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The Role of the Clerk in an Australian Legislature

By:
Russell D. Grove
Clerk of the Legislature
Assembly of New South Wales, Australia

Volume 6, Number 2 Fall 2000

The International Role of the Clerk
The following three articles are based on presentations by the authors on July 16, 2000, at the annual meeting of the National Conference of State Legislatures held in Chicago, Illinois.

The Role of the Clerk in an Australian Legislature

By: Russell D. Grove
Clerk of the Legislature
Assembly of New South Wales, Australia

Introduction

It has been said that Clerks in the Commonwealth Parliaments (of which Australia is a part) were the "transmission belts of parliamentary proprieties,"1 and that they are expected to "provide the golden thread that runs through the living tapestry of parliamentary life, holding together its pattern, colour and strength."2 Whilst this paper may not quite explain the role of the Clerk in an Australian legislature in those terms, it is hoped that it will provide an insight into the position.

Australia has ten parliaments (six bicameral and four unicameral), which consist of a federal parliament, six state parliaments, and three territory parliaments. Each of those parliaments is served by a Clerk (or in the case of a bicameral legislature, two Clerks) whose roles are very similar. Whilst this paper discusses mainly the role of the Clerk of the New South Wales Legislative Assembly, the roles and responsibilities are broadly consistent across the whole nation.

Background/History of New South Wales Parliament

Although comparatively Australia is a newer nation than the United States of America, it nevertheless has a long history of parliamentary government. An English Naval Captain, James Cook, discovered Australia in 1770. In 1788, Sydney was founded as a British convict colony. In 1824, a small legislative council was established to assist the British-appointed Governor in the governance, which was the first small step towards democratic government. In 1842, the British Parliament passed an Act which increased the size of the Council to 36, with 12 to be appointed by the Governor and 24 to be elected by men who qualified by owning sufficient property.

In 1855, the New South Wales Constitution Bill passed through the British Parliament, and under that statute, in 1856, New South Wales gained a fully responsible system of government. The Parliament was comprised of 54 elected members of the Legislative Assembly and 21 appointed members of the Legislative Council.

The Parliament today is housed in the same building as it occupied in 1829, and it now comprises 93 Members of the Legislative Assembly and 42 Legislative Councillors.

In 1901, Australia became a federation, with the creation of a Commonwealth and six state parliaments. Australia now has ten Parliaments – one federal, six state, and three territory.

Background/History of the Position of Clerk

The first Clerk of the New South Wales Legislative Assembly (who was also the first Australian Clerk of a popularly elected legislature) was Richard O’Connor, who was appointed in May 1856. Since that time, there have been 16 other Clerks (including myself) appointed over a period of 144 years of parliamentary history. While the position has no doubt increased its responsibilities over that period, the fundamental tasks remain the same.

What are the fundamental tasks of the Clerk? I acknowledge at the outset that this is a difficult and ambitious question to answer. In the Australian context the Clerk is usually the head of a Department or other entity that provides a broad range of support for the elected members of the jurisdiction they cover. Thus, for example, as head of the Department of the Legislative Assembly, I carry out similar functions as the Chief Executive Officer of a public service department. The range of tasks that I administer are contained in our Department’s corporate plan, which are as follows:

¨ provide the procedural support, advice, and research necessary for the effective functioning of the Legislative Assembly;

¨ provide services which support Members in their electoral and constituency duties;

¨ provide effective and professional administrative support and services to Members and to other client groups and maintain appropriate reporting mechanisms;

¨ provide a safe and healthy working environment, in which Members and staff can reach their maximum productivity;

¨ promote public awareness of the purpose, functions, and work of the Parliament; and

¨ maintain and enhance an appropriate physical environment for the conduct of parliamentary business while preserving the heritage value of Parliament House. 3

As can be seen from the above, the duties and functions of the Clerk are diverse and broad. Not only do they cover procedural tasks, but they also cover a wide range of administrative functions such as building management, provision of committee, research and library services, food and beverage services, information technology services, parliamentary education, security, and the recording and transcription of parliamentary proceedings.

Procedural Advice

The provision of procedural advice is a dominating feature of a Clerk’s role in an Australian state legislature. Advice is given to the Speaker (or other occupants of the Chair) to help ensure the smooth functioning of the Chamber. It is also provided to the Premier, the Leader of the Opposition, the Leader of the House, and all other Members on a daily basis when the parliament is sitting.

In Australian legislatures there is no "Mason’s" or "Jefferson’s" for the Clerks to rely on in relation to procedural advice, which I understand is used quite extensively in United States legislatures. Instead, reference is made to Erskine May’s Parliamentary Practice, as well as procedural texts from the Australian Commonwealth Parliament, Odger’s Australian Senate Practice, and Barlin’s House of Representative’s Practice. There is, of course, almost 150 years of parliamentary practice and procedure in the New South Wales Parliament, which is also drawn upon in formulating advice to Members.

Committees

Australian Parliaments have an extensive committee system, and the New South Wales Legislative Assembly is no exception. Currently there are seven statutory committees, two standing committees, one select committee, two joint committees, and three house committees. Committees play a similar role to that of American legislatures, although Committee Chairs are not as powerful as their U.S. counterparts. Whilst the committees cover the whole range of executive functions, they can only make recommendations for change, and the government of the day is under no obligation to implement the recommendations. The major difference is that in Australia bills are not automatically referred to committee for consideration even though provision is made for such referrals in the Standing Orders.

Even when the parliament is not sitting, the standing and select committees conduct numerous inquiries, and procedural advice is often sought by the Chair of the committee or any of its members.

Support Staff

To support the Clerk’s role in providing procedural advice, the Office of the Clerk is assisted by other staff in the Department, especially by the Deputy Clerk, Clerk Assistant Procedure, and the Clerk Assistant Committees. The staff under the supervision of the Clerk Assistant Procedure is responsible for ensuring the smooth functioning of the Chamber on a sitting day. The Clerk Assistant Committees is responsible for staff that provide procedural and administrative support for the numerous standing committees of the Legislative Assembly.

The tasks of these staff include the provision of advice to Members and staff on standing orders, drafting motions and questions, drafting amendments to Bills or motions, drafting committee reports and briefing papers, and providing copies of Bills and papers presented in the Legislative Assembly.

Responsibilities as Set Out in the Standing Orders

Like many U.S. state legislatures, a number of the Clerk’s tasks are set out in the Legislative Assembly’s standing orders made pursuant to the Constitution Act. Under our standing orders, the following main tasks are allocated to the position of Clerk:

¨ preside over the House after each general election until a new Speaker is elected, and conduct the secret ballot for the position of Speaker;

¨ record all votes, division lists and proceedings and, after each sitting publish and circulate the Votes and Proceedings, the Business Paper and the Questions and Answers Paper;

¨ take custody and control of all official records of the House;

¨ certify as correct all Bills originating in the Legislative Assembly and passed by both Houses of the Parliament and arrange for the Bill to be presented to the Governor for assent; and

¨ receive (when the House is not sitting) reports from Parliamentary committees and petitions, and present those documents at the next scheduled sitting of the Assembly.

Statutory Responsibilities

The position of Clerk in the New South Wales Legislative Assembly also has a number of statutory responsibilities. These range from an obligation to account for the management of the money appropriated for the operation of the Parliament to other matters that assist government agencies in meeting their reporting requirements to Parliament. It has become common practice for the Clerk to be the repository of documents that are to be presented to Parliament. This is only the case when the Parliament is not sitting, with the relevant Minister required by law to provide a copy of a report or another document (as specified in the relevant legislation) to the Clerk.

For example, the Royal Commissions Act 1923 has a clause (which is typical of other clauses in a number of acts) which sets out the Clerk’s role. Clause 14B of that Act states:

Release of reports when Parliament not sitting

_.14B. (1) If neither House of Parliament is sitting, the Minister may present to the Clerks of both Houses a report made by a commission.

(2) When the report has been presented to and received by the Clerks:

(a) the report is for all purposes to be taken to have been laid before each House and to be a document published by order or under the authority of each House; and

(b) without limiting paragraph (a), the report attracts the same privileges and immunities as if it had been laid before each House and published by order or under the authority of each House; and

(c) the report may be printed by the authority of either or both of the Clerks.

(3) Material may be omitted from such a report before its presentation to the Clerks of both Houses, on the recommendation of the commission or otherwise.

(4) The report is required to be recorded in the Minutes of Proceedings or Votes and Proceedings of the House on the first sitting day after it was presented to and received by the Clerk of the House.

As the Parliament sits for approximately 16 weeks a year, this mechanism of forwarding important documents to the Clerk is a useful one for the Executive. It allows for the accountability requirements of parliamentary democracy to be fulfilled even when the Parliament is not sitting.

Another important statutory responsibility for the Clerk is in relation to the declaration of pecuniary interests by Members. Pursuant to the Constitution (Disclosures by Members) Regulation 1983, a Member of the Legislative Assembly is required to lodge with the Clerk a return disclosing details of pecuniary interests held by the Member, including details of property owned, sources of income, contributions to travel, interests and positions in corporations or trade unions or other business associations, and any debts. The Clerk is required to compile and maintain a "Register of Disclosures by Members of the Legislative Assembly" and present a copy of the Register to the Speaker on a regular basis. The Speaker, in turn, is required to table the Register in the Legislative Assembly.

Administrative Head of the Parliamentary Department

The Clerk has a wide range of functions in respect of the management of the Parliament. As head of the Department of the Legislative Assembly with 279 employees, the position is responsible to the Speaker for the provision of a wide range of services for the 93 elected Members of Parliament. This includes the provision of:

¨ financial services, including paying Members’ salaries and allowances;

¨ members services, including office leasing and fitout;

¨ employee services for Members and staff, including industrial relations;

¨ procedural services;

¨ committee services to support the 14 committees administered by the Legislative Assembly; and

¨ attendant or messenger services.

Together with the Clerk of the Legislative Council, I am also responsible for a range of administrative services provided jointly to both Houses of Parliament, including:

¨ food and beverage services;

¨ building services;

¨ information technology services;

¨ transcription and editing services;

¨ parliamentary archives;

¨ printing services;

¨ library and research services;

¨ education and community relations section; and

¨ security.

The employees of the joint services total 204 staff.

The Clerk is therefore often the first point of contact for Members on not just parliamentary matters, but also administrative issues. Although the public profile is one of being on the floor of the House providing advice to the Speaker, the Premier, and other Members, there are also many administrative tasks that are dealt with behind the scenes. For this reason, the Clerk often has to rely on the support of the Deputy Clerk and the two Clerk Assistants to fulfil the requirements of high level procedural advice in the Chamber when the Parliament is sitting.

Appointment and Dismissal of Clerk

One of the main differences between the Clerk of an Australian State Legislature and the U.S. counterpart is the method of appointment. Unlike the situation in the United States, Clerks in the Australian Parliaments are not elected to their position. They are appointed by an Executive Council (comprised of the State Governor and certain Ministers of the government), on the recommendation of the Speaker of the day. Some Australian Parliaments have recently adopted the practice of advertising the position of Clerk. The more common practice is that when a Clerk resigns or retires, the Deputy Clerk, who has usually served in that position for a number of years, is recommended to the position of Clerk.

The precise method of appointing a Clerk in New South Wales is not set out in any standing order or legislation, which is slightly unusual for Australian Clerks. Nor is there a procedure for removing a Clerk, although in some Australian Parliaments there is provision for termination of the appointment of the Clerk by way of the legislature passing a resolution (of which six days’ notice is required). The resolution must state the ground for termination as either:

¨ misbehaviour;

¨ incapability, because of physical or mental incapacity, of performing duties; or

¨ insolvency.4

Once appointed, the Clerk takes the oath of allegiance before the Governor, and a second oath (oath of office), which is taken from the practice of the British Parliaments’ House of Commons - "to make true entries, remembrances and journals of things done and passed during my continuance in Office as Clerk of the Legislative Assembly." 5

Impartiality

The position of Clerk in the Australian parliaments is one where impartiality is an integral part of the role. Clerks often have to serve presiding officers of different political persuasions, not to mention also serving Governments and Oppositions from different political parties, and of course, Independent members. It has been stated that the fundamental requirements of "clerkly" service are: profound party political impartiality (but not neutrality towards the ideals and principles of the institution even if, indeed particularly if, any party is inclined to undermine or abuse them); dedicated service to the institution through serving its members as effectively as possible; and sincere respect for the institution through personal respect for its members.6 These requirements are practised by all Australian Clerks.

Another good description of the impartial nature of a Clerk’s duties was written in 1960 (but which is still relevant today). In an article written by the Clerk of the Lok Sabha, India, it was stated that:

A parliamentary official, unlike his counterpart in the civil service, comes daily in contact with all sections of political opinion in the country. A Government is generally composed of persons who belong to a party having one ideology. A civil servant is required to execute the policies laid down by Government, and he knows his master’s mind and follows the policy. A parliamentary official on the other hand has to serve simultaneously both the Government of the day and those who are opposed to it. He has to hold a balance between the ruling party and those who are opposed to the very existence or ideologies of that Party. This involves a tremendous strain and requires a mind and approach which must be regarded as uncommon.7

The impartial nature of the role of the Clerk means that the occupant of the office can provide assistance to all members of the House without fear or favour. This is a fundamental task of a Clerk, but one that is not often well understood by public servants who only respond to the demands of the government of the day.

Conclusion

The functions of a Clerk in an Australian state Parliament have many similarities to that of their counterparts in the United States state legislatures, and this paper has listed many tasks with which U.S. Clerks will be very familiar. After all, our British colonial origins are the same. The method of appointment of the Clerk is the one clear difference.

As our system of parliamentary government is different, there are also other differences which affect the way Clerks perform their duties. For example, the separation of powers is not as distinct in Australia, with the Executive being drawn from Members of both Houses and the Premier being a Member with a constituency that faces re-election every four years. Another difference is very strong party discipline, with Members of a party almost always voting as a bloc, with conscience issues (i.e. abortion, euthanasia) the rare exceptions. And, in a significant difference, there is a less powerful role for the Speaker in an Australian parliament, as the position is usually filled by a person with long parliamentary service, but who is usually a backbencher and who has had no leadership or ministerial experience.

Because of these differences, there are variations in the Clerk’s style of operation that flow from those distinctions listed above. However, there are many tasks, functions and roles that are the same.

There is very little written about the position of Clerks in the Australian context, and more often than not the people who best know and understand the role of the Clerk are the elected members who utilise our services and with whom we are in almost daily contact. In conclusion, I would like to offer what was said by one long-serving and quite prominent Prime Minister of Australia and quoted in a valedictory speech for a retiring Clerk. No doubt those silent Clerks amongst us will find the following passage of verse of interest. The verse reads as follows:

Two wise old owls sat at the table

Their wigs were grey, their gowns were sable
They looked so sad, so melancholy
As if depressed by human folly
Around them, carelessly displayed
Were all their dreadful tools of trade
The standing orders, Votes and motions
The Statutes, May and such like notions
The glass, with sand so neatly piled
The rulings (wrong) so neatly filed
The bells to call the members in
To tread the paths of verbal sin
But wise old owls must sometimes think
Of what? Of women? Food? or Drink?
Or are they, as they keep their places
As really vacant as their faces?8

To answer the question posed in the verse – of course not! It is just part of the mystery of being a good Clerk.

ENDNOTES

1 Alan Cumming Thom, The Role of the Clerk, Paper presented to the Eighteenth Conference of Presiding Officers and Clerks, May 1987, p. 1.

2 Ibid, p. 2.

3 Department of the Legislative Assembly, Annual Report 1999, NSW Legislative Assembly, Sydney, p. 5.

4 I.C. Harris, Commonwealth Parliamentary Service Act, paper presented to Professional Development Seminar, Society of Clerks at the Table Australian Chapter, Adelaide, South Australia, 24-5 January 2000, p. 3.

5 Erskine May, Parliamentary Practice, 22nd edition, Butterwoths, London, 1997, p. 185.

6 Peter O’Keefe, ‘Clerks and Members of Parliament; A personal view of the Relationship in Australia’, The Table (1990), Vol. LVIII, p. 55.

7 S.H. Shakdher, ‘An Ideal Parliamentary Official’, The Table (1960), Vol XXIX, pp. 18-9.

8 Australia, House of Representatives, Debates, 6 May 1982, p. 2342.

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