providing
it with the authority and autonomy to determine its own budget has been the source of
discussion in other Commonwealth jurisdictions in recent years—most recently at the
meeting of Presiding Officers held in the Solomon Islands in 2012. Following consideration
of this issue, the Australian Presiding Officers issued a communiqué urging parliaments to
achieve 'financial autonomy' and 'responsibly determine [their] own budget[s] free from the
constraints of the Executive, having regard to the prevailing financial circumstances of each
jurisdiction.'48 Accordingly, it is worth considering the different funding models that are in
place in some of these Westminster jurisdictions with a view to determining a best practice
approach.
46
Ibid, 3.
Ibid, 3–4.
48
The Presiding Officers of the Australian Parliaments, Communique – Independence of Parliament, issued at
Honiara, 26 July 2012.
47
14
The United Kingdom
In the United Kingdom, the House of Commons has a system of self-government, designed to
ensure freedom from outside influence.49 According to Sir Kevin Tebbit, this is necessary to
'reflect the unique position and need of Parliament to exercise control over all the resources
necessary to achieve its purpose, in accordance with the constitutional principle of
independence from the Executive.'50 The structure that has developed over time in the House
of Commons to perform this role includes three key bodies: the House of Commons
Commission (the Commission), the Finance and Services Committee, and the Administration
Committee.51 A Board of Management, chaired by the Clerk of the House as the chief
executive, performs tasks delegated to it by the Commission and formulates the policies and
budgets of the House which are approved by the Commission.52
The House of Commons Commission was established by the House of Commons
(Administration) Act 1978 and commenced on 1 January 1979.53 That Act conferred on the
Commission responsibility for:
1. the preparation and presentation of an annual report on the exercise of its functions;
2. the appointment of all staff in the House Departments54 and the determination of their
number, remuneration and employment conditions; and
3. the annual preparation and presentation of an estimate for the year of the use of
resources for the services of the House of Commons.55
The Act also empowers the Commission to, from time to time:
1. increase or decrease the number of House Departments;
49
Sir Kevin Tebbit KCB CMG, Review of Management and Services of the House of Commons (London: House
of Commons, 2007), 10.
50
Ibid, 10.
51
Ibid, 10–11.
52
"The House of Commons Administration explained", House of Commons, accessed 5 January 2012,
http://www.parliament.uk/business/commons/governance-of-the-house-of-commons-/house-governancestructure/. The Board of Management also oversees the operational functions of the House of Commons and the
five House departments.
53
Section 5, House of Commons (Administration) Act 1978. The House of Commons (Administration) Act 1978
was the result of "two earlier reports – the Compton Report (1974) and the Bottomley Report (1975)." House of
Commons Management Board, Management Board response to the Tebbit implementation review, August
2010, 2.
54
The House Departments are defined in subsection 4(1) of the Act as meaning, the Department of the Clerk of
the House of Commons, the Department of the Speaker, the Department of the Serjeant at Arms, the Department
of the Library, the Administration Department, and the Department of the Official Report of the House of
Commons, and any other House Department provided for under subsection 4(3).
55
Sections 1–3, House of Commons (Administration) Act 1978.
15
2. allocate functions to a House Department; and
3. for those purposes, create, divide, amalgamate or abolish any House Department.56
The membership of the Commission is prescribed by the Act to consist of:

the Speaker of the House of Commons;

the Leader of the House of Commons;

a member of the House of Commons nominated by the Leader of the Opposition; and

three other members of the House of Commons, appointed by the House of
Commons, none of whom shall be a Minister of the Crown.57
Canada
Similar to the approach taken by the United Kingdom House of Commons, the financial and
administrative affairs of the Canadian House of Commons is governed by a committee—the
Board of Internal Economy.58 Pursuant to the Parliament of Canada Act, the Board has 'legal
authority to act on all financial and administrative matters respecting the House, its premises,
services, staff and Members.'59 Its membership 'consists of equal numbers of government and
opposition representatives drawn from all recognised parties in the House of Commons.'60
The Clerk of the House of Commons, as the chief executive officer of House administration,
reports to the Board.61
The upper house in Canada's Parliament, the Canadian Senate, is also self-governed like the
Canadian and United Kingdom Houses of Commons. The Senate equivalent of the Board of
Internal Economy is the Standing Committee on Internal Economy, Budgets and
Administration (Internal Economy Committee).62 The Internal Economy Committee's
membership consists of 15 senators and 'reflects the political composition of the Senate and is
subject to the rules, direction, and control of the Senate.'63 Like the House's Board, the
Internal Economy Committee also 'has authority to act on all financial and administrative
56
Subsection 4(3), House of Commons (Administration) Act 1978.
Subsection 1(2), House of Commons (Administration) Act 1978.
58
Office of the Auditor General of Canada, Report of the Auditor General of Canada to the Board of Internal
Economy of the House of Commons – Administration of the House of Commons (Ottawa: House of Commons,
2012), 5.
59
Ibid, 6.
60
Ibid, 6.
61
Ibid, 1, 8.
62
Office of the Auditor General of Canada, Report of the Auditor General of Canada to the Standing Senate
Committee on Internal Economy, Budgets and Administration (Ottawa: Canadian Senate, 2012), 1.
63
Ibid, 1.
57
16
matters respecting the Senate, its premises, its services and staff, and Senators.'64 The Internal
Economy Committee is responsible 'for ensuring that the Senate's resources are managed
appropriately and its assets are protected.'65 The Committee is responsible for establishing
and approving 'administrative policies, reviews and authorises budgets of the Administration
and committees, and sets policies and guidelines on items such as Senators' travel and
research expenditure.'66 The Clerk of the Senate is responsible for the overall management of
the administration of the Senate and reports 'legislative, procedural, precinct and other
institutional matters' to the Speaker (the Chair of the Committee).67
New Zealand
In New Zealand, which unlike the United Kingdom and Canada has a unicameral parliament,
the Parliamentary Service Commission is the body responsible for determining and
administering 'the resources available to support members of Parliament.'68 The
Parliamentary Service Commission (the Commission) is constituted under the Parliamentary
Service Act 2000.69 Its functions include:

advising 'the Speaker on matters such as the nature and scope of the services to be
provided to the House of Representatives and members of Parliament';

recommending 'criteria governing funding entitlements for parliamentary purposes';

recommending 'persons who are suitable to be members of the appropriations review
committee';

considering and commenting on 'draft reports prepared by the appropriations review
committees'; and

appointing members of the Parliamentary Corporation.70
The Parliamentary Service Act prescribes that the membership of the Commission shall
consist of:
64
Ibid, 5.
Ibid, 5.
66
Ibid, 5.
67
Office of the Auditor General of Canada, Report to the Standing Senate Committee on Internal Economy,
Budgets and Administration, 5.
68
Hon Stan Rodger, Chair of Review Team, Report of Review Team on A Review of the Parliamentary Service
Act to the Parliamentary Service Commission (Wellington: Parliament of New Zealand, 1999), i.
69
Parliamentary Service Commission, Annual Report for the year ended 30 June 2012 (Wellington:
Parliamentary Service Commission), accessed 27 December 2012, http://www.parliament.nz/NR/rdonlyres/
126A5D42-2DEC-47DB-8AE1-08E2113D655D/242259/00SpeakPSC12AR1.pdf, [1].
70
Ibid.
65
17

the Speaker, who also chairs the Commission;

the Leader of the House, or a member of Parliament nominated by the Leader of the
House;

the Leader of the Opposition, or a member of Parliament nominated by the Leader of
the Opposition;

one member for each recognised party that is represented in the House by one or
more members; and

an additional member for each recognised party that is represented in the House by
30 or more members (but does not include among its members the Speaker, the
Leader of the House, or the Leader of the Opposition).71
The Parliamentary Service Act requires that the 'administrative and support services provided
to the House and to members of Parliament and the funding entitlements for parliamentary
purposes are subject to a triennial review by a committee appointed by the Speaker.'72
Analysis
As described above, the systems in place in the United Kingdom, Canada and New Zealand
that are used to determine the services and resources that the parliament will be provided with
to carry out its roles, including scrutinising the activities of the executive and holding it to
account, are established by statute rather than, as is the case in the Australian Senate, by
standing order. It is suggested that frameworks for determining parliamentary resourcing
which are contained in statute better enable a legislature to ensure its independence from
executive influence and interference on an ongoing basis. Indeed, in 2005, the
Commonwealth Parliamentary Association (CPA) commissioned a review of the
administration and financing of parliaments. That review, conducted by the CPA and the
World Bank Institute, identified that:
Many Parliaments are moving towards establishing corporate bodies as a way
of better utilizing the resources available while at the same time enhancing
their independence from the executive. In cases where such bodies have been
established, there is evidence that Parliament is better able to assert its
independence and ensure that adequate resources, both financial and
otherwise, are made available. This, in turn, enables Parliament to discharge
71
Ibid. The Act precludes Ministers or Parliamentary Under-Secretaries from being appointed to the
Commission.
72
David McGee, "Chapter 5: Administration of the House" in Parliamentary Practice in New Zealand, 3rd ed.
(Wellington: Dunmore Publishing Limited, 2005), accessed 27 December 2012, http://www.parliament.nz/
NR/rdonlyres/28B669FD-8702-4DC2-9F52-35CACFED9DF7/162982/PPNZChapter5_.pdf, 58.
18
its functions more effectively while also allowing Members to exercise
appropriate control over the prioritization of the delivery of services by the
parliamentary service.73
In its report, the study group considered a series of themes, one of which was how to ensure
the independence, effectiveness and accountability of parliament. Its findings are significant
in terms of this paper's discussion:
Given that one of the key purposes of Parliament is to hold the executive to
account, there is a compelling argument that Parliament should be able to
discharge its constitutional responsibilities free from government
interference.74
The Study Group went on to note that despite the undertakings agreed to in the Latimer
House Guidelines, '[a]t a practical level parliamentary independence and the ability to
determine the level of resources required by Parliament creates new challenges in terms of
increased accountability.'75 In its conclusions and recommendations the Study Group
observed that, despite the commitment to the Guideline's, which included the principle the
parliament be free to review and administer its budget without amendment by the executive,
the financial independence of Commonwealth Parliaments varied.76 The Study Group noted
that financial independence of the parliament from the executive, whether achieved by
written constitution, legislation or custom and practice (or combinations of all three), can be
measured 'by its ability to control the resources it requires to meet the legislative
responsibilities of government.'77 As a result, the Study Group again recommended that
'Parliaments should have control of, and authority to set out and secure, their budgetary
requirements unconstrained by the executive.'78
Although the Australian Senate does have in place a mechanism for consultation between the
Senate and the executive regarding funding arrangements, as discussed above it is established
in the Senate's standing orders, rather than in statute. As also noted above, in recent years that
mechanism has not resulted in the Senate receiving the resources it considered were
necessary for it to carry out its responsibilities. Unlike the Australian Senate, the parliaments
73
Commonwealth Parliamentary Association and World Bank Institute, Administration and Financing of
Parliament, A Study Group Report (London: Commonwealth Parliamentary Association, 2005), 1.
74
Ibid, 2.
75
Ibid, 6.
76
Ibid, 6.
77
Ibid, 13, 25.
78
Ibid, 13, 25.
19
in the jurisdictions of the United Kingdom, Canada and New Zealand are administered by
body corporates, established by statute. It is noted that the effectiveness of these bodies has
also been periodically considered in these jurisdictions as they have, it appears, struggled
with the challenge of achieving their financial independence from the executive. In each of
these jurisdictions, multiple reviews of the body corporates responsible for the administration
of the departments have recommended that mandatory, independent reviews be undertaken to
ensure they are functioning as intended. Of course, the politics of the day and the
composition of the particular parliamentary chamber may also impact the effectiveness of
these bodies.
Nonetheless, it is suggested that the committees founded in statute rather than by standing
order are generally in a stronger position to secure the financial resources identified as
necessary for meeting the needs of the parliament, with less scope for the outcome to be
influenced by the executive. The operation and effectiveness of these bodies can also be
further strengthened by ensuring that they are subject to regular independent review.
Although in the Australian Senate the Standing Committee on Appropriations and Staffing
reports on matters of administration to the Senate Chamber, and has procedures for
determining the estimates to be included in the annual appropriations, in recent years, these
reports and procedures have been overridden by the executive. It is suggested that if the
Australian Senate were to follow suit and seek to establish in statute a body with a role
equivalent to that of the current appropriations and staffing committee, supported by a
legislative framework similar to that expressed in the 2 December 1985 resolution of the
Senate, it would be more difficult for the Senate's ability to discharge its duties and hold the
government to account to be potentially compromised as a result of a government influencing
or restricting the resourcing of the Senate.
Conclusion
It is clear that the Australian Parliament is out of step with other Commonwealth jurisdictions
with respect to the determination of the parliamentary budget. Reform is necessary to ensure
the independence of the parliament from executive influence and to uphold the principle of
separation of powers. Although there is no single threat to the separation of powers, ensuring
that the parliament can determine its own resourcing needs and is appropriately funded will
help ensure that the parliament has the ability and the courage to scrutinise the executive and
hold it to account. One way of bolstering the division and ensuring the independence of the
20
parliament from the executive would be by enshrining the parliament's financial autonomy in
legislation, rather than in standing orders.
As has been the case in other Commonwealth jurisdictions, this would not result in disregard
for budgetary considerations, but rather would ensure that the parliament controls its own
budget, having consideration to its needs and being exempt from the application of arbitrary
efficiency dividends. Furthermore, it is suggested that the systems operating in the United
Kingdom, Canada and New Zealand could be used as a guide for reform as the parliaments in
these jurisdictions are administered by body corporates that are independent of the executive,
managed by committees reflecting the composition of the parliament and subjected to regular
independent expert review.
Heeding the warnings of the Clerk of the Senate, it is suggested that if the current situation of
executive interference with the financial affairs of the Australian Senate is not addressed, its
vital role as the primary house of review at the Commonwealth level in Australia may be
fundamentally weakened.
21
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