Interview with Jim Pender, Clerk of Committees, House of Representatives. Parliament House, Canberra. Thursday August 24th, 1989.
Greg McIntosh recorded this interview with Jim Pender at Parliament House, Canberra on 24 August 1989.
G McIntosh: Interview with Jim Pender, Clerk of Committees, House of Representatives, Parliament House, Canberra. Thursday August 24th, 1989.
First thing I’d like to ask you about is just your general view on the parliament-executive relationship as you see it.
J Pender: Well I think over the last few years, especially with the acknowledgment that members need to be better informed, and the agreement to the new committee system for the House of Representatives — well new in that it’s a more comprehensive system than they had in the past — that there is a general improvement. I think members have realised that no longer can they just take whatever advice is given to them by the executive — especially the government party members — and that they — excuse me — they need to informed individually and independently.
And I think they’re using the committee system, and hence the big push for it in ’87 to form themselves so that they can, when they negotiate with the executive — and they do negotiate with the executive in caucus, committees and everything else — they can negotiate on a better plateau, higher plateau, and there’s a more even contest — that’s within the government parties, and of course the opposition are very keen to be informed of matter generally, so I think the enthusiasm that’s still there for those committees that were set up in ’87 reveals that to some extent.
G McIntosh: A lot of people have complained that those committees haven’t got the power to determine their own references — do you think they should have that power?
J Pender: Well nor have the Senate committees, and that hasn’t been inhibiting factor over the last 19 — nearly 20 years now that they’ve been operating, but the House of Representatives committees are able to have references — or matters referred to them from ministers and from the house and while the House hasn’t referred a lot of matters to the committees, there have been references of auditor general, efficiency audits and other papers that have been presented. The potential is there for greater references, but I think the committees are feeling their way. In terms of those references that they’ve got form ministers, I’d say that 80 per cent of them have been at the instigation of the committee themselves. In other words, the committee decides what enquiries they’d really like to embark on, and they suggest it to the minister and get a letter back, usually agreeing to it. Sometimes there’s a bit of I dotting and T crossing, but generally all negotiations for references have been quite successful, and we don’t have to go through the trouble of raising the matter in the House, waiting for a General Business — Private Members’ Business Thursday before we can actually refer those matter to the committee.
G McIntosh: Ideally would you like to see legislation go to some of those committees?
J Pender: Yes, yes. I certainly thing that’s something that’s got to be developed in the future. The way the system orders are actually written — bills can be referred to those general purpose standing committees, and it can be done straight after the second reading stage. Now there have been several attempts by the opposition to refer a couple of bills to those committees, but they’ve been unsuccessful to date. However I think the — because there’s sort of increase in that idea in the Senate, I think the government might think seriously in the future about reference of these matters to…
G McIntosh: Might have more control over the Reps committees in that sense…
J Pender: Yes, yes. I think so. So they could very well in the future start referring bills to committees. Of course you’ve got the Procedure committee of the House now, undertaking a major review of the standing orders — some of the proposals they come up for might have some radical implications for both the executive and backbench members, and for the committees in the long term.
G McIntosh: Do you think is that — might be too early to say, but do you think that recommendations there might tip the balance a little bit more in parliament’s favour? Is that the sort of way they’d be heading?
J Pender: Well, to date, that’s their record — the Private Members’ Business is Thursday, the special time for committee reports — delegation reports — those sorts of recommendations that the committee has made, which are carried through every Thursday — have all tipped the balance towards the members and given them more opportunity to do the things that they’re particularly interested in. A lot of criticism of it at the House of course, because they say it’s under the executive thumb, and once Estimates committees were scrapped years ago, a lot of people have said that the only other way that ministers are held accountable in the House is through the Question Time, but I think with things like the Public Accounts committee flexing its muscles recently and other committees — the Legal and Constitutional Affairs committee, and the Finance and Public Administration committee with some of their recent enquiries, they’re showing that they can actually get down to the bottom of things and come up with decisions which might affect future policies.
G McIntosh: How effective is — say in the House of Representatives — how effective is it as a scrutiny of the executive — I mean if you look at the ministers, the bureaucracy with hundreds and hundreds of thousands of public servants out there — only about 180 odd backbenchers, and the government backbenchers aren’t really going to be too keen in getting stuck into the executive — how much can we expect of the House of Reps to scrutinise do you think?
J Pender: I think it’s a latent strength, it’s one that’s not used but the potential is always there. And if an executive were to go off and just ignore their backbench members, then I’d think you’d find that this latent strength would be implemented and there would be a force to be reckoned with. At the moment though, the members should themselves — I think the best example is probably the Finance and Public Administration committee, when it presented its report called ‘Going for Gold’ which was on sports funding, and we had Senator Richardson acknowledging the input of that — only on Monday — acknowledging the input of that committee. And of course the report and everything was timed so there was an opportunity for the government to seriously think about the recommendations of the report in formulating the budget for 1989-90, and that’s worked. So they’re not so much scrutinising the executive in that case, as trying to have an input to the policy decision making process, which is a different kettle of fish — but I think the scrutinising aspect is something that’s latent and something that they could exert at a time if they thought the executive was actually getting out of line.
G McIntosh: Certainly a lot of backbenchers from all parties, and even shadow ministers have said they just haven’t got time to look at legislation, they’re flat out on constituency work, party work — that sort of thing. And they do have to rely heavily on the party guidance in the Party Room for how they vote and that sort of thing. But it appears that a lot of them don’t even really bother with the scrutiny function, they haven’t got time. And a lot of the legislation complex and they’ve only got a couple of staffers mainly in constituency work. They basically appear to have hand passed it to the party, they’re the ones that give them the guidance on what they do.
J Pender: On their attitudes, yes, but someone’s got to inform themselves about the legislation, even if it is the party machinery. Certainly Labor backbenchers use their caucus committees to inform themselves about legislation, but you’ll find that there’s a lot of similarities between caucus committee membership, and general purpose standing committee membership — and a lot of the items that would be discussed in one, probably are discussed in the other and there are similarities.
So they use their public or parliamentary committee experience to help them in formulating their attitudes towards legislation and those sorts of things when they come up in the Party Room. I’m not quite sure just how the opposition are organising themselves these days, but a lot of opposition front benchers are on those general purpose standing committees. And they usually make a point of — if they have a portfolio responsibility to shadow — that they are on the appropriate committee to do that. And there are very few exceptions to that.
G McIntosh: What about the role of the Senate, how important do you think the Senate is in the scheme of things?
J Pender: The Senate is a bit of a thorn in the side I think, more than anything else. Certainly because of the lack of numbers for quite some years now, have been able to certainly keep the executive accountable to them, but you don’t have resignations of ministers because of something done in the Senate — I can’t recall any instance of that occurring, whereas we have had ministers resign because of the interrogation and the absolute duels they’ve made themselves in say, Question Time or something of that nature. Garry Punch was probably the most recent example where he didn’t live up to expectations and he was found out during Question Time in the House so he resigned from the ministry, but never happens in the Senate. So while the bureaucracy might be accountable in terms of the Senate, it’s not the executive so much. I think you’ve got to look at the House of Reps…
G McIntosh: …of amendments and things like that and the legislation of programs can’t they?
J Pender: Oh yes, but very rarely — and they are amendments — and very rarely is a government’s principle legislation ever stopped by the Senate or held up — there’s been very little recent activity in that regard. They do give a lot of legislation a pretty thorough going over, but even then, when they’re going through their normal processes of going into committee as a whole, etcetera, the treatment is superficial — and sometimes a whole — heaps of bills in a row will simply go into committee and go out of committee without much debate taking place. And certainly no amendments being moved.
And I think a lot of it’s because we have throughout our parliament, a lot of mechanistic type legislation, where you wouldn’t see that in the UK or somewhere like that for example — they’re all done by delegate legislation, whereas here we might have 13 Primary Industry bills in one block. And there all associated and they’re all one page, so you’ve got to think in terms of those — and I was listening to an argument the other afternoon where it was state that initially, on average, the House spent 20 hours — sorry, most bills had 20 hours of debate in 1901, in 1988 it was down to 2 hours something…
G McIntosh: Yeah those figures I think where in that book by Reed and Forrest.
J Pender: That’s right, the Reed and Forrest book. You’ve got to take into account the amount of legislation has multiplied extraordinarily since those days and also there are a lot of these mechanistic bills, so if you use a statistic of that nature, you’ve got to qualify it by recognising the fact that one the principle pieces of legislation, many hours are spent in the actual debate in most Houses, but on the more mechanistic ones, very little time is taken. And they’re usually just passed straight through.
G McIntosh: We’ll move onto the second area then — what’s your general view of the new building overall? Do you think it will have any effect on parliament-executive relations?
J Pender: Initially I did, I thought it would have some major effect — members were used to having ministers nearby — and in fact intermingled with them, which is a bit of an anomaly in terms of other Westminster parliaments — but now that we’ve been over here for a year, I don’t. From a very personal and selfish point of view, it’s the first time that the Committee Office of the House of Representatives has been with the rest of the department in one building. So in other terms we are very pleased to be able to be nearby — near members and the members are very pleased to be able to come to talk to us without having to put up an umbrella and walk between two buildings and things of that nature — or catch a cab as once was the case one year when we were in Civic.
But the ministry has — the executive members have two functions, and while they are still members of the House and need office accommodation etcetera, in the House, they still are supposed to be running departments and I don’t think the present situation is the healthiest — I always felt that, from personal point of view, that ministers should be with their departments, not in the building except in sitting weeks, just as members are. I don’t think they should operate their full time offices form Parliament Building, and I noticed recently on — this is just taking a personal point — I recently noticed that on the Department of Prime Minister and Cabinet Annual Report, they had photos of Parliament House, and it’s certainly a non-executive building, and I think it’s wrong for them to think of it as such and use that as an illustration.
G McIntosh: Do you think the fact they’ve got nearly a fifth of the building here — will it mean that just the perception is that the executive are more and more dominant in that relationship?
J Pender: Well I don’t think so, I think taking them out of the office accommodation that generally belonged to all members, and sticking them out on their own is an acknowledgement of the fact that they are separate. I don’t — so I think the building design and the accommodation that’s been given the executive acknowledges the fact that they are a separate entity. And while I’m not necessarily in this tribe petitioning, distinctions that a lot of the theorists make, I think it is a good idea to have them as a separate entity, but within general access. And the fact that they are all separate doesn’t mean that they’ve been cut off from the rest of the members — in fact in terms of the this building, the distance to walk to the ministers’ offices is probably less distance than it is to visit a Senator or something.
G McIntosh: Quite a few of the members have said that they’re finding it hard to see ministers though — they really have to have formal appointments now, and they’re difficult to get. The old informal running into them in the toilets, the bars and the corridors — they just don’t do that anymore. And they’re saying that there’s a bigger distance between them.
J Pender: Well that’s probably in benefit of the minister, and they probably like it that way in that they can at least not have to be prepared to be giving formal advice in an informal situation. And I’m sure members did in the past take those opportunities to talk to them about various items, but they’re still in the building — they’re not that far away and I’m sure if a minister would want to, his or her door would be wide open to any member that wanted to come in. The fact that they have to make appointments and things of that nature is probably at the minister’s request, and it helps separate the ministry a little bit from the members. But they’ve still got to mingle in the House, in the lobbies, and they’re still in the Party Room a couple of times a week, so they’re not that cut off in my terms. I wouldn’t see it as any great disadvantage — I think it’s a case of a lot of things with regard to the new Parliament House — we’ve just got to learn to adapt to the new building. And use it to the best of our ability, and a lot of us haven’t quite adjusted yet.
G McIntosh: Well the last area, and it’s probably the biggest area, is the area of reform — have you got any idea or suggestions that you think this place would work better?
J Pender: Well I certainly — I always liked the experiments we went through with the Legislation committees and the Estimates committees that we went through in the late ’70s and early ’80s — I think there’s a lot of benefit to be gained from formalising.
G McIntosh: Well they were chopped out basic — most people I’ve spoken to have said they were chopped out basically because they were effective.
J Pender: [laughs] well that might be right — certainly with the Legislation committees, the way I perceived it, at the end of their run — we had cases where the government on one side was only really agreeable to sending large bills to the committees — generally non-controversial bills, but bills that were pretty large in bulk — and the opposition on the other hand, wanted the controversial bills. So we had never the two meeting, and unfortunately that meant that no bill were being referred to Legislation committees. And on the Estimates committee side, I think they were differently oriented to those of the Senate — they were into questioning of programs, and probably a forerunner to the program budgeting type concept, in that the questions — two ministers were on the programs — departmental programs side, rather than just on the dollars and cents and bits and pieces that you could associate with. And on that basis, they probably were a bit hard on the ministry.
The one feature of those two lots of committees was that the ministers were members, unlike the Senate Estimates committees where ministers come in and talk to the committee, the ministers were in fact members of the committees in both cases. And the chairman of those committees used to give the ministers time to consult with departmental officials and whatever they liked, to answer questions and would allow departmental officials to answer questions if the minister so desired. But generally, it was a member of the committee that was interrogated by his colleagues, and that’s how it worked — or she was interrogated by her colleagues, and that’s how it worked in both the Legislation and the Estimates committees, which is also a different emphasis to what you find in the Senate these days.
G McIntosh: So ideally you’d like to see — and that’s the parliament actually getting stuck into what the executive is doing, but the fact it doesn’t happen is probably indicative of the control the executive’s got — I mean they don’t want that…
J Pender: Well that’s a vicious circle isn’t it? And I’m sure that these are the sorts of things that the Procedures committee will be considering again in this process of reviewing the standing orders — in fact I hope so. But I think it’s unavoidable if they do a thorough job of reviewing standing orders.
G McIntosh: Are there other areas that you’d like to see changed?
J Pender: Well I think — if you look at what those committees could achieve — in fact looking at just about every bill that comes along, or you set a criterion and you do have the controversial, and you do have the larger, bulky bills going to those sorts of committees as a matter of course. And you do have the annual Estimates being interrogated — I mean in those cases, the executive is the person — the executive member is the person who is accountable to the parliament and it’s direct — I’m mean you’re sitting opposite each other at the table — I don’t think once you achieve those sorts of things that you can go much further realistically. I think if you can get that far, you’ve taken a giant step forward in terms of the House of Representatives, and you can certainly see — and it’s quite visible — that parliament is scrutinising the executive and in the same process though, we are — the House of Representatives is scrutinising legislation and the major expenditures for departments in any financial year.
G McIntosh: Do you think overall, the parliament has got enough resources to be able to scrutinise the executive — I mean if you look at the resources available to backbenchers and your resources in the committee system and so on — are there enough resources to be able to adequately cover everything the executive does these days?
J Pender: Yes that’s a meaty question. A lot of the departmental support is going through processes and processing these sorts of things — I mean it’s not every bureaucrats sitting around and thinking up new policies and alike, putting them forward to the minister as possible reform — so in terms of resources, I don’t think we’re too badly off. We’re able to — the beauty of parliamentary committees for example, is we’re able to tap in everywhere — we can tap into the community, we can tap into the public service, we can tap into consultants, experts, academia — whatever we like virtually, it’s unlimited, and that’s because of the power of committees. So while they’re not necessarily resourced with great, huge wads of people, we are able, through the evidence gathering processes, to get any information virtually from the best people in the land on a particular subject. So I think…
G McIntosh: I noticed, it was Phil Ruddock and a few others — even Tickner — complaining about the cut back in staffing in the Joint Public Accounts committee wasn’t it? Ten to four or something like that?
J Pender: Yes — no fifteen to five. It’s now up to eight.
G McIntosh: Is that sort of thing a problem all the time?
J Pender: Well as Madam Speaker kept telling the chairman, ‘really you’ve got to cut your cloth to a suit that fits, and if you’ve got X amount of resources — and I mean resources are finite — you can only do so many enquiries’ — I mean the members themselves can’t be doing an enquiry justice if they’re trying to handle eight enquiries — and that’s on one committee, and they’re on three committees — I mean that — you multiply that by three, you’ve got twenty-four enquiries that a member is trying to keep across at any one time — I mean that’s virtually impossible and defeats the whole purpose of having the committees in the first place. So really, you’ve got fifteen members on that committee — they’ve just got to prioritise the number of enquiries that they can handle at any one time, and really we’ve got enough resources and we’ve had enough resources to be able to support a certain amount of enquiries that the committee can undertake. I don’t think it’s destructive — it certainly doesn’t stop the Public Accounts committee, which is the only committee now in the parliament that can undertake its own enquiries.
G McIntosh: In the whole parliament?
J Pender: Yeah, it’s the only one that can initiate it’s only enquiries, sorry — they all undertake them, but it’s the only one that can initiate its own enquiries. So in that context, they certainly with eight people there, and as I said, through the evidence gathering process you can get the best advice in the country by just having people come along and give evidence to the committee. And we do supplement our staffing by participating in executive development schemes in the public service. Generally we’ve got a couple of people from the Senior Women in Management program, and we hire consultants and we do get secondments from departments — a lot of departments see it as beneficial for their staff to spend a certain amount of time in the parliament and especially working in a secretariat to a parliamentary committee as it broadens their outlook and gives them a greater appreciation to this parliament-executive relationship like we were talking about earlier. So really there are a lot of benefits to be gained from the way we do resource committees at the present time.
G McIntosh: Just a few others just quickly and a couple of them are on the survey — have you got any views on how effective Question Time is for instance? And the role of the Speaker?
J Pender: The Speaker could be more assertive, the firepower’s there, it’s just not used as often as it might be so I’ve got to be careful [laughs].
G McIntosh: I won’t quote you on that. I’m not quoting anyone by name — actually some of the stuff I’ve got on tape about the Speaker is unprintable from both sides, all sides.
J Pender: I was verging on that but yes, I think the firepower is there and it’s just not used — and it could be if any incumbent really wanted to use it, they could make questions far more relevant and keep the answers short if they really wanted to.
G McIntosh: Well how important is the office of Speaker then — I mean it appears in this case it’s a party-political thing and she was a woman in the right place and the right time, and that sort of thing — how important is it to select the right person for the job, rather than, I don’t know, a payoff or something.
J Pender: Yes, unfortunately with the fact that it’s a spoil of office for the party in power, I don’t think we’ll ever get the best possible person for Speaker.
G McIntosh: Should we move more towards the UK?
J Pender: Well not necessarily to the UK, but yes once a Speaker is elected, it would be a good idea if we could have an undertaking and there was no contest in that electorate. I don’t think the electorate suffers because they have made a choice at some stage in who they wanted — a bit like the UK in that regard, but yeah I think — but it’s hard to get rid of them then. Unlike the UK, we can’t promote them up to the House of Lords and things of that nature, so you’ve got to — the Speaker’s got to realise that the time has come to move on.
G McIntosh: Well I suppose if they were really bad, they could be shunted by a vote on the floor of the House couldn’t they?
J Pender: Yes but I don’t think any member would want to do that to the presiding officer, while they might have a Vote of no Confidence motion, and we do — usually because of party numbers, these are not carried. So I think perhaps — I’d have to think about that a little bit more deeply, but I’d like to see once a Speaker is elected, and people actually felt they were choosing the best person for the job, that that person could stay in the Chair for a while and not be worried about party considerations and things of that nature — various Speakers have at time not attended party meetings and things like that — current couple, or the current one and the previous one I think still went to party meetings and alike — I can’t remember Sir Billy Snedden doing that, I think he gave up attending party meetings and things of that nature.
G McIntosh: Well he tried to push that separate role very strongly didn’t he? J Pender: Yes he did, and of course he wasn’t — they weren’t able to compromise him because he took that stand-off approach, and so he was probably a better Speaker for that, but…
G McIntosh: Someone told me he was the cause why the executive [INAUDIBLE] were replaced.
J Pender: [laughs] yeah I had that story repeated myself, that he and Malcolm Fraser had this disagreement — actually was always proposed by the — there was a New Parliament House committee in the early ’70s and they suggested the separate executive wing — separate from the building so that it was neither parliament building or an executive building or a cross between both. And I think that was a recommendation in the 1972 committee report of the New Parliament House committee, that we have a separate executive wing, that was nearby but not attached — and I think Snedden was just keeping the same vein, but Malcolm Fraser did let the executive wing creep in on the rest of the building, and the one access point became several, and so on. But they did have their disputations about the matter of — just where the executive wing would be.
G McIntosh: Well just the last one then, Question Time — have you got a view on that?
J Pender: Yeah I was getting back to that — certainly the Speaker could take a firmer hand. I think the current government is that there are a lot of Dorothy Dixers for which they are prepared, and they are taking too long with their answers and the type of answers that we are getting to some of those questions should be made as statements after Question Time — so I think it’s, under the present government, it’s losing a lot of its impact as a means of keeping the government accountable. However it hasn’t lost it all together, there’s the Garry Punch example that I quoted earlier — I mean he just didn’t respond to questions terribly well and he paid the price, so I think in…