By Anne Twomey Tuesday 15 Jul 2014

Photo: The Palmer United Party will find they are going to be heavily reliant on the advice of the clerks. (AAP: Alan Porritt)

It is a big call for any new parliamentarian to back their constitutional knowledge over that of a professional who has served the Senate with distinction for decades, writes Anne Twomey.

Clive Palmer's attack on the Clerk of the Senate for giving advice upon his proposed amendments to the carbon tax repeal bill appears to show a lack of understanding of the Constitution and the role of the Parliament under it.

Last week, the Clerk of the Senate, Rosemary Laing, apparently advised the Palmer United Party that its amendment to the carbon tax repeal bill ought to be initiated in the House of Representatives, rather than the Senate, because it might be regarded as imposing a tax. This was to comply with rules set out in the Constitution.

Clive Palmer reportedly responded by saying she should "get out of that job" if she was not prepared to act on his instructions. Yet it is an essential part of the clerk's job to advise senators upon compliance with the Constitution and the procedural rules of the Senate, rather than simply taking instructions.

The Constitution establishes the institutions of government, such as the Parliament and the courts, confers powers upon them, and imposes limits on those powers. In most cases those limits can be enforced by the courts if someone brings a constitutional challenge. In some cases, however, the Constitution imposes the responsibility upon key actors, such as parliamentarians or ministers, to respect and apply the rules of the Constitution.

When it comes to the powers of the Senate in relation to money bills, there is a very delicate balance between the role of the courts and the role of the Houses in applying and enforcing the rules.

Section 53 of the Constitution sets out most of these rules. It says that bills imposing taxation shall not originate in the Senate. They must first be passed in the House of Representatives. This is because of the principle that the power of the purse lies in the hands of the representatives of the people in the Lower House. For the same reason, section 53 also says that the Senate may not amend any bill so as to increase any proposed charge or burden on the people.

Difficult questions sometimes arise as to whether a legal requirement that someone pay an amount to the government is really a tax or a penalty. Section 53 says that a bill is not to be regarded as imposing taxation if it just imposes a pecuniary penalty or a fine. Mr Palmer may argue that this is all his party's amendment was proposing to do - to impose a penalty. However, there is an enormous amount of complex law on the question of whether an exaction of money amounts to a tax or a penalty, so one needs to be very cautious in this area.

So far, the High Court has regarded section 53 as 'non-justiciable'. This means that it will not enforce the requirements of section 53. Rather, it is the responsibility of the members of the Houses of Parliament to abide by these rules.

That does not mean that politicians can do what they want because the courts will not enforce the rules. On the contrary, it means that politicians are under a very solemn constitutional obligation to comply with these rules.

Members and senators rely on the independent advice of the clerks to ensure that they are complying with the Constitution and meeting their constitutional obligations. The clerks have long experience in the intricacies of money bills and their advice is traditionally given great respect. It is a big call for any new parliamentarian to back his or her constitutional knowledge and parliamentary experience over that of a professional who has served the Senate with distinction for decades.

There are also other good reasons to be cautious. First, it may be that if parliamentarians were to start flouting section 53 of the Constitution, the High Court might change its mind and seek to enforce its provisions.

More importantly, the High Court has held that it will enforce section 55 of the Constitution. This provision states that laws imposing taxation shall deal only with the imposition of taxation and "any provision therein dealing with any other matter shall be of no effect". The consequence of this provision is that if the Palmer United Party inserted into the bill a provision that imposed taxation, it could torpedo the repeal of the carbon tax. Hence the need for caution and to listen to wise and experienced heads.

The senators of the Palmer United Party will find, in time, that in order to achieve anything in the Senate, they are going to be heavily reliant on the guidance and advice of the clerks and other officials of the Senate. Rather than railing against it, a better approach would be to respect it and to ask what alternatives would best achieve their goals. A constructive approach is more likely to succeed than a destructive one.

Anne Twomey is a Professor of Constitutional Law at the University of Sydney and in the 1990s was secretary of the Senate Legal and Constitutional Committee. View her full profile here.

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