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Ch12 Senate amendments and requests / PROCEDURE FOLLOWING SENATE CONSIDERATION / Senate amendments which, in the view of the House, should be made as requests / Inquiries into the interpretation and application of the 3rd paragraph of s. 53

Database

House Practice

Date

01-05-2005

Source

House of Reps

Parl No.

41

Chapter

Senate amendments and requests

Chapter No.

Chapter 12

Page

438

Section No.

 

System Id

procedural/practcer/chapter12.13.doc


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Ch12 Senate amendments and requests / PROCEDURE FOLLOWING SENATE CONSIDERATION / Senate amendments which, in the view of the House, should be made as requests / Inquiries into the interpretation and application of the 3rd paragraph of s. 53



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House of Representatives                                Ch 12                                                 p 438

 

Senate amendments and requests / PROCEDURE FOLLOWING SENATE CONSIDERATION / Senate amendments which, in the view of the House, should be ma de as requests

 

Inquiries into the interpretation and application of the 3rd paragraph of s. 53

In 1994 the question of the interpretation and application of the provisions of the third paragraph of section 53 of the Constitution was referred by each Hous e to its respective Standing Committee on Legal and Constitutional Affairs. The Senate reference was partly transferred to its Procedure Committee in May 1996. In November 1995 the House committee, having earlier circulated and received comments on an exposure report, presented a comprehensive final report, canvassing in detail the issues involved and recommending, inter alia, that there should be a compact concerning the interpretation and application of the provisions of paragraph 3 between the Houses. Among other things, the committee recommended that:

  • the third paragraph of section 53 should be regarded as applicable to proposed laws relating to appropriation and expenditure (other than proposed laws appropriating revenue or moneys for the ordinary annual services of Government);

  • the third paragraph should continue to apply to a bill containing a standing appropriation where a Senate alteration to it would increase expenditure under the appropriation;

  • where a bill does not contain an appropriation, the Senate should not amend it to increase expenditure out of a standing appropriation, whether or not the bill itself affects expenditure under the appropriation;

  • a bill which increases expenditure under a standing appropriation should not be originated in the Senate;

  • the third paragraph should be regarded as applicable to tax and tax related measures; 1

  • fines, penalties, licence fees and fees for services should not be regarded as charges or burdens on the people for the purposes of the third paragraph;

  • bills which affect the tax base or tax rates should be originated in the House of Representatives;

  • the third paragraph applies to all Senate amendments which would increase a charge or burden on the people, including amendments which would increase a tax rate or expand a tax base regardless of whether the bill originated in the Senate or the House;

  • where a bill does not itself propose a charge or burden, the Senate should not amend the bill to increase the rate or incidence of taxation;

  • for the purposes of determining whether an alteration moved in the Senate to a bill increases a proposed charge or burden, the alteration should continue to be compared to the existing level of the charge or burden and not the level of the charge or burden proposed by the bill;

  • a request should be required where an alteration to a bill is moved in the Senate which will make an increase in the expenditure available under an appropriation or the total tax or charge payable legally possible;

  • the Houses should negotiate a procedure which would allow the Senate to make requests for amendments to bills originated in the Senate where the third paragraph prohibits a Senate amendment, the procedure being based on the provisions of the fourth paragraph of section 53 and the subject of a compact between the Houses. 2

    • In November 1996 the Senate Procedure Committee reported on the matter, proposing the terms of an agreement for the interpretation and application of the third paragraph, including provisions to the effect that:

    1. the paragraph should apply to bills in respect of appropriations only if such bills contain appropriations, or amend Acts which do so in such a way as to affect expenditure under the appropriation, and that it should not apply to bills originating in the Senate;

  • government ‘amending’ bills which increase expenditure should contain a clause appropriating the additional money and be classified as appropriation bills and be first introduced in the House;

  • where a government bill originating in the House amends an Act containing such an appropriation—before the moving of each proposed Senate amendment to such a bill, the responsible Senate Minister should state the Government’s view as to whether the amendment would affect expenditure from the appropriation and give reasons for that view;

  • a Senate amendment stated by a Minister to have the effect of increasing expenditure from such an appropriation would be moved as a request;

  • a similar approach in respect of bills ‘involving’ taxation—a proposed Senate amendment would be moved as a request where the Minister stated that it would raise the level of taxation;

  • a bill which increases the level of taxation or the amount of tax payable by taxpayers should be classified as a bill ‘imposing’ taxation—and therefore be first introduced in the House and not able to be amended by the Senate. (The committee recognised that if this provision was adopted the procedure in relation to bills ‘involving’ taxation would rarely be invoked.) 3

    • Notes commenting on the Senate committee’s proposals were presented to the House on 2 December 1996. 4 These notes drew attention to a number of matters, including the fact that the procedures recommended by the committee for the consideration of Senate alterations did not seem to cover ‘non-amending’ bills—that is, ‘original bills which contained a special appropriation clause’. It was pointed out that Senate alterations to such bills which led to increased expenditure were caught by the constitutional provision, yet the Senate committee’s proposals seemed not to allow for them. It was also pointed out that the report was silent on the question of the test or criteria to be applied to proposed Senate alterations.

    Since the House and Senate committee reports on the 3rd paragraph of s. 53, the House has someti mes shown its preference to avoid delaying the business of the Parliament with debates on the matter. On occasions when the Chair has drawn the attention of the House to Senate amendments where the position was unclear, the House has thought it appropriate not to take any objection. This position was taken in respect of the following bills:

    1. Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Period and Other Measures) Bill 1996
    2. Telecommunications Bill 1996
    3. Taxation Laws Amendment (Trust Loss and Other Deductions Bill) 1997
    4. Telecommunications (Consumer Protection and Service Standards) Bill 1999
    5. Telecommunications (Universal Service Levy) Amendment Bill 1999
    6. New Business Tax System (Thin Capitalisation) Bill 2001.


    See also , for example, views of Sir Kenneth Bailey, Sir Robert Garran (April 1950) and Attorney-General Duffy (Opinion 90/15078, November 1990).



    House of Representatives Standing Committee on Legal and Constitutional Affairs, The third paragraph of section 53 of the Constitution: final report , November 1995; PP 307 (1995).



    Senate Procedure Committee, Section 53 of the Constitution / Incorporation into the standing orders of continuing and sessional orders , November 1996.



    VP 1996-98/937.