Through the lens of accountability: referral of inquiries by ministers to upper house committees

The New South Wales Legislative Council is alone among upper houses around Australia in providing for the referral of inquiries to committees by a minister of the Crown. The resolution establishing the standing committees upon the commencement of each parliament states that a committee ‘is to inquire into and report on any matter relevant to the functions of the committee which is referred to the committee by resolution of the House’, and that a committee ‘may inquire into and report on any matter relevant to the functions of the committee which is referred by a Minister of the Crown’. While such references are common amongst lower houses, they stand at odds with the Senate model of referrals only via the chamber itself, and challenge core principles of bicameralism that emphasise the role of the upper house in holding the executive government to account. Allowing the government of the day to determine the work of an upper house committee is anathema to the principle that the house of review is independent of executive government and is master of itself and its subsidiary bodies. It is the autonomy of the upper house which enables it to examine the matters it sees fit. Yet ministerial references to Legislative Council standing committees have been in place for 25 years and are taken for granted by members of all political persuasions as a valuable component of the Council’s committee system. This paper defends the Legislative Council’s provision for ministerial references to standing committees, using the Law and Justice Committee as a case example. Referring to historical debates informing the establishment of the committee system, it reveals that the Council’s standing committees were intended by both government and opposition members to