The Legislative Council is known as the ‘House of Review’, and the exercise of its ‘review’ function – and in particular the volume of activity in this space – is setting the 57th Parliament apart from ones that have come before. Let’s take a look at how the Council’s powers of scrutiny have been used in recent times…
(Non)majority rules
As regular readers are aware, an important function of the Council is to scrutinise and hold to account the executive government of the day – and the fact that no government has had a majority of members in the House since 1988 certainly helps in executing this function. But while there’s been no government majority for more than 30 years, the non-majority has pursued this function with particular energy during this Parliament.
Previous blogs have touched on the impact this Parliament’s larger and more diverse crossbench has had on the Council’s scrutinising of the government. Indeed, differences first became evident at the beginning of the Parliament in 2019, when members of the opposition and cross-bench worked together to introduce a raft of new sessional orders that significantly impacted the functioning of both the House and its committees – which you can read about here.
The sheer volume of activity relating to the Council’s role of review also clearly demonstrates the intensity of this function under the current Parliament…
- Nearly 120 Upper House inquiries have been established under this Parliament at just past the halfway point (not including joint inquiries with the Legislative Assembly), while fewer than 100 were conducted during the whole term of the previous Parliament.
- More than 250 orders for papers have been agreed to during the current Parliament so far, well surpassing the record 145 orders made during the entire 53rd Parliament.
- Some 6534 questions on notice have been asked by members in the 57th Parliament to date, compared to the previous Parliament, where 2403 were asked across the whole term.
- Many inquiries into bills have been established – since 2019, 21 bills have been referred by the Selection of Bills committee for short and sharp inquiry and report, and a further 10 bills have been referred by the traditional method of amendment to the second read or other procedures. For context, between 1997 and the end of the 56th Parliament, fewer than 20 bills were referred for inquiry and report overall.
- Ten disallowance motions have been moved by members in the 57th Parliament so far, with seven being agreed to – a stark contrast to the 28 motions moved and subsequently negatived in the previous Parliament.
Double act: The House and its committees
The interaction between the House and its committees in scrutinising policy, proposed legislation and executive activity has been fascinating to watch over the course of the 57th Parliament.
For example, the evidence obtained at a Budget Estimates inquiry in 2020 regarding the allocation of funding from the Stronger Communities Fund to certain local government areas led to the establishment of a committee inquiry to closely examine the fund, while the House almost simultaneously agreed to order papers from the government to further investigate the matter.
The documents produced helped determine what witnesses to invite to the hearings, and the evidence obtained from the hearings influenced certain procedural motions in the House – including further orders for papers, and ultimately the electronic recovery of deleted documents (something that had not happened before).
Regulating regulations
The interplay between committees and the House has also been applied to scrutinising the government’s use of statutory instruments and regulations (if you want to know more about ‘delegated legislation’, read our blog that discusses this in detail).
In 2020, a regulation was introduced to provide a framework for water harvesting during flooding events. The events that followed emphasise the Council’s ability to scrutinise decisions of the government made outside of Parliament.
Following a motion to disallow the regulation, it was referred to an Upper House committee for inquiry. During this time, the House also used its powers to order papers from the government that showed why and how the regulation was made. The order for papers and the Regulation Committee inquiry informed lengthy debate in the House, and the regulation was ultimately disallowed.
A lasting legacy?
More recently, in the last sitting week before the 2021 winter recess, the House referred an inquiry to the Procedure Committee into whether the current sessional orders should be adopted as standing orders. Why is this significant? Firstly, the last time a review of standing and sessional orders took place was in 2004, and secondly, this could mean that the sessional orders introduced at the beginning of 2019 could become permanent to the functioning of the Legislative Council. The Procedure Committee is due to report by the second sitting week of 2022. You can also follow the inquiry along on its webpage here.