Feb 21, 2011

Debate over the Senate’s Youth Allowance legislation

ANTHONY ALBANESE – This resolution draws upon three important documents: the Australian Constitution, House of Representatives Practice and standing orders. This House simply cannot place the parliament in the position whereby the House of Representatives ignores any of those documents, but in particular cannot simply choose to ignore, out of political convenience, what is stated very clearly in the Australian Constitution.

Under our constitutional arrangements it is the government of the day that is responsible for the management of public revenue and the budget. The government initiates all financial initiatives in the parliament, and that is for good reason. There are a range of initiatives which, by themselves, we could all agree on. We would all like to give extra money to particular groups in society, for example. But the reason that the founding fathers—and they were all men—considered the constitutional issues in the way they did was that they understood that as well as expenditure there has to be revenue; that governments of the day have to put up the budget. They also understood the respective role of the houses of parliament; that the House of Representatives is the people’s house and that the Senate is the house of review, representing states and territories.

The Constitution cannot be clearer; section 53 of the Constitution states:

Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate.

It cannot be clearer than section 53 of the Constitution.

Section 56 of the Constitution reinforces that:

A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated.

There is no message of the Governor-General attached to this legislation. None; so it simply cannot be passed by this chamber.

Advice which I have received—and which has been tabled in the House—of the Attorney-General, of the clerks, of the Office of Parliamentary Counsel and of any legal minds which have considered these issues considers the Social Security Amendment (Income Support for Regional Students) Bill 2010 [2011] from the Senate to be a proposed law appropriating monies. All you have to do is read it.

The explanatory memorandum presented by Senator Nash states:

Financial impact is approximately $90 million per annum.

That is, if the bill were enacted an additional amount of approximately $90 million would be appropriated on an annual basis. This would be an increase to 2013-14 of approximately $272 million.

The requirements under sections 53 and 56 are not confined to laws explicitly appropriating the consolidated revenue fund. Laws that cause money to be expended under a standing appropriation are also covered. By altering the purposes for which money may be expended, in this case the category of persons entitled to a benefit, the bill is clearly in contradiction of both sections 53 and 56.

The financial initiative of the executive is enshrined not just in the Constitution, of course, but in House of Representatives Practice and in standing orders. House of Representatives Practice has been used in this chamber since Federation. Page 408 of House of Representatives Practice clearly outlines the financial initiative of the executive:

  • The Executive Government is charged with the management of revenue and with payments for the public service.
  • It is a long established and strictly observed rule which expresses a principle of the highest constitutional importance that no public charge can be incurred except on the initiative of the Executive Government.
  • The Executive Government demands money, the House grants it, but the House does not vote money unless required by the Government, …

Page 431 of Practice deals with section 53 of the Constitution and limitations on the Senate powers of amendment:

Section 53 of the Constitution, as well as limiting the rights of the Senate in the initiation of legislation, provides that the Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue for the ordinary annual services of the Government.

Further, page 567 of Practice states:

A private Member may not initiate a bill imposing or varying a tax or requiring the appropriation of revenue or moneys. This would be contrary to the constitutional and parliamentary principle of the financial initiative of the Executive—that is, that no public charge can be incurred except on the initiative of the Government.

Indeed, this practice has been perfectly illustrated by the member for Forrest’s motion concerning this very matter. Advice was provided to the member that it would not be in order for a private member to present a bill to the House to extend the youth allowance in the way proposed in the bill, as it would contravene the practice of the House and be contrary to section 56 of the Constitution. So, rightly, the member for Forrest moved a private member’s motion rather than a private member’s bill. She accepted that that was the situation, as did the entire House of Representatives when we considered the private member’s motion on this matter last year. The same was the case when I put forward a private member’s bill in 2001 on equal rights for superannuation for same-sex couples. It had to exclude Commonwealth public servants because, as a private member, I could not appropriate funds. That is the role of ministers. I respected that. We have to respect the processes of this House if government is to have the respect of the people.

Indeed, a message from the Governor-General for the appropriation of public moneys may only be requested by a minister. Page 568 of House of Representatives Practice makes this clear:

It would not be possible for a private Member to obtain the Governor-General’s recommendation for an appropriation. Furthermore, of those bills requiring a Governor-General’s message, only those brought in by a Minister may be introduced and proceeded with before the message is announced. Therefore, only a Minister may bring in a bill which appropriates public moneys.

It cannot be clearer, and every member of the House of Representatives must understand that this is what we are debating, rather than the substance of the bill. People have views as to the substance of the bill that may vary. Certainly, it is the case, though, that we have to—and every member should—respect the Constitution and not engage in some form of anarchy where people, for opportunistic reasons, can take whatever position they like rather than respect the Constitution, House of Representatives Practice and the standing orders. We all know the rules of the game, and the Constitution cannot be clearer. That is why the standing orders reflect this as well.

Standing order 180 clearly spells out the principle again, and these standing orders were adopted unanimously by this House when this parliament convened. There were no objections by those opposite, there were no objections from the crossbenchers and there were no objections from government members.

We all supported standing order 180, which says very clearly:

All proposals for the appropriation of revenue or moneys require a message to the House from the Governor-General recommending the purpose of the appropriation in accordance with section 56 of the Constitution.

For an Appropriation or Supply Bill, the message must be announced before the bill is introduced


For other bills appropriating revenue or moneys, a Minister may introduce the bill and the bill may be proceeded with before the message is announced and standing order 147 (message recommending appropriation) applies.

This bill would, if enacted, significantly affect public revenue and appropriate revenue by clearly increasing what would be paid under a standing appropriation.

The bill proposed by the opposition amends the Social Security Act 1991 to change youth allowance payments. The effect of the amendments proposed would be to increase the amount of money appropriated from the consolidated revenue fund. Senator Nash—only on 10 February, in her speech on the second reading debate in the Senate—said the following:

… this is not about fiscal responsibility of the government and bringing budgets back to surplus.

I say that it has everything to do with fiscal responsibility of the government, and our responsibility as members of the House of Representatives to act in accordance with our obligations under the Constitution. This is irresponsible behaviour from the opposition. The Leader of the Opposition still has not accepted that he is not the Prime Minister. It is one thing to oppose; it is another to try and wreck the federal budget and play politics with the national economy

If you support having this bill debated then next week we will have another bill appropriating money for another purpose that may or may not be worthwhile and that people may in general support. But the reason the Constitution, House of Representatives Practice and the standing orders are framed the way they are is because budgets have to put together, with expenditure as well as revenue. And you do not have to just to believe me—believe the Manager of Opposition Business. He said last week on ABC Radio that he accepted that, even if the bill passed the House of Representatives, the government was not obliged to send it to the Governor-General and it would not become law.

This is what the Manager of Opposition Business had to say—and it gives up the game of what they are really about on that side of the House:

It potentially would lead to a constitutional crisis. I mean, the weight of constitutional opinion would be on their side, that they did not need to present it to the Governor-General. That’s true, because the opposition and the private members can’t have money bills adopted. They have to initiated; they have to be presented to the Governor-General by the government.

I say to the House of Representatives: game, set and match. The Manager of Opposition Business, who will speak after I conclude, was stating the exact opposite of what he said on ABC Radio last week, where he said:

That’s true, because the opposition and the private members can’t have money bills adopted.

I was the Manager of Opposition Business in the dark era of the Howard government, and I never once even thought about taking this opportunistic direction. Never once did we attempt this. It is contrary to the Constitution.

We have more regional seats than the Liberal Party. Not once did we take this opportunistic view. Indeed, in 2008, when the opposition last tried this, the Manager of Opposition Business, Mr Hockey, interjected—it is in the Hansard of September 2008—‘What we want is the government to adopt this position’. He gave up again in that debate that private members’ bills can be moved in this fashion.

So we have a situation in which the High Court of Australia has considered some of these matters in the Pape case. We have the Attorney-General, the Office of Parliamentary Counsel, the clerks of the House of Representatives, the Speaker of the House of Representatives, the Constitution, House of Representatives practice, and standing orders, but those opposite say: ‘Don’t you worry about that. Let’s just consider this and pass it even though, because there is no message attached, it will not make any difference to anybody.’ Let me be very clear: there is no message from the Governor-General attached to appropriate money, so it does not make any difference, but they will engage in this as a stunt. They understood and accepted last December, when they moved a private members’ motion to put the views that members of the House had, as is appropriate.

We facilitated in this new parliament the voting on private members’ motions and private members’ bills. Private members’ motions are completely legitimate for members of the House of Representatives to express their views with. They have done that, and the government has taken on board the views of many members with the announcement that we have made today. I thank those members, particularly all of the members on the crossbenches, who have engaged in a constructive fashion regardless of what way they vote on this particular issue. They have engaged constructively and understood the balance that needs to be made between political objectives to achieve an outcome and behaving in a fashion that respects the role of this House of Representatives.

We have a great honour and a privilege in sitting in this chamber. It is an honour and a privilege that we cannot use simply for opportunistic purposes. It is an honour and a privilege in which we have to respect the law, the Australian Constitution, the House of Representatives, the standing orders and, in this case with my resolution, Mr Speaker, your determination on this matter. It is correct. It is in line with all of the history that has been conducted in this House without exception. That is why I commend the motion that I have moved to the House and support your determination on this matter.