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Parliaments and accountability – do the numbers add up

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					      37th Presiding Officers and Clerks Conference
                           Perth
                         July 2006




Parliaments and accountability –
    do the numbers add up?
            Paper to be presented by Wayne Berry, MLA, Speaker of the
             Legislative Assembly for the Australian Capital Territory

        Indeed, rather amusingly if tragically, a Senate report saw the situation between the
         executive and the parliament in Tasmania as a problem similar to that of the army
          in the fictional land of OZ which “had four generals, four colonels, four majors,
                                 four captains and only one private”.1




Introduction

I recently attended, along with several other Speakers and Clerks from other
jurisdictions, a conference held in Brisbane in April 2006 which was entitled
Improving Government Accountability in Queensland: the Upper House Solution.
Not surprisingly, the conference focussed on issues of accountability in a unicameral
parliament, and whether an upper house would alleviate any concerns about any
perceived lack of accountability.

Whilst it is fair to say that the likelihood of an upper house in Queensland is remote
(with one paper stating that other polities like Queensland which have abolished their
second chambers have not restored them2), the chances of an upper house in the
Australian Capital Territory are virtually non-existent. That being the case, I thought
it might be useful to examine what accountability measures are available in a small
legislature with no upper house and the pressures that carrying out those functions
places on a legislature. In this paper I will look specifically at the use of questions, the
committee system, and the general issue of the size of the legislature.

Background

As most of you would be aware, the Assembly has been in existence since 1989
following passage through the Federal Parliament of the Australian Capital Territory
(Self-Government) Act 1988. That Act provided for the establishment of a 17 Member
Legislative Assembly with no representative of the Crown (unlike the Northern
Territory which has an Administrator as part of its structure of governance).

The Assembly elects a Chief Minister, and, on two occasions already, it has removed
the Chief Minister by way of motions of no-confidence3. The Chief Minister appoints
Ministers, but is limited in the number he or she can appoint – currently the number
1
  Professor Richard Herr, The truth about ‘hung parliaments’, paper presented at the 2006
CEDA/Fujitsu Economic and Political Overview, Hobart, 20 February 2006.
2
  The case against upper houses, paper presented by Professor Paul Reynolds to the Upper House
Solution Conference, 21 April 2006, Brisbane, The TC School of Law, University of Queensland.
3
  A third Chief Minister resigned from office the day before a motion of no confidence was moved in
the Assembly. As a consequence, the Leader of the Opposition allowed the motion of no confidence to
lapse by failing to move it when it was called upon. (Minutes of Proceedings, 18 October 2000, p1014).


                                                  2
appointed is five (including the Chief Minister)4. Once a Speaker is elected, that
leaves 11 other members to perform the various scrutiny roles of the parliament and to
provide an effective check and balance on the activities of the Executive and the
Judiciary. Whether this is sufficient to ensure an appropriate level of accountability is
discussed below.

Issues

     (a) Size of a Parliament, and members available for scrutiny function

Parliament is a forum for the scrutiny and publicity of the Executive Government’s
action. Proper scrutiny and critical comment on the actions of the executive is
essential for democracy because it informs the electors about the reasons why
decisions have been taken, the influences that produced those decisions, and a
legitimised alternative. Such scrutiny promotes the concept of public accountability,
parliamentary control and open government5.

I would argue that larger parliaments are better placed to perform this essential
scrutiny role. This is because smaller parliaments have a less than adequate critical
mass to effectively utilise all of the accountability tools that are available to scrutinise
the executive’s actions. As the ACT is a small unicameral parliament it can be quite
difficult to fill all the roles required of a parliament.

To demonstrate my point, the Table below examines a selection of Australian
parliaments and the New Zealand Parliament, the members available in smaller
parliaments to perform the scrutiny task are both small in number, and as a group are
small in proportion to the number of executive and non-executive members in the
parliament.

                                               Table 1

Jurisdiction       Members available for                    % of total number in parliament
                   scrutiny work/ total
                   members*

ACT                11/17                                    64%

NT                 16/25                                    64%

Tasmania           28/40                                    70%

Queensland         63/89                                    70.8%

NSW                112/135                                  83%



4
  Section 41 of the Australian Capital Territory (Self-Government) Act 1988 states that the Chief
Minister may appoint 5 ministers for the Territory from among the Members of the Assembly.
5
  Katie Young, Democracy in Practice: A study of Australian Parliaments, unpublished paper,
Parliamentary Intern, Victorian Parliament, 1998, p3


                                                   3
C’wealth           183/226                                 81%

NZ                 92/120                                  76%

*Number. of non-ministers and excluding the Speaker


Of course, not only do the smaller parliaments have fewer members available for the
important scrutiny task, they also have the full range of responsibilities of larger
jurisdictions and have to meet the tasks of parliamentary life. These include
allocating members to fill the roles of Deputy Speaker, temporary deputy speakers,
government and opposition whips, active membership in the Commonwealth
Parliamentary Association and its activities, and membership of the ASPG and
Parliamentary Drug Law Reform Groups. Other parliaments have Amnesty groups
and friendship groups with other countries or parliaments. Whilst it is recognised that
many of these functions are not necessarily onerous and time-consuming tasks in
themselves, they are important functions for each parliament to have, and with limited
resources available, they do put pressure on members’ capacity to undertake the
scrutiny function.

Of course, the ACT Legislative Assembly is not the smallest jurisdiction in either
Australia (Norfolk Island with 9 members is) nor in the Commonwealth (the Falkland
Islands legislature, with 8 members, is the smallest). In fact, of the 184 parliaments
listed in the last publication issued by the CPA headquarters, the ACT Legislative
Assembly is listed as 172 in a list totalling 184 parliaments. Many of the Pacific
countries represented at this conference also have small parliaments, and they too face
similar pressures to those experienced by the smaller parliaments of Australia.

Like the Tasmanian Parliament, the appropriate size of the Assembly has been the
subject a great deal of discussion in recent years. The current Chief Minister has
proposed that the Assembly increase in number from 17 to 25, an announcement,
which preceded a Legislative Assembly Committee inquiry and report which
recommended an increase to 21 Members.6 I don’t intend to canvass that issue in this
paper in any great detail, but it does raise the question of what is an appropriate size
for a parliament to undertake all of its functions, especially those accountability and
scrutiny functions, and whether there is a minimum number.

     (b) Questions

It is vitally important that parliaments have processes in place for adequate scrutiny
and examination of the Executive. Nowhere is this more evident than in the ability to
question the Executive’s actions by way of a question without notice period, as well
as questions on notice.

In the ACT Legislative Assembly, the standing orders provide that question time shall
occur on each sitting day, and shall not conclude until all non-executive members

6
 Standing Committee on Legal Affairs, The appropriates of the size of the Legislative Assembly for the
ACT and options for changing the number of members, electorates and any other related matter,
Report No 4, dated June 2002


                                                  4
rising have asked at least one question. There is also the ability to ask a
supplementary question, which can be quite important if a Minister does not answer
the first question adequately, or if further information is required as a result of the
answer. I know that in other jurisdictions there are limitations on the number of
questions, in the time allocated, or in the right to ask a supplementary question. It is
also worth noting that, unlike many other parliaments around Australia where fifty per
cent of the questions come from your own backbench, 16 out of 22 questions asked
each sitting day (or approximately seventy two percent) of questions come from the
opposition or the crossbench.

So in many respects the ACT’s questions procedures do provide a good deal of
accountability. However, the small size of the parliament does place pressure on a
member (and his or her staff) to research and prepare for questions adequately,
particularly when they have multiple shadow minister responsibilities and limited
research resources. I think it is fair to say that in smaller parliaments there is a heavier
workload on members in this area, as can be demonstrated by the table below.


                                              Table 27

Jurisdiction No of questions without notice                     Average no of questions asked
             asked per year                                     per Member per year

ACT              425                                            38

NT               445                                            27

QLD              973                                            15

NSW              1239                                           19

C’wealth         2527                                           13

NZ               921                                            10


This is equally true of questions on notice, as can be shown from the table below

                                              Table 3

Jurisdiction No of questions on notice asked                    Average no of questions on
             per year                                           notice asked per Member per
                                                                year

ACT              575                                            52


7
 The figures for this table and table 3 were obtained from accessing various parliamentary websites,
annual reports, and with correspondence with the Clerks in 2003, and represent questions asked in
2002-03


                                                  5
NT             40                                    2.5

QLD            2148                                  34

NSW            1219                                  11

C’wealth       2683                                  14

NZ             14,923                                163


Of course there are a range of other devices available to members to raise issues and
check government actions. These include raising matters of public importance (some
parliaments use the term urgency motions), replying to ministerial statements, raising
concerns when debating legislation, and adjournment debates.

To demonstrate the number of speeches that an average non-executive MLA and a
Minister makes per sitting day, I had the Hansard office gather some statistics on how
many speeches were made by MLAs in 2005. The Assembly sat for 45 sitting days in
2005, and a total of 2,471 speeches were made (this figure does not include question
time or comments on papers as they are presented). Breaking that figure up, on
average a Minister made 3.5 speeches per sitting day, and each non-executive
Member made 3.7 speeches per sitting day. Whilst it is true that some of those
speeches were probably made whilst considering legislation in the detail stage,
nevertheless that still constitutes a large workload for any member in terms of
preparing speeches, and responding to issues that arise in the Chamber. I am sure
Speakers and Clerks from some of the larger parliaments would be horrified if each of
the Ministers and Members spoke on a similar number of occasions- they would be
sitting for very long periods!

     (c) Committees

Committees also play an important role in the accountability process. As in other
jurisdictions, the ACT Legislative Assembly committee structure has taken on various
forms over the years. In addition to the normal housekeeping committee that deals
with standing orders, the library, ordering of business for the Assembly, and members
entitlements (which I chair), the Assembly has five standing committees covering the
functional areas of responsibility (health, education, planning and environment, legal
affairs, public accounts). These committees also cover the key roles of examining the
executive, and the scrutiny of both bills and subordinate legislation.

The standing orders provide that each committee formed must reflect as nearly as
practicable the proportion of all groups in the Assembly. As a general rule each of the
standing committees has 3 members, although only recently the Assembly appointed a
select committee of 6 members to examine the estimates contained in the annual
budget.

So, although the Assembly has the fundamentals in place to ensure accountability and
scrutiny of the executive using the committee system, the small size of the Assembly
does have a limiting effect on this process. For example, in the current Assembly


                                          6
there are 3 government backbenchers. Each of these backbenchers is a chair of a
standing committee, and two of them are also chairs of select committees. In addition
to their chair responsibilities, they are also members of other committees. To illustrate
the point, one government MLA has the following committee responsibilities:

        Chair of the Standing Committee on Health and Disability
        Member, Standing Committee on Public Accounts
        Deputy Chair, Standing Committee on Legal Affairs
        Member, Standing Committee on Administration and Procedure
        Member, Select Committee on Estimates 2006-07


In previous years there has been the occasion where there has been only one
government backbencher who has had to attempt to be an effective and productive
member on up to four or five committees8. Where there exists such a high committee
workload it leads to questions about how to adequately resource committees to ensure
that they are able to function effectively and produce results of a high standard. It can
also lead to short cuts being taken and at times to some extent this places pressure on
the integrity of the system, as well as the trust between members that is essential if the
committees are to work effectively in carrying out their important function.

One pleasing feature of the Assembly committee system is that, despite the fact that
there is majority government, two of the Assembly committees (Public Accounts and
Legal Affairs) are chaired by Opposition MLAs and the government does not
command a majority on either of those committees. This means that those
committees, that have the ability to self refer matters, can, if they so choose, inquire
into and report on matters (within their terms of reference) on which the government
may not wish the torch of parliamentary scrutiny shone! The other feature of the
Assembly committee system is that every year the Budget is referred to a select
committee (which involves approximately two weeks every year being spent on issues
affecting every aspect of government operation on which money is appropriated), and
annual reports of government agencies are referred annually to each of the relevant
standing committees, which also involves scrutiny as to how well the executive has
performed in spending taxpayers’ money.



Conclusion

Parliaments, especially unicameral parliaments, need to ensure that they are fulfilling
their role in scrutinising the actions of the Executive. This is especially so when there
is a government majority, in the ACT Legislative Assembly’s – only the second time

8
  The most extreme example of the difficulties that can arise occurred in the Fourth Assembly when a
minority government was formed by the six members of the Liberal Party, with the support of one
independent (who held a ministerial portfolio) leaving only one government backbench member.8[2] As
a result the sole backbencher was a member of five of the six standing committees and of seven select
committees (out of ten formed prior to February 2001). The Speaker, in addition to chairing the
Standing Committee on Administration and Procedure, was a member of one standing committee and
three select committees.



                                                  7
this has occurred. The accountability mechanisms that are manifested through the
various procedures and standing orders of the parliament need to be utilised
effectively to ensure that the scrutiny role is effectively undertaken.

 As can be seen from the above, despite the pressures facing members in the small
legislature, and the demands of performing their role in a parliament, members of the
ACT Legislative Assembly appear to be using the tools available to them (i.e.
questions with and without notice and the committee system) very effectively to
ensure that, notwithstanding there is no upper house, the Executive is called to
account and that transparency is a strong feature in the role of the legislature.

In conclusion, even though the ACT may be similar to Tasmania in having too many
generals, colonels, majors and captains, relative to the number of privates, I think it is
fair to say that the numbers demonstrate the privates here in the ACT are working
extremely hard to keep the officers accountable to their electors!




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