Leashing the PUPs in the Senate
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It is a big call for any new
parliamentarian to back their constitutional knowledge over that of a
professional who has served the Senate with distinction for decades,
writes Anne Twomey.
Clive Palmer's attack on the parliamentarian to back their constitutional knowledge over that of a
professional who has served the Senate with distinction for decades,
writes Anne Twomey.
Clerk of the Senate for giving advice upon his proposed amendments to
the carbon tax repeal bill appears to show a lack of understanding of
the Constitution and the role of the Parliament under it.
Last
week, the Clerk of the Senate, Rosemary Laing, apparently advised the
Palmer United Party that its amendment to the carbon tax repeal bill
ought to be initiated in the House of Representatives, rather than the
Senate, because it might be regarded as imposing a tax. This was to
comply with rules set out in the Constitution.
Clive Palmer reportedly responded by saying she should "get out of that job"
if she was not prepared to act on his instructions. Yet it is an
essential part of the clerk's job to advise senators upon compliance
with the Constitution and the procedural rules of the Senate, rather
than simply taking instructions.
The Constitution establishes the
institutions of government, such as the Parliament and the courts,
confers powers upon them, and imposes limits on those powers. In most
cases those limits can be enforced by the courts if someone brings a
constitutional challenge. In some cases, however, the Constitution
imposes the responsibility upon key actors, such as parliamentarians or
ministers, to respect and apply the rules of the Constitution.
When
it comes to the powers of the Senate in relation to money bills, there
is a very delicate balance between the role of the courts and the role
of the Houses in applying and enforcing the rules.
Section 53 of the Constitution
sets out most of these rules. It says that bills imposing taxation
shall not originate in the Senate. They must first be passed in the
House of Representatives. This is because of the principle that the
power of the purse lies in the hands of the representatives of the
people in the Lower House. For the same reason, section 53 also says
that the Senate may not amend any bill so as to increase any proposed
charge or burden on the people.
Difficult questions sometimes
arise as to whether a legal requirement that someone pay an amount to
the government is really a tax or a penalty. Section 53 says that a bill
is not to be regarded as imposing taxation if it just imposes a
pecuniary penalty or a fine. Mr Palmer may argue that this is all his
party's amendment was proposing to do - to impose a penalty. However,
there is an enormous amount of complex law on the question of whether an
exaction of money amounts to a tax or a penalty, so one needs to be
very cautious in this area.
So far, the High Court has regarded
section 53 as 'non-justiciable'. This means that it will not enforce the
requirements of section 53. Rather, it is the responsibility of the
members of the Houses of Parliament to abide by these rules.
That
does not mean that politicians can do what they want because the courts
will not enforce the rules. On the contrary, it means that politicians
are under a very solemn constitutional obligation to comply with these
rules.
Members and senators rely on the independent advice of the
clerks to ensure that they are complying with the Constitution and
meeting their constitutional obligations. The clerks have long
experience in the intricacies of money bills and their advice is
traditionally given great respect. It is a big call for any new
parliamentarian to back his or her constitutional knowledge and
parliamentary experience over that of a professional who has served the
Senate with distinction for decades.
There are also other good
reasons to be cautious. First, it may be that if parliamentarians were
to start flouting section 53 of the Constitution, the High Court might
change its mind and seek to enforce its provisions.
More importantly, the High Court has held that it will enforce section 55 of the Constitution.
This provision states that laws imposing taxation shall deal only with
the imposition of taxation and "any provision therein dealing with any
other matter shall be of no effect". The consequence of this provision
is that if the Palmer United Party inserted into the bill a provision
that imposed taxation, it could torpedo the repeal of the carbon tax.
Hence the need for caution and to listen to wise and experienced heads.
The
senators of the Palmer United Party will find, in time, that in order
to achieve anything in the Senate, they are going to be heavily reliant
on the guidance and advice of the clerks and other officials of the
Senate. Rather than railing against it, a better approach would be to
respect it and to ask what alternatives would best achieve their goals. A
constructive approach is more likely to succeed than a destructive one.
Anne
Twomey is a Professor of Constitutional Law at the University of Sydney
and in the 1990s was secretary of the Senate Legal and Constitutional
Committee. View her full profile here.
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