When the splendidly-named Urgent Relief for Single Age Pensioners Bill 2008 made its way into the House of Representatives just before 6pm yesterday, it was knocked back by the Speaker on the basis that it should have originated in the House. Anthony Albanese got up and moved a motion condemning the bill as unconstitutional. So there’ll be no Reps consideration of it, sparing Labor members the difficulty of having to record their support or opposition to a $30 a week increase for some pensioners.

The bill can’t be introduced into the Reps because, under Standing Orders, private members’ bills can’t appropriate money. Brendan Nelson got into trouble when he promised he would personally introduce the pensioner bill, because private members aren’t permitted to introduce such bills, as Laurie Oakes pointed out to an incredulous Joe Hockey at one point. And the bill shouldn’t have originated in the Senate either. Section 53 of the Constitution provides that “proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate.”

Pretty clear, you’d think, but not for Harry Evans, Clerk of the Senate.

Evans considers the Senate in general, and himself in particular, as the last bastion of defence against executive tyranny. Governments may get elected, but Evans — who is a public servant — thinks he is the true protector of the public interest. The fact that he is equally annoying to governments of both persuasions has tended to give him an untouchable status in the media.

But while Evans has been trotting out this bearded-Solon-of-the-Senate routine for years, it’s clear he’s starting to get carried away even by his own standards. When Nick Minchin asked him whether a bill lifting the pension rate could be introduced in the Senate, Evans replied with an airy wave that “there is no barrier to the introduction of such a bill.”

Except the Constitution, of course, but that seems to be neither here nor there to Evans.

Evans’s argument is that lifting the pension rate isn’t appropriating money because money is already appropriated for the pension and this bill just increases it. Evans also reckons there have been plenty of examples of such bills in the past. His argument, as Nick Greiner might say, is a nonsense. Based on Evans’s argument, s.53 of the Constitution could be ignored by merely linking expenditure bills to existing appropriations and increasing them. The Senate could originate appropriation bills whenever there was a suitable existing appropriation to be linked to.

Ian Harris, who as Clerk of the House of Representatives doesn’t quite have Evans’s profile, provided his own advice to the Speaker. It’s a polite but comprehensive demolition of Evans’s advice. Rather than referring vaguely to unspecified similar bills in the past, as Evans did, Harris goes to the trouble of carefully examining all the examples he can find, and shows how none of them did what the pensioner bill tries to do. In short, contrary to Evans’s advice to Minchin, there’s no precedent for the pensioner bill.

Evans is currently preparing a response to Harris. Hopefully it will contain much more detail than his initial advice. If he can uncover a precedent for his argument — and if nothing else Evans has a magisterial command of Senate history and practice — that might open the way to a significant change in legislative practice. But it’s unlikely to relieve the Urgent Relief bill, now adrift somewhere between the chambers.

This isn’t the first time Evans has demonstrated a rather eccentric interpretation of the powers of the Senate. A month ago, Crikey reported that Australian Public Service Commissioner Lynelle Briggs had ducked John Faulkner’s request to investigate the appalling behaviour of Health Secretary Jane Halton and her department in its evidence to a Senate inquiry into a review of Positron Emissions Tomography in 2000.

In that instance, Evans essentially advised Briggs that any instances of lying to Senate committees should be handled by the Senate itself. Briggs gleefully seized on the advice as an excuse to wash her hands of the matter, despite the obvious absurdity of claiming that the APSC couldn’t investigate breaches of the APS Code of Conduct.

In this instance, Evans’s advice has had the perverse consequence of protecting the executive — in this case the now-departed Howard Government — from investigation. It may have the same consequence for the current government in the future.

Evans might want to think about that next time he rides out to defend the privileges of the Senate.

Peter Fray

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