Parliament and the Executive: traditions of the first day’s sitting
Today I spoke in Parliament about a Bill that raises interesting issues about the history of Westminster Parliaments and the relationship between Parliament and the Executive Government. This is what I said:
Statute Law Repeals Bill 2014
MR CLARK (Box Hill) — This is a bill that in schedule 1 proposes to repeal the various past years appropriation acts and Parliament appropriation acts. The only issue that arises in relation to the content of the bill is whether those provisions are fully spent. It is fortunate that the Scrutiny of Acts and Regulations Committee has been able to meet within the limited time that was available to it, given that this bill was included in the government business program. The committee has been able to report to the house and has included in that report a certificate from John Butera, first deputy chief parliamentary counsel, indicating that the relevant department has confirmed that the acts proposed to be repealed by the bill are now spent and can be safely repealed. The opposition is prepared to accept that certification and the government’s view and, therefore, not oppose the bill.
One matter that is worthy of consideration in relation to this bill is whether it meets requirements of standing order 5(2) in relation to proceedings on the first day of a new Parliament. That standing order requires that a bill is read a first time:
… to reassert and maintain the right of the house to deal with its own business before the Governor’s business.
This practice has been observed for many centuries in Westminster parliaments. It symbolises the right of parliaments to deal with the business that the elected representatives of the community wish to deal with and not solely with the business that the Crown or the executive wishes the Parliament to deal with. As the 24th edition of Erskine May puts it:
… it is the practice in both houses to read some bill a first time pro forma in order to assert their right of deliberating without reference to the immediate cause of their summons …
However, this practice has over the years lost some of its original character and meaning in Victoria. It appears to have come under particular pressure as a result of both the constitutional changes and changes to standing orders that were made in the earlier part of last decade. I believe it should now be considered by the Standing Orders Committee with a view to determining whether either the standing orders or practice of the house should be amended, whether to strengthen the practice or to abandon it, or to confirm it in its current form.
Looking at the history, Fact Sheet G21 published by the House of Commons says:
The first occasion on which we have evidence of the house taking the first reading of a bill … before any other business is in 1558. In 1604, the practice was codified by a resolution: ‘That the first day of sitting in every Parliament, some one bill and no more receiveth a first reading for form sake’.
And this resolution of 1604 can be found in the relevant House of Commons Journal: volume 1, 22 March 1604.
The practice has been the subject of explicit reference and debate in the House of Commons on several occasions, particularly in times of conflict between the Crown and the Commons when members wanted to raise some particular point of issue or controversy immediately upon resumption of the Parliament.
In the course of debate in 1676 it was established that the one bill should receive its first reading prior to consideration of the King’s speech, and that has been the practice followed where the practice has been observed since.
In Victoria the former standing orders that were replaced in 2004 provided in the rules of practice, item 11:
Before the Governor’s speech is reported to the house by Mr Speaker some bill is read a first time pro forma.
In 1999, and as far as I am aware in previous Parliaments, the practice was for one bill only to receive a first reading ahead of the house receiving the report of the Governor’s speech. For example, on 3 November 1999, then Premier Bracks moved:
In accordance with the usual practice and in order to preserve the privileges of the house, I move:
That I have leave to bring in a bill to make minor amendments to the Administration and Probate Act 1958.
Current practice since 2003 has been for the government to introduce and have the first reading of a number of bills prior to the reporting of the Governor’s speech. In 2003 and 2006 a short and technical bill was the first of those so introduced and read a first time, and it was introduced by the Premier with words similar to those I cited earlier. However, that practice was not followed in 2010 or indeed last year. In 2010 no short and technical bill was introduced on the first day of sitting, and last year the Statute Law Repeals Bill, which we are now considering, was the last of four bills introduced and read a first time prior to the reporting of the Governor’s speech. The bill was not introduced with words referring to ‘usual practice’.
As a result it seems to me that while the literal requirements of standing order 5(3) have probably been complied with, it could well be argued that the spirit and symbolism of the standing order have been lost. Symbols are very important, but a symbol is only important if people know what it stands for. That is why stories are told and explanations are given. That is why visitors and members are told about the importance of the mace as a symbol of authority of the Speaker and told about why the Governor’s speech is given in the Legislative Council, harking back to the days when Charles I entered the Commons and sought to arrest members who had defied him.
Similarly, the first reading of a bill before the house considers that the Governor’s speech symbolises the fact that assemblies of the realm are entitled to deal with their own business as well as the business which the Crown, or the executive government, desires the Parliament to consider. Consideration of grievances and problems that subjects or citizens of the realm wish to raise is important, not just the needs and plans of the Crown or of the executive government. That is a matter that has been exemplified as far back as Magna Carta — the 800th anniversary of which we celebrate this year — if not earlier.
It is well worth considering whether we want to retain, revive or strengthen the symbolism of the house commencing its own business before considering the business that the executive wishes to place before it. This is not a matter that can be considered in detail in this debate; however, I would make the suggestion that if we are going to retain this symbol and reminder of parliamentary history and the struggles that have given us the Westminster democracy we enjoy today, we should make some adjustments to make the symbolism more consistent with what it is intended to represent and thus to enable it to be better understood and appreciated.
For example, in the House of Commons the first reading of the bill is not moved by a minister but is simply taken to have been done by the house as a whole. Also the bill that is first read is neither part of government business nor a bill that is a matter of current political dispute. In the Commons the same standard bill, the Outlawries Bill, is used in each Parliament and never progresses beyond the first reading. In the Victorian context, a bill such as the bill before us could perhaps remain as a suitable bill. However, these and other options are ones that may well be appropriately considered in detail by the Standing Orders Committee.
In the meantime, the bill before us would appear to at least formally satisfy standing order 5(3), although it has not been explicitly characterised as such. The only way in which it does so any more than any of the other bills that were put before the house is that it is purely technical it its terms.
(For original Hansard report, see http://hansard.parliament.vic.gov.au/isysquery/f6fdbbb7-590d-4db3-b957-3b2ed52de2bb/71/doc/)