LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

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LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

Select Committee on Opening Parliament to the People

Report on Opening Parliament to the People

March 2017

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Chair’s Preface

This report proposes fundamental changes to how the Assembly works to open it up to greater involvement by the people of the Northern Territory.

The Select Committee on Opening Parliament to the People was established as one of the first orders of business of the 13th Assembly. The Assembly asked the Committee to look at how the parliament can work better and be more open, transparent and accountable to the people of the Northern Territory.

The greatest change proposed by the Committee is to refer Bills to Assembly committees for public consultation. Committee inquiries into Bills will give any interested person or group the opportunity to make a submission and, where required, to speak to the committee. This will put stakeholders’ views onto the public record and inform the Assembly’s consideration of whether to make the proposed law. This will result in better laws as Members will know community views when amending and passing Bills.

The success of this change depends upon allowing people sufficient time to raise their concerns with the committees. On this point the Queensland experience is instructive.

The Committee heard unanimous support from Members of the Queensland Parliament for similar reforms they adopted in 2010. However, over time the effectiveness of this consultation was eroded by the Parliament not allowing committees sufficient time to hear from the community. This resulted in amendment of their Constitution last year to require a minimum period of six weeks for committee inquiries into Bills.

Committees enable the Assembly as a body to consult with the community. They provide the opportunity for people to put their views on the Assembly’s record and speak to the Assembly through committee hearings. The report proposes establishing two portfolio scrutiny committees which would be responsible for monitoring Government performance under each Ministerial portfolio. In addition to examining Bills, these committees would conduct inquiries into issues of public concern and perform a range of other scrutiny functions, such as alerting the Assembly to any impact Bills may have on people’s rights. This will greatly increase opportunities for people to be active participants in the Assembly’s deliberations in a range of areas.

The report also recommends strengthening how the Assembly deals with petitions people make to the Assembly by providing for petitions signed by 1,000 people to be debated and for responses to petitions to be debated at the request of four Members.

This will give greater prominence to the concerns raised by petitioners.

The Committee has also recommended a number of changes regarding the recognition of Traditional Owners, the ongoing reform of Question Time, improving the information services available to Members and ensuring the Assembly conforms with recommended benchmarks for democratic institutions.

The Committee’s recommendations were initially drawn from a range of earlier discussion papers which the Committee put into a Green Paper on Parliamentary Reform released in October 2016. The Committee received 13 submissions in

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response and heard from nine witnesses at a public hearing last December. All submissions and witnesses were broadly supportive of the proposed changes while making further proposals for change. The Committee also sought comment from the Leader of Government Business, the Hon Natasha Fyles MLA, on its draft recommendations to give the Committee the opportunity to address any concerns the Government might raise before reporting to the Assembly. The Committee then met with the Minister to reconcile key differences of opinion. I thank the Minister for the assistance she gave the Committee and her open approach to improving how the Assembly works.

On behalf of the Committee, I would like to thank all who submitted or appeared before the Committee. Their feedback has been invaluable and resulted in a number of changes to the Committee’s proposals.

I would also like to thank the members of the Committee for their commitment to championing a more open, transparent and responsive Assembly for all Territorians.

Jeff Collins MLA Chair

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Committee Members

Mr Jeff COLLINS MLA: Member for Fong Lim

Party: Territory Labor

Committee Membership

Standing: Legal & Constitutional Affairs, Subordinate Legislation and Publications

Select: Opening Parliament to the People Chair:

Opening Parliament to the People, Legal &

Constitutional Affairs, Subordinate Legislation and Publications

Mrs Robyn LAMBLEY MLA: Member for Araluen

Party: Independent

Standing: Standing Orders

Select: Opening Parliament to the People Deputy Chair: Opening Parliament to the People Ms Ngaree AH KIT MLA: Member for Karama

Standing: Standing Orders

Select: Opening Parliament to the People Mr Gary HIGGINS MLA: Member for Daly

Party: Country Liberals

Parliamentary Position: Leader of the Opposition Committee Membership

Standing: Standing Orders, House

Select: Opening Parliament to the People Mr Chansey Paech MLA: Member for Namatjira

Parliamentary Position: Deputy Speaker Committee Membership

Standing: House

Select: Opening Parliament to the People Mr Gerry WOOD MLA: Member for Nelson

Party: Independent

Standing: Privileges

Select: Opening Parliament to the People

Mrs Kate WORDEN MLA: Member for Sanderson

Standing: Public Accounts

Select: Opening Parliament to the People

Chair: Public Accounts

On 15 February 2017, Member for Stuart, Mr Scott McConnell MLA was discharged from the Committee and replaced by Member for Namatjira, Mr Chansey Paech MLA.

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Committee Secretariat

First Clerk Assistant: Russell Keith Committee Secretary: Julia Knight Senior Research Officer: Elise Dyer Administration/Research Officer: Annie McCall Administration Assistant: Kim Cowcher

Contact Details: GPO Box 3721 DARWIN NT 0801 Tel: +61 08 8946 1485

Email: [email protected]

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Terms of Reference

1. A Select Committee on the subject of Opening Parliament to the People be appointed comprising the Members for Fong Lim, Stuart, Sanderson, Karama, Daly, Nelson and Araluen.

2. The Committee is to inquire into options for parliamentary reform, particularly increased participation in the legislative process and policy debates and improving the effectiveness of Question Time, having regard to, among other things, the Parliamentary Reform - Opening Parliament to the People (Labor Policy Discussion Paper) and Restoring Integrity to Government – Trust and Integrity Reform Discussion Papers published by the then Opposition ahead of the Northern Territory Election and the Discussion Paper on Assembly Committee Reform tabled by the Speaker on 25 August 2015 and other proposals which the 12th Assembly Standing Orders Committee deferred for consideration of the 13th Assembly.

3. The Committee is to report to the Assembly by 31 March 2017.

Resolved by the Legislative Assembly on 19 October 2016

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Recommendations

Recommendation 1

The Committee recommends that the Assembly adopts the proposals set out in its Green Paper for establishing portfolio based scrutiny committees and referring Bills to those committees, subject to the further recommendations set out below, by agreeing to the draft Sessional Orders at Appendix B of this report.

The Committee recommends that the Assembly establish two portfolio scrutiny committees with seven Members with the membership of the committees reflecting the composition of the Assembly.

The Committee recommends that on tabling in the Assembly all reports from statutory bodies, and in particular the Electoral Commissioner’s Election Reports, should stand referred to the relevant scrutiny committee for inquiry and report.

The Committee recommends that there be portfolio scrutiny committees called the:

a) Justice and Families Committee that covers the portfolios of Children, Attorney- General and Justice, Health, Housing and Community Development, Education, and Territory Families; and

b) Finance and Planning Committee that covers the portfolios of Chief Minister, Aboriginal Affairs, North Australia, Police, Fire and Emergency Services, Trade, Business and Innovation, Treasurer, Infrastructure, Planning and Logistics, Essential Services, Public Employment, Primary Industry and Resources, Environment and Natural Resources, Tourism and Culture and Corporate and Information Services.

The Committee recommends that:

a) the Assembly commence sittings on Wednesdays at 2.00 pm to enable the portfolio scrutiny committees to conduct business on those mornings, and

b) in addition to their Wednesday morning meetings, the portfolio scrutiny committees adopt the practice of holding public hearings on Bills on the Mondays of weeks in which the Assembly sits as far as practicable.

The Committee recommends that the portfolio scrutiny committees make use of subcommittees as provided under the Standing Orders to assist in the management of their workload.

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The Committee recommends that the provision for participation by Members who are not on a committee at committee meetings under Standing Order 193(2) be extended to include the private meetings of the committee.

The Committee recommends that the Assembly allows for the substitution of Members of a committee for specified periods of time or inquiries.

The Committee recommends that the Chair of the portfolio scrutiny committees be a Government Member.

The Committee recommends that all Bills be required to be referred to a portfolio scrutiny committee for a period spanning at least three sittings of the Assembly (noting that the committee may complete its inquiry at any time during the period of referral), unless the Assembly declares the Bill to be urgent.

The Committee recommends that the Government develops a system for providing briefing materials to the relevant portfolio scrutiny committee on the introduction of Bills in consultation with the committees.

The Committee recommends that the portfolio scrutiny committee have a general power to initiate inquiries within their portfolio areas.

The Committee recommends that the Assembly require any Member who is introducing a Bill to table a statement on whether the Bill is compatible with Human Rights, as defined in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cwlth).

The Committee recommends that the Assembly provide that any person or organisation aggrieved by subordinate legislation operating in contravention of fundamental legislative principles be able to make a complaint in writing to the relevant portfolio scrutiny committee and, unless the committee unanimously agrees not to proceed with the complaint, the committee will give the complainant the opportunity to address the committee.

The Committee recommends that the Assembly appoint an Estimates Committee each year to consider the annual appropriation Bill, Government owned corporations’

statements of corporate intent, and annual reports.

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The Committee recommends that the Government consider amendments to the Audit Act to enable the Auditor-General to audit Agencies’ performance information.

The Committee recommends that the written questions system under Chapter Eight of the Standing Orders be the only system used for questions in advance for Estimates hearings.

The Committee recommends that the time within which a Minister must respond to written questions should be modified so that any written question asked within a week of the introduction of an appropriation Bill must be responded to at least one clear day before the first day of the Estimates hearings.

The Committee recommends that the Estimates Committee:

a) holds a total of 60 hours of hearings

b) determine the proportion of those hours to occur on the Appropriation Bill and Government owned corporations in June and on Annual Reports in November during the days allocated in the Assembly’s meeting schedule.

The Committee recommends that the Government provide appropriate budget supplementation to the Department of the Legislative Assembly to provide for adequate secretariat support, committee expenses and a community liaison officer.

The Committee recommends that the Government provide funding to enable independent recording and broadcast of video from the Litchfield and Ormiston rooms.

The Committee recommends that the Assembly require the portfolio scrutiny committees to each produce an annual report of their activities.

The Committee recommends that:

1) the Assembly provides that any petition conforming with Standing Orders with more than 1,000 signatures be set down on the Notice Paper as an Order of the Day to note the petition, unless the Speaker determines that it is frivolous, vexatious, has already been debated, would anticipate a debate, or should be combined with another petition, with the debate to comprise two Members

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speaking for up to five minutes each and two Members speaking for up to three minutes each,

2) the Assembly provides that each Minister’s response to a petition tabled in the Assembly is set down on the Notice Paper for the following day only to be called on after the consideration of ‘Committee reports, Auditor-General’s reports and Government responses’ whereupon if four Members rise in their place in support of putting the question ‘that the response be noted’ then the debate will proceed with two Members speaking for up to five minutes each and two Members speaking for up to three minutes each,

3) the Assembly requires that only people residing in the Northern Territory may petition the Assembly, and

4) the Standing Orders Committee investigate the options for enabling electronic petitions through the Assembly’s website.

The Committee recommends that the Standing Orders Committee review the operation of the October 2016 reforms to Question Time after 12 months and consider whether further reforms would contribute to a more effective Question Time.

The Committee recommends that Standing Order 7 be amended to provide for an Acknowledgement of Country in accordance with an order of the Assembly.

The Committee recommends that the Assembly refer to the Standing Orders Committee the review of procedures for Ministers to report matters to the Assembly and the debate of important issues in the Assembly, including whether debates on ministerial statements should be subject to global time limits and whether there should be additional processes for debating substantive issues of public policy.

The Committee recommends that the Standing Orders Committee consider options for making the Assembly more closely align with the Latimer House Guidelines for the Commonwealth and the Commonwealth Parliamentary Association Benchmarks for Democratic Legislatures with respect to an independent parliamentary service and parliamentary appropriation and whether the Assembly should undertake a periodic review of its compliance with these guidelines.

The Committee recommends that the House Committee inquire into and report on the provision of adequate financial analysis services for Members, including whether such services should be provided by a Parliamentary Budget Office.

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The Committee recommends that the House Committee investigate the appropriate level and model of library services for Members of the Legislative Assembly, having regard to services provided in other jurisdictions, the research support needs of Members, and the need for independence in Members’ research support.

The Committee recommends that the Standing Orders Committee review the operation of those recommendations of this Committee adopted by the Assembly after 12 months with a view to making recommendations for improvement and the incorporation of effective reforms into the Standing Orders before the end of this Assembly.

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Chapter 1 Background

1.1 The Legislative Assembly established the Select Committee on Opening Parliament to the People on 19 October 2016 to explore options for parliamentary reform with particular reference to increasing participation in the legislative process and policy debates and improving the effectiveness of Question Time.

1.2 The Committee issued a Green Paper on Parliamentary Reform (the Green Paper) on 26 October 2016 to seek comment on a range of proposals for parliamentary reform and additional ideas on how to best open parliament to the people, and called for submissions to the Committee by 28 November 2016.

1.3 In accordance with the reference from the Assembly, the Committee developed the Green Paper from proposals in Parliamentary Reform - Opening Parliament to the People (Labor Policy Discussion Paper) and Restoring Integrity to Government – Trust and Integrity Reform Discussion Paper published by the then Opposition ahead of the Northern Territory election, the Discussion Paper on Assembly Committee Reform tabled by the Speaker on 25 August 2015, and other proposals which the 12th Assembly Standing Orders Committee deferred for consideration of the 13th Assembly.

1.4 The Green Paper proposals included:

• Establishing two portfolio based scrutiny committees to inquire into and report on:

• Any matter referred by the Assembly or a Minister

• The provisions of Bills and subordinate legislation (eg, regulations)

• The impact of Bills and subordinate legislation on rights, liberties and the institution of Parliament

• Public accounts and Auditor-General’s reports

• Performance, operation and Annual Reports of Government Agencies

• The annual Budget Appropriation Bill and Estimates

• Referring all but urgent Bills to the scrutiny committees for community consultation.

• Allocating Wednesday mornings of sitting weeks for committees

• Allocating the remainder of Wednesdays to non-Government questions and General Business

• Allowing debate of petitions with more than 500 signatures

• Reducing restrictions on supplementary questions

• Reviewing prayers and inclusion of an Acknowledgement of Country.

1.5 The Committee received 13 submissions which provided feedback on the specific proposals contained in the Green Paper as well as additional reform options for

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consideration by the Committee and Assembly to further enhance the parliamentary process and increase public consultation. The Committee held public hearings on 5 December 2016 where it heard evidence from nine witnesses.

1.6 The Committee reviewed the parliamentary systems of a number of Westminster Parliaments, in particular those with portfolio scrutiny committees, to identify best practices and options for increasing public participation in the legislative and committee processes. The Committee undertook a visit to the Queensland Parliament on 9 November 2016 and met with Members of all parties to discuss their views and experience of the Queensland parliamentary reforms and the effectiveness of their committee system.

1.7 The Committee then developed 27 draft recommendations, which it referred to the Leader of Government Business for comment on 20 February 2017. The Leader of Government Business provided feedback on 10 March 2017. The Committee met with the Leader of Government Business on 22 March 2017 to discuss this feedback.

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Chapter 2 Participation and Review

2.1 Core functions that committees perform for parliaments include interaction with the community, scrutiny of Government activity, and review of legislation.

Participation within a representative democracy

2.2 The Northern Territory (Self Government) Act 1978 (Cwlth) provides for a system of representative government, where the Legislative Assembly comprising elected Members (s 13) has the power to make laws for the peace, order and good government of the Territory (s 6) with decisions determined by the majority of Members voting (s 27).

2.3 As Members are elected to make decisions on behalf of electors, it is vital that we maintain communication with our electors. Members do this individually through our participation in the community and our electorate offices, and for party members through our political parties.

2.4 The meetings of the Assembly give Members the opportunity to raise issues on behalf of the electors. In the Chamber Members make arguments on how best to meet the needs of the Territory and publicly vote on proposed laws and resolutions.

Chamber debates enable a competition of ideas on how best to serve the Territory, and enable the electors to see how Members are representing them. The meetings of the Assembly give Members a voice on behalf of their electors, but should individual electors venture onto the floor they are classified as ‘strangers’.

2.5 However, while the floor of the Assembly is reserved for elected Members, the Assembly moves out into the community and invites participation by individuals through its committees.

2.6 Committees are an extension of the Assembly. Committees enable the Assembly to move out of the Chamber, and enable individuals and organisations in the community to have their say on the public record and participate in the Assembly’s debates.

2.7 Committees provide a unique opportunity for public participation and consultation as:

• they can move around the Territory and adapt their way of operating to suit specific needs

• their proceedings form part of the official record of the Assembly and are reported to the Assembly

• people who participate are protected by parliamentary privilege

• hearings and submissions are normally made public so subject to public scrutiny and debate

• Members from all parties and independents are on committees so they are inclusive of a range of viewpoints

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• the focus on specific problems provides opportunities for cooperative work between Members

• although rarely required, committees have powers to compel evidence and protect participants.

2.8 To date the Assembly has used committees to enable people to participate in its proceedings in an ad hoc manner. For example, it used committees to enable people to have their say on the Rights of the Terminally Ill Bill in 1995, to consult on difficult policy problems such as controlling the drug ‘ice’, and preventing foetal alcohol spectrum disorder and youth suicide, to publicly examine government services such as the management of housing on town camps, and to enable a public review of the Government decision to redevelop Richardson Park. However, such opportunities for public participation in the Assembly’s proceedings have been the exception rather than the rule.

2.9 Reforming the Assembly’s committee system will open up new opportunities for participation. In particular, the referral of Bills to committees for public consultation will enable Territorians to be active participants in the law making process.

Place of Review

2.10 Making laws and holding the Government to account are key functions of the Assembly. Following the Westminster tradition, most Australasian parliaments have an Upper House that reviews legislation introduced in the Lower House and provides additional scrutiny of Government activity. The two Australasian parliaments that have abolished their upper houses, Queensland and New Zealand, have found the need to develop strong committee systems to both review legislation and provide robust scrutiny of Government performance. The Queensland Committee System Review Committee in 2010 reported:

One of the key functions of a parliament is scrutiny of the executive. Proper scrutiny of the executive helps to ensure accountability and transparency and in turn better administration.

Queensland has a history of a strongly entrenched two-party system of government, with rigid party discipline. With members being elected from single- member constituencies through an optional preferential voting system, our Parliament frequently includes large government majorities. The additional level of scrutiny that can be provided by an Upper House is absent in Queensland since the abolition of the Legislative Council in 1922. Parliament becomes dominated by the government of the day.

We must look to other means of ensuring accountability and scrutiny.

A healthy parliamentary committee system is important for this reason.

Additionally, a strong and well-resourced system of parliamentary committees can enhance the interaction between the Parliament and the community.¹

2.11 The Northern Territory Legislative Assembly has a similar need to properly review proposed laws and hold the Government to account. An Upper House is clearly not

1 Committee System Review Committee, Review of the Queensland Parliamentary Committee System, Legislative Assembly of Queensland, Brisbane, December 2010, p. xiii.

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a practical solution for the Northern Territory, but like Queensland and New Zealand a strong and adequately resourced committee system could significantly improve our governance.

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Chapter 3 Portfolio Scrutiny Committees

Endorsement of the Proposal

3.1 The submissions and witnesses consistently expressed support for the proposal that the Assembly establish a system of portfolio based scrutiny committees to consider references and examine Bills. The Committee also took note of the views expressed by Members from all parties during its visit to the Queensland Parliament supporting their system of portfolio committees on which the Committee’s Green Paper proposal was based, and the widespread view that the introduction of that system brought significant improvements to the Parliament and the legislative process.

3.2 There were however a range of views expressed on some details of the proposal.

These are discussed below.

3.3 Draft Sessional Orders to give effect to many of the Committee’s recommendations are at Appendix B.

The Committee recommends that the Assembly adopts the proposals set out in its Green Paper for establishing portfolio based scrutiny committees and referring Bills to those committees, subject to the further recommendations set out below, by agreeing to the draft Sessional Orders at Appendix B of this report.

Managing the Workload

Number of Committees

3.4 The greatest challenge for the Northern Territory Legislative Assembly to implement a portfolio scrutiny committee system as proposed is managing the workload within an Assembly of 25 Members.

3.5 It would be unusual for a Minister or the Speaker to be on such a scrutiny committee, which under present arrangements leaves 16 Members. In larger parliaments shadow ministers would not normally be on such committees, but that would not be practicable in an Assembly of 25 Members.

3.6 The practice to date has been for committees to have between four and seven Members.

3.7 More Members on a committee provides a greater range of views, makes it easier to obtain a quorum, and allows for the delegation of work to subcommittees. Also, having fewer committees generally results in greater efficiency in both the use of Members’ time and the amount of secretariat support required.

3.8 Fewer Members allows more committees to operate, thereby providing a greater division of the workload and level of specialisation.

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3.9 The Committee does not think that a committee of less than five Members would be workable due to the challenges in readily obtaining a quorum for meetings required between sittings. The Committee also finds no advantage in six Member committees as only two can be formed from 16 Members. The options for consideration are therefore three committees of five Members or two committees of seven Members.

3.10 As committees represent the Assembly their representation of political parties traditionally mirrors that of the Assembly as far as practicable. The present Assembly comprises 72% Labor, 8% CLP and 20% independent Members. That composition can be most fairly reflected in a seven Member committee, with four Government (57%), one Opposition (14%), and two independent (28%).

3.11 Five Member committees would result in committees comprising either three Government (60%), one Opposition (20%) and one independent (20%); or three Government (60%), no Opposition (0%) and two independents (40%).

3.12 Consequently two committees with seven Members would better reflect the Assembly, allow greater scope to establish subcommittees, and could readily achieve quorum. However, two committees provide little opportunity for dividing the workload.

3.13 On the assumption that two committees of seven Members could effectively divide up aspects of its work between two subcommittees of three Members, the Committee proposes that initially the Assembly establish two portfolio scrutiny committees with seven Members. The number of scrutiny committees should remain under review as experience may show that three would be a more effective number.

The Committee recommends that the Assembly establish two portfolio scrutiny committees with seven Members with the membership of the committees reflecting the composition of the Assembly.

Specialist Committees

3.14 Questions were raised in submissions and at the hearings regarding whether it would be preferable to establish or maintain certain specialist committees.

Electoral Matters

3.15 The Electoral Commissioner noted that the Assembly had not had a committee that considered electoral matters. In contrast:

Queensland, also with a unicameral parliament addresses electoral issues through the Legal Affairs and Community Safety Committee and at the federal level, electoral issues are examined by the Joint Standing Committee on Electoral Matters. These bipartisan committees seek public submissions, conduct hearings and publish reports on electoral matters.²

2 Electoral Commissioner, Submission No. 1, 2016, p. 2.

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3.16 The Committee notes that the parliaments of New South Wales and South Australia also have committees that deal with electoral matters and the Australian Capital Territory Assembly has referred Electoral Act amendments to a select committee.

3.17 The Commissioner also noted that the Electoral Act requires him to provide Parliament a report on the conduct of each election:

Following tabling of this report, the current practice in the Northern Territory is for the Department of the Chief Minister (DCM) to be assigned the responsibility of preparing a cabinet submission proposing amendments to the Electoral Act with the NTEC providing technical electoral advice. This process sometimes involves public consultation through submissions (that have historically not been made public), and there have never been hearings to further scrutinise recommendations and issues raised in the election report or public submissions.

Historically, Electoral Bills have proposed amendments that address some of the recommendations in the NTEC’s election report and often consider other reforms not contemplated. For example, the 2015 Electoral Bill proposed a change to an optional preferential voting system, which was not contemplated in the 2012 election report. In this instance, the Commission issued an information paper outlining its position and issues for parliament to consider on proposed amendments to the Electoral Act, which were not contemplated in the 2012 report but proposed in the Bill.³

3.18 The Electoral Commissioner proposed that his election reports be considered by a committee, which would seek public input on report recommendations as well as other issues not contemplated in the report, including holding public hearings on proposals for electoral reform.

3.19 The Committee endorses these views and considers that the Commissioner’s Election Reports should be reviewed by the relevant portfolio scrutiny committee.

The Committee further considers that all reports from statutory bodies tabled in the Assembly should stand referred to the relevant committee.

The Committee recommends that on tabling in the Assembly all reports from statutory bodies, and in particular the Electoral Commissioner’s Election Reports, should stand referred to the relevant scrutiny committee for inquiry and report.

Public Accounts

3.20 The Green Paper proposed absorbing the role of the Public Accounts Committee into the portfolio scrutiny committees. This would involve the Auditor-General briefing the relevant portfolio committee regarding issues raised in her audit reports and that committee following up on issues as it saw fit.

3.21 The Committee asked the Auditor-General about how this change had worked from the Auditor’s view in Queensland:

3 Electoral Commissioner, Submission No. 1, 2016, pp. 2-3.

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The former Auditor-General of Queensland, who is now the Auditor-General for Victoria, certainly believes that the process has worked quite well and recently we met as a council, which we do several times a year. His view was that it worked well. The specifics around procedural issues we did not go into but there is—from my perspective, it would work just as easily to have two committees as one Public Accounts Committee.⁴

3.22 Given the benefits of the relevant portfolio committee receiving the professional assistance of the Auditor-General, the efficiencies gained through reducing the number of committees, and the Auditor-General’s view that this arrangement is quite workable, the Committee considers that the Public Accounts role should be taken on by the proposed portfolio scrutiny committees.

Division of Portfolios

3.23 The Green Paper proposed dividing responsibility for Agencies according to which of the four clusters they belong to. Thus one committee would cover Children, Families and Central Agencies and the other would cover Development, Tourism, Environment and Culture. This provides advantages of having the committees’

responsibilities align with related policy areas and administrative lines of accountability.

3.24 The Agency clusters are:

Chief Minister (Central)

• Department of the Chief Minister

• Office of the Commissioner for Public Employment

• Department of Treasury and Finance

• Department of Attorney-General and Justice

• Department of Corporate and Information Services.

Children and Families

• Department of Health

• Department of Education

• Territory Families

• Northern Territory Police, Fire and Emergency Services

• Department of Housing and Community Development.

Development

• Department of Trade, Business and Innovation

• Department of Infrastructure, Planning and Logistics

4 Julie Crisp, in Committee Transcript, 5 December 2016, p. 13.

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• Department of Primary Industry and Resources.

Tourism, Environment and Culture

• Department of Tourism and Culture

• Department of Environment and Natural Resources.

3.25 A number of submissions were concerned that this division by Agency super-cluster would result in a significant imbalance in the workload between the committees. The Committee shares this concern. If there had been one committee covering the Children, Families and Central Agencies clusters in the last Assembly it would have had responsibility for 135 Bills while a second committee covering Development, Tourism and Culture clusters would have been responsible for 30.

3.26 Some alignment with the clusters could be maintained while evening up the workload by structuring the committees’ portfolios around the line agency clusters but dividing the Central Agencies between the committees, with Attorney-General and Justice going with Children and Families and the other portfolios going with Development, Tourism, Environment and Culture.

3.27 Under this arrangement, the committees would cover the Ministerial portfolios as follows:

Justice and Families Committee

• Children (Manison)

• Attorney-General and Justice (Fyles)

• Health (Fyles)

• Housing and Community Development (McCarthy)

• Education (Lawler)

• Territory Families (Wakefield).

Finance and Planning Committee

• Chief Minister (Gunner)

• Aboriginal Affairs (Gunner)

• Northern Australia (Gunner)

• Police, Fire and Emergency Services (Gunner)

• Trade, Business and Innovation (Gunner)

• Treasurer (Manison)

• Infrastructure, Planning and Logistics (Manison)

• Essential Services (McCarthy)

• Public Employment (McCarthy)

• Primary Industry and Resources (Vowles)

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• Environment and Natural Resources (Moss)

• Tourism and Culture (Moss)

• Corporate and Information Services (Moss).

3.28 Had these committees existed during the previous Assembly, the Justice and Families Committee would have had responsibility for 101 Bills while the Finance and Planning Committee would have had 64 Bills.

3.29 The Committee considers that this allocation maintains a high level of commonality of themes and alignment with the Agency clusters while also providing a more even workload.

Issues based committees

3.30 In commenting on the Committee’s draft recommendations, the Leader of Government Business proposed that the committees’ responsibilities be allocated according to issues rather than portfolios:

It is proposed that the following committees be established:

a) Social and Legal Committee – this committee would take on responsibilities of Social matters, and the former Legal and Constitutional Affairs, and Subordinate Legislation Committees;

b) Economic and Scrutiny Committee – this committee would take on responsibilities of Economic matters, and the former Public Accounts Committee.

3.31 Having issues based committees would make it simpler to manage matters that covered a number of portfolios. However, as discussed later in this Chapter, the management of cross-portfolios matters by portfolio based committees is not a significant problem. Once a committee was inquiring into a matter within its portfolio area, it would be able to obtain evidence from agencies outside its portfolio area.

3.32 Replacing the Assembly’s current issues based committee system with portfolio based committees was one of the key elements of the Green Paper’s proposal to provide a robust system of committee scrutiny. It aligns the committees’

responsibilities with those of Ministers and Agencies so the lines of scrutiny can follow the lines of government accountability. It also ensures there is a committee identifiably responsible for each area of Government activity.

3.33 Keeping issue based committees as proposed above also involves providing different functions for the two committees; removing the public accounts and estimates functions from the Social and Legal Committee. This would further weaken that committee’s ability to monitor Agencies’ performance in delivering on social issues.

3.34 The Committee does not consider that Government activity can be divided between social and economic, but that sound financial management and the delivery of outcomes is equally required of all areas of Government.

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3.35 The Committee therefore considers that for the Assembly to keep its current issues based approach to committee responsibility would forgo an opportunity to significantly strengthen the effectiveness of the Assembly’s committees.

The Committee recommends that there be portfolio scrutiny committees called the:

a) Justice and Families Committee that covers the portfolios of Children, Attorney-General and Justice, Health, Housing and Community Development, Education, and Territory Families; and

b) Finance and Planning Committee that covers the portfolios of Chief Minister, Aboriginal Affairs, North Australia, Police, Fire and Emergency Services, Trade, Business and Innovation, Treasurer, Infrastructure, Planning and Logistics, Essential Services, Public Employment, Primary Industry and Resources, Environment and Natural Resources, Tourism and Culture and Corporate and Information Services.

How to manage crossover issues

3.36 The Auditor-General’s submission noted that the allocation of portfolios to two scrutiny committees may result in situations where a number of agencies have responsibilities for a particular matter and these agencies are allocated across both committees. The example cited was the 12^th Assembly’s Public Accounts Committee which held hearings relating to the Palmerston Regional Hospital with witnesses appearing from the Departments of Chief Minister, Health, and Infrastructure.

3.37 Issues that cross over into agencies outside a committee’s portfolio responsibilities will frequently arise due to the complexity of public policy matters. In most cases this will be resolved simply by the committee to which an issue is referred, or has undertaken an investigation into an area, calling for evidence from the relevant agencies regardless of whether the agency falls within the committee’s portfolio area. At times this may require consultation between the committees to avoid duplication of effort.

3.38 In his submission to the Committee, Mr Doran PSM proposed the creation of joint subcommittees to inquire into matters where the allocation of agencies falls across both portfolio committees.

3.39 In the New Zealand and Scottish Parliaments, committees have the power to establish joint subcommittees to scrutinise cross-departmental proposed legislation.

If a lead agency cannot be identified for a crossover issue, a joint subcommittee could be established to inquire into the particular issue.

3.40 The problem of crossover issues in the Northern Territory is ameliorated somewhat by the wide scope of issues each committee would cover. The Committee considers that in a parliament of the Assembly’s size it will be easier to manage crossover issues through informal liaison between committee Members. The Committee does not therefore propose any formal mechanism for the management of crossover

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issues at this stage. The Assembly may wish to revisit whether any formal mechanism such as joint subcommittees is required should this prove to be an issue over time.

Allocating time for Committees

3.41 The Committee’s Green Paper proposed that Wednesday mornings of sitting weeks be set aside for Committee meetings which, depending on the committees’ needs, would allow up to five hours’ time for meetings. This is the approach adopted by the Queensland Parliament.

3.42 Allocating time for committee meetings during sitting days has a range of advantages, such as providing a regular meeting pattern that is easier for stakeholders to plan around, visibly integrating the committee process into the legislative process, reducing the cost of travel expenses that are required for committee meetings on non-sitting days, and making it easier to organise committee meetings when all Members are available.

3.43 The Opposition’s submission did not support this proposal as five hours of committee meetings would leave little time for preparation for the Opposition and independents’ Question Time and General Business on Wednesdays.⁵ As an alternative, the Opposition recommended that every sitting day morning be available for committee meetings. This is the practice of the New Zealand Parliament, which sits as the whole House from 2.00 pm on each of its three sitting days in a week.

Alternatively the Leader of the Opposition indicated that allocating Tuesday or Thursday mornings would be workable but that Opposition Members would not be available for hearings on Wednesday mornings.

3.44 The Committee notes that a significant difference between the Northern Territory and the Queensland Parliaments is that the small number of Members in the Northern Territory Assembly creates a need for shadow ministers, and in the present Assembly also the Leader of the Opposition, to be on the scrutiny committees, whereas in the Queensland Parliament shadow ministers are not required to be on such committees so are free to attend to other parliamentary duties on Wednesday mornings. Consequently replacing what is currently time allowed for preparation for sittings on Wednesdays with extended committee meetings would create an acutely concentrated workload for the Opposition.

3.45 Another difference with Queensland is the large number of portfolios the Northern Territory committees would cover. Having more days during sittings to meet would assist with management of that workload.

3.46 In discussion with the Committee the Leader of Government Business indicated that Tuesday and Thursday mornings were required for Government Business.

3.47 The Committee considers that allocating Wednesday mornings of sitting weeks for committee meetings would greatly assist the committees manage their increased

5 Leader of the Opposition, Submission No. 7, 2016, p. 4.

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workload, but would not allow sufficient time for public hearings on Bills or other inquiries.

3.48 The Committee notes that while committees can hold hearings at any time when the Assembly is not sitting, there is a significant advantage in holding hearings on Bills at regular times during weeks in which the Assembly sits to enable easier access to interested stakeholders, reduce travel costs and more effectively use Members’

time. As there appears to be no convenient times for extended hearings on allocated sitting days, the Committee considers that Mondays of sitting weeks would be the most convenient time to hold hearings on Bills.

The Committee recommends that:

a) the Assembly commence sittings on Wednesdays at 2.00 pm to enable the portfolio scrutiny committees to conduct business on those mornings, and

b) in addition to their Wednesday morning meetings, the portfolio scrutiny committees adopt the practice of holding public hearings on Bills on the Mondays of weeks in which the Assembly sits as far as practicable.

Subcommittees

3.49 Subcommittees would assist the portfolio scrutiny committees to manage their wide range of functions and make the Assembly accessible to more Territorians.

3.50 Standing Order 187 enables committees to appoint subcommittees of three or more Members to which the committee can refer any matter within its terms of reference.

The subcommittee can then perform most of the functions of the committee, including taking and publishing evidence. A subcommittee cannot report to the Assembly or publish its findings but reports back to its parent committee which may report to the Assembly on the basis of the subcommittee’s work. As with normal committee hearings, Members who are not Members of the subcommittee can participate but not vote.

3.51 Committees may use their subcommittees to conduct the bulk of an inquiry with the committee considering and reporting on the subcommittee’s findings at the conclusion of its investigation, or it may use a subcommittee for a particular part of an inquiry, such as holding certain public hearings. Thus subcommittees could be used to divide the work of multiple inquiries between the committee’s Members, or to enable a few Members to conduct hearings and consultations on behalf of the committee. Members of the Queensland Parliament informed the Committee that it found subcommittees useful for consulting in more remote parts of the jurisdiction when not all committee Members were available.

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The Committee recommends that the portfolio scrutiny committees make use of subcommittees as provided under the Standing Orders to assist in the management of their workload.

Participating Members

3.52 The Assembly’s Standing Order 193(2) allows any Member of the Assembly to question witnesses at public hearings as follows:

A Member of the Assembly, although not a Member of a committee, may participate in the committee’s public sessions and question witnesses, unless the committee orders otherwise, but may not vote and must withdraw when the committee is deliberating or taking evidence in camera.

3.53 Allowing other Members to participate in hearings is useful when a Member has a specific interest in the matter at hand, which may particularly arise from time to time with the consideration of Bills, and when a Member of a committee wishes for another Member to pursue a matter on their behalf when they are not able to attend in person. However, the above Standing Order only allows participation in public sessions. There are a range of situations where committee proceedings that are not open to the public would nevertheless be suitable for participation by any interested Member. The Committee does not see the need for participating Members to be excluded from all closed sessions but considers that participation in such circumstances should be at the discretion of the Committee. Of course, this ability to participate does not include the ability to vote.

The Committee recommends that the provision for participation by Members who are not on a committee at committee meetings under Standing Order 193(2) be extended to include the private meetings of the committee.

Substitute Members

3.54 In addition to interested Members wishing to be involved in a matter, there may be instances where for some reason a Member of a committee is unable to attend committee meetings for a period or for a particular inquiry, or when a party wishes another Member to be its representative for a particular matter. If substitution of Members was allowed in such instances, in contrast to participation, the Member could vote in the committee and their involvement would not be subject to the discretion of the committee.

3.55 While there is a risk that excessive substitutions would erode the continuity and developed expertise of a committee, the Committee considers that this would be outweighed by the greater flexibility it provides, particularly given the wide range of matters each committee would deal with.

3.56 In many parliaments substitutions are allowed within a political party on the advice of a specified officer of the party, which following Standing Order 181 would logically be the relevant Whip. In the present Assembly, where one fifth of Members are

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independents, there could be a desire for substitution between independent Members. This could be done on the written agreement of both Members.

The Committee recommends that the Assembly allows for the substitution of Members of a committee for specified periods of time or inquiries.

Government Chairs

3.57 The Leader of Government Business proposed that it be required that the Chair be a Government Member.

3.58 This is not an issue on which the Committee took evidence. It has nevertheless been the custom of the Assembly to elect a Government chair of most committees when the Government party holds the majority of Members, and Standing Orders require that the Chair of the Public Accounts Committee be a Government Member.

3.59 Therefore, the Committee has no objection to accommodating the Leader of Government Business’ proposal.

The Committee recommends that the Chair of the portfolio scrutiny committees be a Government Member.

Consideration of Bills

3.60 The referral of Bills to committees is the central component of the Green Paper proposal to open Parliament to the people as it ensures Territorians have an opportunity to comment on the laws that will affect them. This proposal received widespread support in the submissions made to the committee.

3.61 As described in detail in the Green Paper, the proposal is for the Assembly to refer each Bill, other than those it deems to be urgent, to the relevant portfolio scrutiny committee following its introduction into the Assembly, the Minister’s speech explaining the Bill and the Bill’s first reading. The committee will then inquire into the Bill, including calls for public comments on the Bills and hearings where required, and then report to the Assembly and that report will then inform the Assembly’s consideration of the Bill.

Timeframe

3.62 A key issue for this proposal is how much time to allow for consideration by the committee. Adequate consultation requires time, but unwarranted delay can be costly. In this regard the Queensland and New Zealand experience is informative.

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3.63 Both New Zealand and Queensland provide a default period for committee consideration of six months.⁶ However, while in New Zealand the average time for consultation on a Bill is around four months,⁷ in Queensland the demand for a quick turnaround had often meant a committee was required to report back within weeks.⁸ The demand for ensuring that there was adequate consultation on Bills resulted in the Constitution of Queensland Act being amended to require that all Bills be referred to a committee for at least six weeks unless the Assembly declares the Bill to be urgent.⁹

3.64 A committee’s consideration of a Bill comprises three stages:

1) introduction and referral of the Bill, committee’s call for submissions, and initial Agency briefings,

2) consideration of submissions and holding public hearings, and 3) adoption and tabling of report.

3.65 Time is required between these periods to allow for stakeholders to prepare submissions and the committee to analyse the evidence and prepare its report.

3.66 There are substantial benefits with aligning the second stage of holding public hearings with a period of sittings as this:

• clearly signals that the committees’ hearings on Bills are part of the Assembly’s legislative process

• makes it easier for the public to be involved as the time for hearings will be predictable and easier to plan around

• makes participation by Members, particularly Members living outside Darwin, easier as hearings are included within their time in Darwin for the Assembly’s sittings, which will also make it easier for committees to keep a quorum

• reduces travel costs.

3.67 Conversely, separating the hearings on Bills from sittings would make public participation more difficult and make the process less efficient for Members.

3.68 Consequently, the Committee considers that the minimum time to be allowed for the referral of a Bill to a committee should span three sets of sittings, allowing time for written public comment after the Bill’s introduction, to be followed by hearings as required at the subsequent sittings, and the tabling and consideration of the committee’s report at the third set of sittings.

3.69 For simple, non-controversial Bills the committee would report back to the Assembly well before the end of the referral allowing the passage of the Bill to continue.

6 SO 295, New Zealand House of Representatives, Standing Orders: in effect from 15 August 2014, p. 87; SO 136(1), Legislative Assembly of Queensland, Standing Rules and Orders of the Legislative Assembly, p. 32.

7 Committee of the Legislative Assembly, Review of the Parliamentary Committee System, Report No. 17, Parliamentary Committees Queensland Parliament, Brisbane, February 2016, p. 76.

8 Neil Laurie, Queensland, Committee of the Legislative Assembly, Review of the Parliamentary Committee System, Submission No. 14, 2016, p. 5.

9 s 26B, Constitution of Queensland Act.

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Typically, if no issues were raised requiring further consideration, then the committee would give the Assembly a ‘no issues’ report at the sittings following the Bill’s introduction.

3.70 The Committee notes that the imposition of unreasonable timeframes caused the Queensland Parliament to impose a constitutional minimum for a committee’s consideration of a non-urgent Bill. The Committee considers that setting a minimum time for the duration of Bills would help ensure adequate consultation. The Clerk of the Legislative Assembly noted:

The Assembly is in charge of its own destiny at all times. The Assembly can always determine something has to happen outside of the standing orders.

Standing orders say you have to have a month between the presentation of a Bill and the question being put that it be read a second time. The Assembly can overcome any standing order if it wants to.¹⁰

3.71 While the Assembly would be able to suspend the Sessional Order to allow a shorter time for inquiry for a Bill, including a minimum period would set the standard.

3.72 The time required for an inquiry that spans three sittings is determined by the Assembly’s sitting pattern. Having pairs of sitting weeks spread throughout the year between one and three months apart, as with the schedule for 2017, makes it easier for committees to manage their workload but results in requiring more weeks for the consideration of a Bill. If the Government was concerned with the length of time required for Bill inquiries this could be addressed by scheduling sittings more frequently throughout the year.

The Committee recommends that all Bills be required to be referred to a portfolio scrutiny committee for a period spanning at least three sittings of the Assembly (noting that the committee may complete its inquiry at any time during the period of referral), unless the Assembly declares the Bill to be urgent.

Agency Briefings and Coordination

3.73 The NT Public Sector Agencies’ submission noted that Agencies undertake extensive consultation and analysis processes before a Bill is introduced into the Assembly, and that “it will be important to avoid the potential for confusion and fatigue in the consultation process, and to ensure that an additional consultation process adds value.”¹¹ The submission goes on to explore options for working with scrutiny committee consultation:

One option which may assist in achieving efficiencies in terms of Scrutiny Committee consultation processes is to augment existing Government agency consultation processes. Currently, the extent of consultation depends on the complexity, sensitivity, scale of impact, etc. of the proposal. The consultation process that agencies employ and the results of consultation are generally part of the broader policy development and Cabinet Submission process. It may be

10 Committee Transcript, 5 December 2016, p. 7.

11 Department of the Chief Minister, Submission No. 9, 2016, p. 4.

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that Scrutiny Committee work could be informed by such agency consultation processes where appropriate.

Another area for consideration is the Regulatory Impact Statement (RIS) process which is a component of the Regulatory Making Framework…¹²

3.74 The Committee agrees that it will strengthen the process if the scrutiny committees can make use of the consultation and analysis work that has been done by Agencies. The effectiveness of the committees’ examination of Bills will be enhanced if the committees can access early and full briefing material from Agencies on each Bill. Formalising procedures for such briefings, such as the Agencies providing a briefing pack to the relevant committee on referral including, where appropriate, the Regulatory Impact Statement and information from consultations, should increase efficiency.

3.75 There would also be benefit in establishing a routine for oral briefings.

The Committee recommends that the Government develops a system for providing briefing materials to the relevant portfolio scrutiny committee on the introduction of Bills in consultation with the committees.

References

3.76 The Green Paper proposed that the portfolio scrutiny committees inquire into any matter referred by the Assembly or a Minister. While the committees were to have a range of scrutiny functions within their portfolio areas the Green Paper did not propose a general power of self-referral within the committee’s portfolio area.

3.77 Some Members expressed the view that the committees should have a general power of self-referral. The Committee notes that the most recent reforms to the Queensland portfolio committees included the power, in relation to its portfolio area, to “initiate an inquiry into any other matter it considers appropriate”.¹³

3.78 The Clerk of the Legislative Assembly noted:

A strong Assembly likes its committees to have plenty of power because the committees are always responsible back to the Assembly anyway. If they are self-referring, they cannot make decisions, they have to refer it back to the Assembly and the Assembly makes a decision one way or another about what they want to do with the recommendation from the committee.¹⁴

3.79 The inclusion of such a self-referral power would make its scrutiny powers within its portfolio area complete. This would also avoid the procedural burden of seeking a reference from the Assembly or a Minister to pursue a matter of importance outside its general terms of reference, or technical arguments regarding whether a specific matter required a separate reference.

12 Department of the Chief Minister, Submission No. 9, 2016, p. 4.

13 Parliament of Queensland Act 2001, s 92(1)(d) (Qld).

14 Committee Transcript, 5 December 2016, p. 7.