Speaker of the House should not be a party's political pawn
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Speaker of the House should not be a party's political pawn

The refusal by Immigration Minister Scott Morrison to answer questions about the government's refugee interception policies posed by a Senate committee, citing ''operational confidentiality'', exposes the weakness of parliamentary government as practised in Australia.

Our constitution is based on the idea that the executive is responsible - that is, answerable - to the legislature. Yet the weakness in the system is that ministers routinely refuse to answer questions put to them in Parliament and when appearing before parliamentary committees.

Speaker Bronwyn Bishop has drawn criticism for her lack of control in the House of Representatives.

Speaker Bronwyn Bishop has drawn criticism for her lack of control in the House of Representatives.Credit:Alex Ellinghausen

What can be done to strengthen the hand of Parliament in the face of executive recalcitrance?

First, we should reform the institution of the Speaker of the House of Representatives, who can - and should - direct ministers to answer questions. Unlike in Britain, we do not have a truly independent Speaker. Governments - both Coalition and Labor - have used their majorities in the House to control the office that is supposed to control them.

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During the 1996 election, John Howard promised he would ensure a ''completely independent Speaker,'' yet within two years of coming to power the government forced Speaker Bob Halverson to step down after becoming frustrated at his impartiality in enforcing discipline on both Coalition and Labor MPs. The Howard government also didn't like the increased opportunity for scrutiny by Halverson allowing opposition MPs to ask supplementary questions of ministers when answers were evasive. Interestingly this practice - revived after the 2010 election - has been ended by the Abbott government.

Labor too has used the speakership as a political football: in 2011 the then government pressured Speaker Harry Jenkins into resigning in order to gain an additional vote on the floor of the House, and installed Peter Slipper.

Things are likely to be no better under Speaker Bronwyn Bishop (pictured) who, in a recent ABC interview, denied that the Coalition bore any of the blame for poor standards of behaviour in the last Parliament. That attitude bodes ill for neutrality in the current Parliament.

Also unfortunate is Bishop's decision to continue to attend Liberal party room meetings - it being notable that Anna Burke stopped attending Labor caucus after her appointment.

The office as it exists in Australia is a far cry from Britain, where a Speaker relinquishes ties to his or her party, does not sit as a member of his or her caucus, and is expected to be completely neutral in his or her treatment of MPs. One way for our Speaker to become truly independent - and thus more likely to get ministers to answer questions - would be to require a two-thirds majority of Parliament to elect or to dismiss a Speaker.

Another would be to adopt the proposal made some years ago by Kevin Rozzoli, former Speaker of the NSW Legislative Assembly, who suggested that once chosen, the Speaker should become a ''member at large'', serving a notional electorate until retirement, while his or her seat would automatically be filled by a nominee of the Speaker's party.

The seat would then be contested in the usual way at the next election. This would immediately elevate the Speaker above party politics, without depriving his or her constituents of representation.

So far as defiance of parliamentary committees is concerned, the problem is that both the Coalition and Labor have been careful never to establish a legal precedent that ministers are required to answer questions or produce documents, even though most authorities agree that under the common law, the legislature has every right to subpoena members of the legislature and to penalise them for contempt if they refuse to co-operate.

It is in the obvious interests of both the major parties that neither of them should establish a legal precedent to that effect, as the rule would of course eventually be used against the party that won the case.

The problem is compounded by the fact that individual MPs and senators cannot institute contempt proceedings - only the whole House or Senate can - and so minor parties are left without a mechanism to force ministers to comply with requests for information.

A solution would be to change the law - which could be done by an ordinary act rather than by changing the constitution - so as to allow individual members of committees to subpoena witnesses and to launch legal proceedings in order to secure compliance.

The law should also provide that if ministers claim that disclosure of the material requested would prejudice national security (known as ''public interest immunity'') the issue should be tested before the courts. This is common in relation to litigation, and there is no reason why it should not also apply to the workings of government.

Such a system operates in the United States, where the fact that congressional committees have the power to test immunity claims in the courts (using in camera proceedings if necessary) has, in the vast majority of cases, led to the executive giving the information required.

It is not acceptable that in Australia government ministers should be the final arbiters of what information they should or should not disclose to the Parliament to which they are responsible.

Bede Harris is a senior lecturer in law at Charles Sturt University, and is the author of Freedom, Democracy and Accountability - A Vision for a New Australian Constitution.

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