ODGERS, James Rowland (1914–1985)
Clerk of the Senate, 1965–79

James Rowland Odgers, ‘the Odgers of the book’ and the eighth Clerk of the Senate, was largely self-educated. This was a key to his work. He was free of the prevailing and fashionable academic dogmas of his time. Instead, he learned his political science from the proceedings of the first constitutional conventions and the debates of the early Senate. He thereby anticipated by some decades the academic rediscovery of the constitutional principles he espoused.

He was born on 9 August 1914 in Adelaide, the third child of Matthew John Odgers, a mining engineer of Cornish origin, and his wife Lilian, née Edwards. It was perhaps significant that Odgers grew up in South Australia, the state of the great constitutional framer and first President of the Senate, Sir Richard Baker, and the state which gave its parliamentary procedures to the early Senate. Jim, as he would be known, attended Thebarton Public School, and Adelaide Technical High School from 1927 to 1929, where he undertook a commercial course, gaining qualifications in bookkeeping, shorthand and typing. Odgers joined the South Australian Public Service in 1930, qualifying in accountancy. He worked as a clerk in the Police Department until December 1933, and then as a magistrate’s associate in the Adelaide Local Court and as a court reporter.

In 1937 Odgers gained a position in the parliamentary reporting staff of the Commonwealth Parliament, which called for his combination of qualifications, and so moved to Canberra, a city he loved in spite of arriving on a dismal, fog-bound morning. He became an accountant in the Joint House Department in 1939, and then, in 1942, joined the Department of the Senate. His background in accountancy probably fed his subsequent interest in parliamentary control and scrutiny of public finance.[1]

While making his way up the ladder of promotion in the Senate Department, Odgers was impressed by the lack of an authoritative treatise on the procedures of the Senate, and decided to fill the void. He had already demonstrated a talent for writing; as early as 1948 he had a defence of the Senate published in the Australian Quarterly. Secreting himself in the Senate chamber, ‘where it was nice and quiet’ (presumably on non-sitting days) during his lunch hours, he read presidential rulings and procedural debates. His chief, J. E. Edwards, generously encouraged him in this work, and he drew upon earlier notes and compilations of precedents by Edwards. The result was Australian Senate Practice, the first edition of which was tabled in the Senate and ordered to be printed on 20 October 1953, to the acclamation of senators. Its appearance coincided with the enhancement of the effectiveness of the Senate following the introduction of proportional representation in 1949. Keeping the book up to date became an important part of his life’s work. Further editions followed in 1959, 1967 and 1972, by which time the author had become Clerk of the Senate and the work had become an established authority, widely read beyond the Senate, and known simply as ‘Odgers’. Then it was enmeshed in a controversy which now seems strange in the light of its content.

From the first, the book was not only a compendium of Senate procedures but an exposition and defence of the foundation principles of the Australian Constitution: federalism, bicameralism and the separation of powers. The system of government was intended by its framers to be based on division of power, on checks and balances; and the most conspicuous check and balance was the Senate. Odgers vigorously supported the legitimacy of the Senate rejecting or amending government legislation and inquiring into all matters of public concern and government operations. This position was contrary to the academic orthodoxy of the time, which regarded federalism as ‘a shabby halfway house on the road to true nationhood’, and institutional constraints on government, such as bicameralism, as undemocratic shams. Odgers’ credo resonated with traditionalists and some conservative politicians, but was in direct conflict not only with academia but with the doctrine of the Labor Party, which formally supported the vesting of all power in a central government with no upper house. At that stage, however, Labor senators did not regard the book as subversive; on the contrary, they joined in welcoming it.[2]

From 1950 to 1954 Odgers was Usher of the Black Rod and Clerk of Committees and one of his tasks was to act as secretary to the few Senate committees which then operated. The calibre of his work may be assessed by the effusive praise heaped upon him in a report of a committee in 1950. His work during this time convinced him that an expansion of the committee system for the scrutiny of legislation and public expenditure was the way of the future for the Senate. Backbench senators, largely consigned since the rise of rigid party discipline to the role of second-class cogs in party machines, were developing a taste for committee work and a renewed appreciation of their own significance in the political system because of the balance of numbers in the Senate.

This interest in the Senate as an inquiring body was pursued in early 1955 when Odgers gained a Smith-Mundt leader grant, awarded by the government of the United States, to travel to Washington to study the United States Senate and its committee system. It was significant that he chose not to make the pilgrimage to Westminster which was virtually compulsory for clerks of the British Empire, as it was still called, but set his sights on America, the source of the model for the Australian Senate. On his return he composed a comprehensive report on the subject, which clearly signalled his belief in an expansion of the Senate committee system as the means by which the Senate could better fulfil its constitutional responsibilities. The report was tabled in the Senate in May 1956 by the President, and greeted by Senator O’Sullivan, then Minister for the Navy and Leader of the Government in the Senate, as the product of ‘care, industry and skill’ and ‘a very valuable book of reference’. The Leader of the Opposition in the Senate, Senator McKenna counselled the author: ‘I know that he has a burning ambition to see the Senate play a major role in this Parliament. I merely say to him that, whilst he need not despair, he must be patient’. A government backbencher, Senator Marriott, expressed the desire to enhance the role of the Senate. The Menzies Government, however, reacted coldly to the notion of a batch of Senate committees emulating their inquisitorial United States counterparts. Ten years later, soon after he became Clerk, Odgers composed a paper recommending more Senate committee work, and provided it to the President and the Government. The paper was described by the Secretary of the Department of Prime Minister and Cabinet in a minute to the Prime Minister as ‘errosive [sic] of Government authority and responsibility’ and an undue extension of the Clerk’s role. The Government dismissed the paper. It would be fifteen years after the Washington visit before Odgers’ ambition of a comprehensive Senate committee system was achieved.[3]

As with all institutional innovations in the Senate, the support of senators themselves was crucial. During the 1960s the Senate appointed several select committees, which inquired into particular areas of public policy (largely uncontroversial) and then ceased to exist when they had reported. Participation in these committees gave an increasing number of senators an appreciation of committee work and a desire to establish some more permanent committee system. At the same time, the Senate tinkered with its procedures for dealing with the annual appropriation bills to extend the limited opportunity to consider the bills at the end of their passage after they were received from the House of Representatives. A procedure was devised for questioning ministers in the Senate about the bills before they were passed by the House. The consideration of the details of the bills in the chamber, however, was still a cumbersome process, and attention turned to the possibility of having committees examine the bills, with the potential for direct questioning of public servants.

In 1969 the time was ripe. Government backbenchers were keen on expanding their committee opportunities. The Leader of the Opposition in the Senate was Senator Lionel Murphy, an admirer of the American Congress, who wanted the Senate to follow its United States model in holding the executive government accountable, and who agitated for a committee system for that purpose. The Gorton Government did not have a majority in the Senate, and any changes would depend on consultation among senators and parties. Murphy was largely instrumental in having the Standing Orders Committee ask the Clerk for a report on a possible committee system for the Senate.

Odgers, well aware from experience of the resistance by government to an enhanced Senate committee system, prepared a modest report recommending the establishment of standing committees to examine areas of public policy which could be regarded as neglected. Murphy was not satisfied. He urged Odgers to ‘Go for the big one’, so a second report was prepared recommending a comprehensive standing committee system, covering all areas of government activity and able to inquire into any legislation, including appropriation bills, and other matters referred to the committees by the Senate. All references to Washington were eschewed; the reports referred only to the active committees of other ‘Westminster’ jurisdictions. The Standing Orders Committee passed the reports to the Senate without making its own recommendations. The Government, anxious to avoid a more radical proposal, but precluded from total opposition by the sentiments of its backbenchers, adopted the suggestion that committees examine estimates of expenditure. A scheme was devised, with the assistance of Odgers, for a system of estimates committees to hold hearings on the annual appropriations. The Opposition, led by Murphy, and with the support of a government backbencher, Senator Ian Wood, famous for frequently voting against his own government, moved for the comprehensive standing committee system. The end result, on 11 June 1970, was that the Senate, by a peculiar combination of numbers, adopted both proposals. Although it was ultimately decided to introduce the standing committees in stages following a subsequent report, also composed by Odgers, his dream had been realised. The essentials of the structure established at that time have continued to this day.[4]

Odgers was involved in advising senators of all parties on the parliamentary crises of the times. He made no secret of his institutional loyalty: his advice was always directed to maintaining the constitutional role of the Senate and the rights of individual senators. Although he also advised governments on how to progress their business, he never succumbed to the fallacy common to public servants, including some parliamentary staff, of equating parliament with government and assisting the slide down the slope of government domination of the legislature.

Soon after becoming Clerk he assisted a group of government backbenchers to hold the Menzies Government to a proper observance of the distinction in section 53 of the Constitution between appropriations for ordinary annual services of the government and other appropriations, a matter affecting the rights of the Senate.[5]

The greatest series of crises occurred in 1974 and 1975. The Whitlam Government, lacking a majority in the Senate, had many pieces of legislation rejected, but declined to resort to the double dissolution procedure in section 57 of the Constitution because of uncertainty about the result. In 1974 Prime Minister Whitlam decided to appoint the disgruntled former leader of the Democratic Labor Party (DLP), Senator Vince Gair, as Ambassador to Ireland. Under the system for filling casual vacancies in the Senate before the 1977 amendment of section 15 of the Constitution, this would mean that the vacancy would be filled at the impending Senate election (Senate and House of Representatives elections were then separated because of an early House election called by Prime Minister Menzies in 1963). This would give the Government a chance of obtaining another seat in the Senate at the election. The plot was foiled by the Premier of Queensland, Joh Bjelke-Petersen, issuing the writs for the Senate election before the appointment and the vacancy had occurred. It appeared that Odgers, with his incomparable knowledge of the Constitution, including the provision in section 12 whereby state governors issue writs for Senate elections, suggested this manoeuvre to the Queensland coalition senators when they asked him what they could do. Then the non-government parties in the Senate, outraged by Whitlam’s perfidy, blocked the annual appropriation bills in order to force the Government to an election. Whitlam accepted the challenge and, following the double dissolution, an election was held in May 1974. In his book, Odgers had referred to the power of the Senate to force a government to an election by ‘refusing supply’ (failing to pass the annual appropriation bills), and regarded that power as an essential safeguard of the federal system. There were precedents in the states.

Not only was that power exercised at the federal level to force an election for the first time, the exercise was repeated less than two years later. The Whitlam Government was returned in 1974, and with a better position in the Senate, but both the economy and the Government floundered and the coalition parties, without the support of any other group (the DLP had been eliminated in the 1974 election), again blocked the appropriation bills. This time Whitlam refused to go quietly, and was dismissed by the Governor-General, resulting in an election and a landslide victory for the coalition parties in both houses. Ironically, in view of subsequent events, Odgers was involved in advising both the Government and the Opposition during the critical events leading up to this denouement. For example, he drew up for the Leader of the Government in the Senate a compound motion whereby the appropriation bills could be forced through the chamber in one motion, a procedure which the parliamentary loyalist in him would have instinctively disliked. In a bizarre twist of fate, it was the incoming Fraser Government which took advantage of that motion to fulfil its undertaking to the Governor-General to secure passage of the bills before dissolving both houses for the election.[6]

Odgers was not particularly concerned about the Government gaining a majority in the Senate. There were plenty of coalition backbench senators with proven track records of independence from their party leaders who could be relied upon to prevent any winding back of the accountability measures, particularly the committee system, adopted by the Senate. In 1976 he produced the fifth edition of his book. Naturally it discussed the constitutionally momentous events of 1974 and 1975. He repeated his argument that the Senate’s power to ‘refuse supply’ was an essential safeguard, calling it federalism’s ‘safety valve’, and supported the legitimacy of the use of that power. He was careful not to say that the particular employment of it in 1974 and 1975 was legitimate; he regarded the occasion for its use as a matter for the political judgment of the majority of the Senate at the time. This subtle distinction was lost on some Labor Party senators. Embittered by the 1975 affair, they attacked both the book and the author. He was also criticised for making some alterations to the text after it was tabled in the Senate, a practice which had attracted no attention with earlier editions. The rational approach would have been for the Labor Party to welcome the book as a valuable treatise on Senate procedures, as they had in the past, while registering their disagreement with its thesis on appropriation bills. Rationality, however, was in short supply. Author and book were marked down as enemies of the party, except by some of its more sober members.

Subsequently Odgers argued against all those proposals to ‘fix the problem of 1975’, which involved reducing the safeguard of the Senate’s powers, while proposing his own solution: a mandatory dissolution of both houses should the Senate ‘refuse supply’. He advised senators who participated in the appointed constitutional conventions which considered this and other questions.[7]

His involvement in crises did not end with the relatively tranquil early years of the Fraser Government. In 1977, in a stunning reversal of its vociferously expressed view in Opposition, the Government decided to put forward a referendum proposal to allow a periodical Senate election to be held whenever the government called a House of Representatives election. This was transparently designed to avoid a separate Senate election which could otherwise have occurred because of the backdating of senators’ terms following a double dissolution. A band of coalition senators refused to abandon their principles, and opposed the Government in the Senate and in the referendum campaign. The proposal was defeated. The Government then held an early House of Representatives election to coincide with the Senate election, without suffering any significant loss in either house. Odgers was credited with arming the dissident senators with many of the arguments and authorities to oppose the change. An extensive press profile of him at the time included a very well-drawn cartoon which succinctly captured the character of the defender of the Constitution.[8]

His impartiality, in the sense of not favouring any political party, was as undoubted as his devotion to the institution of the Senate, but the advice he gave often led him into conflict with senators when it related to matters of partisan dispute. Shortly before his retirement he remarked that he took pleasure in being described as an adherent of the Australian Democrats, who had just appeared upon the scene, because this meant that he had been accused of supporting every political party represented in the Senate over his forty-two years of service.

While he had firm views on constitutional and parliamentary matters, and never hesitated to express them, his practice was to consult with others knowledgeable in parliamentary lore, including his colleagues in the Senate Department, before putting pen to paper. Their status was not an issue if they had a contribution to make.

His interest in procedural innovations did not end with the establishment of the committee system. He continued to propose measures to improve the operations of the Senate. He supported, for example, giving persons named adversely in the Senate a right to reply in the parliamentary record. This procedure was not adopted by the Senate until 1988, and has since been followed by other houses.[9]

Odgers retired in 1979, as he was required to do at age sixty-five under the legislation then applying. The question soon arose of the continuation of his book. He was urged by senators and other users of the work to bring out another edition, and he continued to update it. In 1982, at his request, the Clerk, Alan Cumming Thom, asked the Standing Orders Committee of the Senate to support the publication of the next edition. This process need not have been adopted; the book could have been published privately without the involvement of the Senate. Odgers said, however, that he thought it was the courteous course to consult senators to ascertain whether there would be support in the Senate for another edition. Labor Party senators on the committee bitterly opposed the official publication of another edition, and, after eighteen months before the committee, the proposal was dropped in 1983 to avoid a political fight. By then the Hawke Labor Government was in office, and, although the Government did not have a majority in the Senate, it would have been undesirable to have the Senate dividing on whether to print the work. Subsequently, Labor senators expressed regret about what had happened.

After Odgers’ death a new edition was indeed published privately, with the support of the Royal Australian Institute of Public Administration (as it was then known), in 1991. This sixth edition was tabled in the Senate by a coalition senator, Senator Peter Durack, former Attorney-General, and, strangely in the light of the earlier controversy, its tabling was not opposed. The responsibility for updating the work was assumed by the Clerk with the approval of the Odgers family in 1995. A seventh edition, extensively revised, was tabled in that year, and subsequent editions followed. The book was renamed Odgers’ Australian Senate Practice as a tribute to its original author and to preserve its common title. Odgers said that he was untroubled by the initial failure to publish the sixth edition. In his retirement he was consoled by the principles he had espoused for over forty years coming into favour, even among academics. The old orthodoxy was largely overthrown, and distinguished works appeared with positive evaluations of federalism and checks and balances. He was a vindicated pioneer.[10]

Odgers was a moderately tall, lean man of distinguished appearance and dignified carriage. He had the modesty, gentlemanly manners and respect for tradition and duly constituted authority characteristic of the best of his generation. On 2 January 1939 he had married Helen Jean Horner, a typist, at St Paul’s Church of England, Adelaide. Also born in Adelaide, Jean later joined him in Canberra. The couple had three children. Odgers was invested as a Commander of the Order of the British Empire in 1968 and a Companion of the Order of the Bath in 1980. He died suddenly on 30 July 1985 at his home at Phillip in the Australian Capital Territory. In reporting his passing to the Senate, the then President, Senator Douglas McClelland, referred to Odgers’ attendance eight days before his death before a committee of the New South Wales Legislative Council, to give evidence on a committee system for that house. It was not only, as the President said, a tribute to his knowledge and experience, but a sign that he continued the great work of his life to the end.[11]

Harry Evans

[1] This entry draws upon the transcript of an oral history interview by James Rowland Odgers with Robert Linford in 1985 for the Parliament’s Oral History Project, CPL, TRC 4900/105, NLA, and personal knowledge of the author; Adelaide Technical High School Magazine, Dec. 1929, p. 36; Odgers, James Rowland, Department of the Senate personal history file, A8804, NAA.

[2] J. R. Odgers, ‘The Senate—Case for the Defence’, Australian Quarterly, Dec. 1948, pp. 87–93; Odgers, Transcript, p. 2:1; CPD, 20 Oct. 1953, p. 668; Tony Rutherford, ‘Learning to Love Australia’s Constitution’, Agenda, vol. 3, no. 4, 1996, pp. 503–5; Brian Galligan, A Federal Republic: Australia’s Constitutional System of Government, CUP, Cambridge, 1995, pp. 53–61.

[3] CPP, S1/1950, p. xxxii; CPP, 36/1956; CPD, 15 May 1956, p. 702, 21 June 1956, pp. 1843–4; Memorandum, E. J. Bunting to Prime Minister, 15 Aug. 1966, Letter, E. J. Bunting to F. H. Wheeler, 22 Aug. 1966, A4940, C916, NAA.

[4] J. R. Odgers, Australian Senate Practice, 4th edn, AGPS, Canberra, 1972, pp. 364–6; Odgers, Transcript, pp. 1:9–10; CPP, 2/1970; CPD, 4 June 1970, pp. 2047–74, 11 June 1970, pp. 2342–67, 19 Aug. 1970, pp. 103–9.

[5] Odgers, Australian Senate Practice, 4th edn, pp. 318–32.

[6] Odgers, Australian Senate Practice, 4th edn, pp. 362–4.

[7] J. R. Odgers, Australian Senate Practice, 5th edn, AGPS, Canberra, 1976, p. 4; CPP, 1/1977; CPD, 15 Mar. 1977, pp. 128–35.

[8] National Times (Syd.), 25 Apr. 1977, pp. 11–12.

[9] Alan Cumming Thom, Obituary of James Rowland Odgers, Table, vol. LIV, 1986, pp. 7–8.

[10] Odgers, Transcript, pp. 2:1–3; CPD, 20 Aug. 1985, p. 26, 15 Oct. 1991, pp. 2061–3; Jean Holmes and Campbell Sharman, The Australian Federal System, George Allen & Unwin, Hornsby, NSW, 1977, p. 7; Brian Galligan, ‘The Founders’ Design and Intentions Regarding Responsible Government’, in Patrick Weller and Dean Jaensch (eds), Responsible Government in Australia, Drummond Publishing for the Australasian Political Studies Association, Richmond, Vic., 1980, pp. 1–10. In 1979 the Labor Party removed from its platform the policy of abolishing the Senate, a policy that had been ignored in practice for many years.

[11] CPD, 20 Aug. 1985, p. 24.

This biography was first published in The Biographical Dictionary of the Australian Senate, vol. 3, 1962-1983, University of New South Wales Press Ltd, Sydney, 2010, pp. 557-564.

ODGERS, James Rowland (1914–1985)

Department of the Senate

Commonwealth Parliament

Clerk of the Senate, 1965–79

Deputy Clerk of the Senate, 1964–65

Clerk Assistant, 1955–64

Second Clerk Assistant, 1954–55

Usher of the Black Rod and Clerk of Committees, 1950–54

Clerk of the Records and Assistant Clerk of Committees, 1944–50

Clerk of the Papers and Accountant, 1942–44