Fortunately in my experience
these procedures are not commonly used in the Assembly with respect to debating bills but, nonetheless, the procedures do allow
it.To underscore this, since 1996 only three bills have been declared urgent and since 2000 no bills have been the subject of a closure motion.
Committee review
Benchmark 3.2.1 sets out that, “there shall be a presumption that the legislature will refer legislation to a committee, and any exceptions must be transparent, narrowly- defined, and extraordinary in nature”. The Assembly does not comply with this measure if it is taken to mean that all bills are referred for substantive review on the policy aspects of the legislation by stand- ing, select or committee-as-whole type apparatus. The Assembly does, however,
refer all legislation to its Standing Committee on Scrutiny of Bills and Subordinate Legislation which amongst other roles, evaluates and reports on whether legislation unduly trespasses on personal rights and liberties, whether legislation inappropriately delegates legislative powers and insufficiently subjects the exercise of legislative power to parliamentary scrutiny. It is not the remit of the committee to form a view as to the merits or otherwise of the public policy dimensions expressed in the legislation. To refer each piece of legislation for substantive review along these lines could result in legislative grid- lock and has not been seen as desir- able by any members of the Assembly of whom I am aware.
Independent employment arrangements
Benchmark 5.1.2 sets out that,“the legislature, rather than the executive branch, shall control the parliamen- tary service and determine the terms of employment”. The arrangements in place in
the A.C.T. do not conform to this benchmark in a number of key respects. Firstly, the staff employed by the A.C.T. Legislative Assembly Secretariat to support the legislature is employed under the Public Sector
Management Act 1994 and are A.C.T. Government (Executive)
employees.The staff is bound by the A.C.T. Public Service Code of Conduct (although there is also a Secretariat-specific code of conduct) and their rates of pay and conditions flow from template agreements negotiated at the whole-of-govern- ment level by the Executive. However, there are a number of
provisions in both the Public Sector Management Act and the Financial Management Act which identify the independence of the Clerk (the administrative head of the Secretariat) and his or her staff. It remains an open question as to whether it is appropriate to devise a stand-alone legislative framework which covers Secretariat staff. While there would be advan-
tages in terms of entrenching the separation of the functions per- formed by Secretariat staff from
benchmarks being met) – an A minus if you will – this does not mean that we can rest on our laurels.”
performance to be a high standard (80 out of 87
“...While I considered the Assembly’s
Mr Berry,MLA
those of the wider civil service, there would also be considerable administrative overheads involved in developing stand alone industrial and governance-related policies of the types already in place at the whole-of-government level.
Code of conduct for staff Benchmark 5.4.3 provides that, “all staff shall be subject to a code of conduct”. Legislative Assembly Secretariat staff and MLAs are also subject to a separate code of conduct. Although recommended by the
Assembly’s Standing Committee on Administration and Procedure a number of years ago, the Assembly has not yet implemented a code of conduct for Members’ staff. I am
supportive of a code of conduct for Members’ staff which sets out gen- eral principles and standards of behaviour to be observed. Although there are always politi- cal sanctions that can be levied against MLAs and their staff who do not observe general community standards of behaviour, I believe that a specific code for staff, endorsed by Members and given continuing effect by the Assembly, would pro- vide an explicit covenant that more legitimately binds Members’ offices to proper standards.
Committee oversight Benchmark 7.2.2 provides that, “oversight committees shall provide meaningful opportunities for minor- ity or opposition parties to engage in effective oversight of government expenditures.Typically, the public accounts committee will be chaired by a Member of the opposition party”.
This convention has been con- sistently observed until the most recent Assembly where the Opposition Chair was deposed by a vote of the committee (made up of three members – one Opposition member, one government member and one member of the crossbench). This was the legitimate prerogative of the Committee. However, the Assembly’s commitment to this con- vention is second to none when compared to Parliaments in other state and territory jurisdictions. While the rationale behind this benchmark is sound, the govern- ment’s expenditure and revenue decisions are subject to rigorous scrutiny through a public accounts committee headed by an opposition
member.The fact that the Assembly’s public accounts commit- tee replaced the opposition chair with a crossbench chair (a member of the Greens) rather than a govern- ment chair shows that the Assembly lives up to at least its spirit. Since self-government in the
A.C.T., there have been twelve chairs of the public accounts com-
mittee.The first ever chair of the committee was a member of the government, while the current chair is a member of the cross bench. In between, however, 10 of these have been members of the opposition
The Parliamentarian 2008/Issue Four 307
Benchmarks for Democratic Legislatures
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