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House of Representatives                                Ch 9                                                 p 334

Constitutional validity

In 1935 the Solicitor-General advised that the absolute majority requirement for the suspension of standing orders appeared to be invalid:

In my opinion, every matter before the House which is proposed in the form of a motion, and upon which a question is subsequently put, is a ‘question arising’ in that House, and must be determined by a majority of votes, as provided by section 40.

The power given by section 50 to each House to make rules and orders with respect to the order and conduct of its business and proceedings does not confer power to make rules and orders which are inconsistent with the Constitution. The provisions of section 40, interpreted in the manner I have shown, are of general application, and cannot be cut down by rules or orders made under section 50. ¹

The provision was considered by the Standing Orders Committee during the 1962 revision of the standing orders. The question of omitting the absolute majority requirement in accordance with the 1935 opinion was canvassed, but no decision to alter the requirement was reached. During the committee’s consideration, the Attorney-General, referring to what is now standing order 47(c), advised:

Strictly as a matter of law, I would myself think S.O. No. 400 is invalid, as being inconsistent with the express provisions of section 40 of the Constitution. That section, as quoted above, provides that questions arising in the House shall be determined by “a majority of votes”. I do not myself think it is open to the House to adopt a Standing Order the effect of which is to declare that certain questions are to be determined not by a simple majority but only by an absolute majority. The then Solicitor-General so advised in 1935, and in my view correctly. But this is a matter for the House itself, and not for any court of law, and it is to be noted that in 1950 the House adopted S.O. No. 400 in its present form, thus, in substance, declining to give effect to the opinion that Sir George Knowles had expressed in 1935.

In these circumstances I think the Speaker has strong warrant for applying S.O. No. 400 when occasion arises, notwithstanding any doubts as to its validity. ²

Senate standing orders have a similar requirement for an absolute majority for motions without notice to suspend standing orders (Senate S.O. 209), and also for motions to rescind an order of the Senate (Senate S.O. 87). As in the House, the Senate has accepted that such standing orders are in force, despite doubts raised in the past as to their constitutional validity. ³

Opinion of Solicitor-General, dated 17 September 1935.

In a letter to the Treasurer, dated 3 April 1962.

Odgers , 11th edn, pp. 219-20.