Initial Proposal

Following our representations to all party leaders, the NSW Legislative Council passed a motion on 20 June 2019 asking its Procedure Committee to explore whether…

…prior to its introduction in the Legislative Council, all highly contentious government legislation – defined as a bill likely to substantially alter economic, employment, social, legal, or environmental conditions in New South Wales and to provoke widespread public interest in the proposed changes – be subject to a comprehensive and consultative Green and White Paper process, and

a modified research and deliberative process be available for highly contentious private members’ bills to ensure that the intent and possible ramifications of the draft legislation are fully explored.

The motion was moved by Mark Latham (One Nation) and after an amendment was seconded by David Shoebridge (The Greens). It was passed without dissent, though the Government said it did not favour its intent.

At the time the Sydney Morning Herald reported on our proposal and campaign to make a green and white paper process obligatory for all contentious bills – view here

It also reported on the Legislative Council’s decision to refer the proposal to the Procedure Committee of the Legislative Council – view here

We then made a submission to the Procedure Committee – view here. We also had further meetings with the Premier as well as Coalition, Labor, The Greens, One Nation, The Shooters, Fishers and Farmers, and Animal Justice members of the Procedure Committee to gauge their likely response to the proposal for a Green and White Paper process being obligatory for all bills of a contentious nature. Most were sympathetic but some questioned how to decide what were contentious bills and how to enforce a mandatory green and white paper process for such bills?

Further Proposal

As a result, we made a further submission to the Procedure Committee in January 2020 saying:

“We strongly believe that a Green and White Paper process should be an obligatory requirement for any contentious Bill introduced in the NSW Parliament.  However, if the Procedures Committee cannot agree on a Standing or Sessional Order mandating this, we request that as a minimum requirement every major Bill be accompanied by a Statement of Public Interest (SPI).”

A SPI would answer six fundamental questions that every member of Parliament and interested citizen is entitled to know before a Bill is considered., viz:

  1. Need
    Why is the policy needed based on factual evidence and stakeholder input?
  1. Objectives
    What is the policy’s objective couched in terms of the public interest?
  1. Options
    What alternative policies and mechanisms were considered in advance of the bill?
  1. Analysis
    What were the pros/cons and benefits/costs of each option considered?
  1. Pathway
    What are the timetable and steps for the policy’s rollout and who will administer it?
  2. Consultation
    Were the views of affected stakeholders sought and considered in making the policy?

An SPI questionnaire would take only a few pages for a bill’s proponent to answer in the affirmative or negative so would not be onerous to prepare.

The Procedure Committee inquiry received a dozen submissions from interested parties and published a discussion paper that included a section on the Green and White Paper policy-making process.

Committee’s Report

On the 15 September 2020, the Procedure Committee issued its report titled “Consultation on Highly Contentious Bills…” saying that a majority of submissions suggested that “a mandated Green and White paper process may be unnecessarily prescriptive and not appropriate for all government legislation.”

It also said that “a mandated Green and White paper process is ultimately a decision for the Government” and that “The House has no power to direct that a specific consultation process be undertaken for government legislation”.

Nevertheless, the Procedure Committee’s report said it had reviewed our alternative proposal…

“for a statement of public interest and sees some utility in the suggestion. The committee suggests that the Government consider the proposal to table a statement of public interest with each bill introduced. The committee will then review the standing orders in light of the Government’s response to this report.”

We then met again with Committee members who said their next move would depend on the Government’s response to the report which was required within six months of its issuance.

Government’s Response

Shortly before that 15 March 2021 deadline, we met with the Government Leader in the Upper House, the Hon Don Harwin, who said the Procedure Committee’s report had not been formally submitted to the Government, so it did not have to respond to it. Also, the Government normally responded to Select Committee inquiries into ministerial portfolio matters, not Procedure Committee inquiries into Parliamentary processes. When the deadline passed no response to the Committee’s report from the Government was recorded.

However, at the request of the then President of the Legislative Council, John Ajaka, Minister Harwin responded in writing to the Committee’s “suggestion” that the Government consider a Statement of Public Interest for all bills. He said it was not necessary because the Second Reading Speech of a bill was an adequate mechanism for justifying it was in the public interest.

Unfortunately, his assurance did not square with what Second Reading speeches provide in practice. Sixteen important NSW bills from 2018 to 2021 were examined by two think tanks; one conservative (Institute of Public Affairs) and the other progressive (Per Capita) at the behest of our Research Project.

The think tanks found that only five of the NSW bills were adequate in terms of being evidence and consultation based. Overall, NSW bills performed poorly compared to the other jurisdictions (lowest average of the four jurisdictions examined).

For all jurisdictions surveyed (Federal, NSW, Victorian, and Queensland governments), the two think tanks found that only 21 of 60 case studies of recent legislation broadly met good policy-making criteria as devised by Professor Kenneth Wiltshire AO of the Queensland University Business School and reflected in the questions of an SPI.

Further Report

At subsequent meetings with members of the Procedure Committee, we found a majority agreed with applying an SPI to all bills. Consequently, we pressed ahead for the Opposition and minority parties in the Legislative Council to move and vote for a Sessional Order to require all bills introduced in Parliament to be accompanied by a Statement of Public Interest (as outlined earlier).

In June 2021, the Procedure Committee decided to review all standing orders for the first time in 20 years. At the suggestion of the Opposition, we resubmitted our proposed Sessional Order to the Procedure Committee for consideration as part of its review of all standing orders. The Procedure Committee published its Review of Standings and Sessional Orders in March 2022. The report rejected our proposal because it could not reach a unanimous agreement on it.

The Opposition then agreed to submit a motion to the Legislative Council to amend the Procedure Committee report’s recommendations on new standing orders to include a provision for a Statement of Public Interest for all government bills. Limiting the requirement to government bills followed concerns by some of the minority parties that they did not have the resources to prepare such a statement for a private member’s bill.

Final Outcome

The motion moved by the Leader of the Opposition in the Legislative Council proposed that for every government bill other than (a budget bill), the Selection of Bills committee must report whether the bill is accompanied by a Statement of Public Interest that addresses the following questions:

  • Need: Why is the policy needed based on factual evidence and stakeholder input?
  • Objectives: What is the policy’s objective couched in terms of the public interest?
  • Options: What alternative policies and mechanisms were considered in advance of the bill?
  • Analysis: What were the pros and cons and benefits and costs of each option considered?
  • Pathway: What are the timetable and steps for the policy’s rollout and who will administer it?
  • Consultation: Were the views of affected stakeholders sought and considered in making the policy?

Also, a Minister introducing a bill must say whether such a statement has been prepared. If not, a motion may be moved without notice that the bill lapse until the statement is tabled, or that it be referred to a standing or select committee for inquiry and report.

If the motion is approved, further consideration of the bill won’t happen until the Statement of Public Interest is tabled or the committee has reported.

Our preference was for a motion requiring the government to prepare a Statement of Public Interest for all government bills, not just for the Bills Committee and the Minister introducing a bill to report whether that had been done or not. However, the Deputy Clerk of the Legislative Council, Steven Reynolds has assured us that the Opposition’s motion (which he helped to draft) “would achieve most of what you wish to achieve” in terms of obliging the Government to prepare such a statement for each of its bills.

The motion by the Opposition passed unanimously after the Government Leader in the Legislative Council, Damien Tudehop, reversed the Government’s opposition to a Statement of Public Interest for all its bills and said the Government would support the motion. The precise motion is reproduced in the appendix to this webpage.

Next Step

This advance in public policy accountability sets a precedent for all other parliaments and governments in Australia. It reflects a recent opinion poll that government accountability is one of the top four issues for voters (see https://www.abc.net.au/news/2022-04-22/vote-compass-federal-election-issues-data-climate-change-economy/101002116 The swing away from major parties).

Most credit must go to Penny Sharpe, Labour Leader of the House who moved the motion. Thanks, must also go to Mark Latham (One Nation) who introduced the original motion in Parliament that gave the issue traction. And David Shoebridge (Greens) who joined Latham in that quest. Last, but not least, Damien Trudehope, Government Leader in the Upper House, who reversed the Coalition’s long-standing opposition and instead endorsed the motion as a template not only for bills but also for other policy proposals to Cabinet. Animal Justice also supported the motion, and the Shooters Party went along with it too.

The success of this motion shows that if a group of citizens campaigns hard enough for a sensible governance change that is supported by research evidence with media coverage, our politicians will listen and act, even though the parliamentary approval process is painstakingly slow. Our next target? The new Federal Government and Parliament that hopefully will be receptive to an SPI, given its precedence in NSW.

Appendix

LEGISLATIVE COUNCIL

AMENDMENTS TO STANDING ORDERS TO INCLUDE A STATEMENT OF PUBLIC INTEREST, THURSDAY 19th MAY 2022

 

Amendment to standing order establishing Selection of Bills Committee

That the proposed standing order establishing the Selection of Bills Committee (136A) be amended by inserting the following new paragraph after paragraph (2):

For every government bill other than an appropriation bill for the ordinary annual services of government, the committee must include in its report a statement about whether the bill is accompanied by a Statement of Public Interest that addresses the following questions:

(a)       Need: Why is the policy needed based on factual evidence and stakeholder input?

(b)       Objectives: What is the policy’s objective couched in terms of the public interest?

(c)       Options: What alternative policies and mechanisms were considered in advance of the bill?

(d)       Analysis: What were the pros and cons and benefits and costs of each option considered?

(e)       Pathway: What are the timetable and steps for the policy’s rollout and who will administer it?

(f)        Consultation: Were the views of affected stakeholders sought and considered in making the policy?

 

Amendment to standing order 137 – First Reading

That standing order 137 be amended by inserting the following new paragraphs after paragraph (1):

(2)     After the first reading of a government bill introduced in the Legislative Council or received from the Legislative Assembly, on the bill being read a first time and prior to proceeding to any subsequent procedural motions, the minister must make a statement advising whether a Statement of Public Interest has been prepared.

(3)     If a Statement of Public Interest in relation to the bill has not been prepared, a motion may be moved without notice that the bill not proceed until a Statement of Public Interest is tabled, or that the bill be referred to a standing or select committee for inquiry and report.

(4)     The motions may be debated.

(5)     A member may not speak for not more than five minutes, and, if the motion is not sooner disposed of, after 30 minutes, the President is to interrupt proceedings to allow the mover of the motion to speak in reply for not more than five minutes.

(6)     If the question is agreed to, further consideration of the bill will be set down as an order of the day on the next sitting day after the Statement of Public Interest is tabled or after the report of the committee is tabled.

(7)     A motion ‘that the bill be considered an urgent bill’ under standing order 138 may not be moved until the statement required under paragraph 2 has first been made.