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Procedure—Senate Standing Committee—Reports—2017—1st report—Hours of meeting and routine of business; Tracking public interest immunity claims; Absence of a senator during a vote due to misadventure; Mode of dress for senators and possible ‘time out’ rule; Parliamentary Code for respecting cultural diversity and proposal to amend standing order 193—Dated December 2017


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The Senate

Procedure Committee

Hours of meeting and routine of business

Tracking public interest immunity claims

Absence of a senator during a vote due to misadventure

Mode of dress for senators and possible ‘time out’ rule

Parliamentary Code for respecting cultural diversity and

proposal to amend standing order 193

First report of 2017

December 2017

© Commonwealth of Australia 2017

ISBN 978-1-76010-696-6

This document was produced by the Office of the Clerk of the Senate and printed by the Senate Printing Unit, Parliament House, Canberra

MEMBERS OF THE COMMITTEE

Senator the Hon Scott Ryan (President of the Senate, Deputy Chair)

Senator Sue Lines (Deputy President and Chair of Committees, Chair)

Senator the Hon George Brandis QC (Leader of the Government in the Senate)

Senator the Hon Penny Wong (Leader of the Opposition in the Senate)

Senator Catryna Bilyk (Tasmania)

Senator David Bushby (Tasmania)

Senator the Hon Mitch Fifield (Victoria)

Senator Katy Gallagher (Australian Capital Territory)

Senator Rachel Siewert (Western Australia)

Senator Dean Smith (Western Australia)

Committee contact details

Committee on Procedure The Senate PO Box 6100 Parliament House

CANBERRA ACT 2600

Telephone: (02) 6277 3350 E-mail: clerk.sen@aph.gov.au Internet: www.aph.gov.au

Procedure Committee

First report of 2017

The committee reports to the Senate on the following matters.

Hours of meeting and routine of business The committee noted the work of a procedural working group comprising senators representing the parties and the crossbench, dealing with nominated elements of the routine of business. Following consideration by the working group, the committee agreed to recommend changes to the hours of meeting and routine of business, as follows:

• provide for 5-minute speeches, rather than 10-minute speeches, on the Wednesday adjournment, so that more senators may participate

• remove the option for 20-minute speeches on the Tuesday adjournment

• require that speakers’ names for the Tuesday adjournment be provided to the Government Whips’ Office by 5pm, but that this be a matter of practice not codified in the standing orders, and that senators may nevertheless speak if the need arises

• provide for an earlier start to sittings on Tuesday (noon, instead of 12.30pm), in line with the House of Representatives

• move consideration of private senators’ bills from Thursday morning to Monday morning.

The committee agreed that the proposed changes should take effect from the next sitting week until 30 June 2018, and would be reviewed by the committee before that date.

Recommendation 1

The committee recommends that the Senate adopt the proposed amendments to the standing orders in Appendix 1, and that the changes take effect as temporary orders from the next sitting week until 30 June 2018.

The committee also considered, but did not reach agreement on, proposals from the working group to change arrangements for motions to take note of answers, under standing order 72(4). The committee notes that crossbench senators continue to be concerned about current opportunities to contribute to debate on such motions.

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Tracking public interest immunity claims The committee noted that there has been some improvement in adherence to guidance in the committee’s second report of 2015 about practices which should be followed in making public interest immunity claims.

However, the committee also noted that rates of compliance with orders were reasonably low and considered that there may be scope for compliance efforts to be sharpened by an order of continuing effect requiring governments to report to the Senate every 6 months on orders that remain on the Notice Paper.

Recommendation 2

Accordingly, the committee recommends that the Senate adopt an order of continuing effect in the following terms:

Report on outstanding orders for documents

(1) That there be laid on the table by the Leader of the Government in the Senate, not later than 2 calendar months after the last day of each financial year and calendar year, a list showing details of all orders for the production of documents made during the current Parliament which have not been complied with in full, together with a statement indicating whether resistance to them is maintained and why, and detailing any changing circumstances that might allow reconsideration of earlier refusals.

(2) This order is of continuing effect.

Absence of a senator during a vote due to misadventure The committee considered a letter from Senator Reynolds, referred by the then President, requesting that it review the circumstances of a senator’s absence for a vote on 11 May 2017, and a request on the next day of sitting (13 June) that the vote be taken again. The committee endorsed a background note about ‘misadventure’, the circumstances of the particular matter, and options for rescinding and revisiting votes. The note is published at Appendix 2.

Mode of dress and a possible ‘time out’ rule The committee considered matters referred to the committee by then President Parry on 4 September 2017, and the possible ‘time out’ rule for the Senate attached to the referral (Appendix 3). The committee noted that, President Parry had indicated that he would not support introduction of the ‘time out’ rule unless there was broad support for it. Committee members indicated that there was not broad support for the proposal, and the committee resolved that the proposed time out rule should not progress.

On the question of the need to implement an order relating to the dress of senators, the committee agreed that existing rules were sufficient and that current practice (which leaves choice of dress to the good judgement of senators) should continue. The

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committee agreed to incorporate in its report the exhortation to senators in the last part of President Parry’s statement to the Senate on 4 September 2017, namely:

I again reiterate that the mode of dress is a matter for all senators but would ask that the respect and dignity of the Senate is forefront in the minds of each and every one of us when making such decisions.

Parliamentary Code for respecting cultural diversity and proposal to amend standing order 193—Rules of debate The committee considered the two matters referred by the Senate on 6 September 2017 (Appendix 4) but did not agree to adopting the proposed code as an order of the Senate, and did not agree to the amendments proposed to standing order 193.

Senator Sue Lines

Chair

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APPENDIX 1

Hours of meeting and routine of business

Proposed changes to adjournment debates

Amendment to standing order 54(5) to provide for 5-minute speeches, rather than 10-minute speeches on Wednesdays. Amendment to standing order 54(6) to remove the option for 20-minute speeches during the open ended adjournment on Tuesdays.

54 Adjournment without motion

(5) Except on Tuesday On Monday and Thursday debate on the question for the adjournment shall not exceed 40 minutes, and a senator shall not speak to that question for more than 10 minutes on any day.

On Wednesday debate on the question for the adjournment shall not exceed 40 minutes, and a senator shall not speak to that question for more than 5 minutes.

On Tuesday at the conclusion of debate, and on other days at the expiration of 40 minutes, at the conclusion of debate, or at the time specified for adjournment, whichever is the earlier, or if there is no debate, the President shall adjourn the Senate without putting the question.

(6) On the question for the adjournment of the Senate on Tuesday, a senator shall speak to that question for not more than 5 minutes, except that , in accordance with the following paragraphs:

(a) if no other senator wishes to speak for up to 5 minutes, a senator who has not already spoken may speak for up to 10 minutes; and

(b) if no other senator wishes to speak under paragraph (a), a senator who has not already spoken may speak for up to 20 minutes.

Meeting times

Amendment to standing order 55 to add 30 minutes at the start of sittings on Tuesdays.

55 Times of meetings

(1) The days and times of meeting of the Senate in each sitting week shall be:

Monday 10 am - 6.30 pm, 7.30 pm - 10.30 pm

Tuesday 12.30 pm midday - adjournment

Wednesday 9.30 am - 8 pm

Thursday 9.30 am - 8.40 pm.

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Private senators’ bills

Amendments to standing order 57 and 59 to move consideration of private senators' bills general business from Thursday to Monday and provide for government business to occur at the start of the day on Thursdays.

57 Routine of business

(1) The routine of business shall be:

(a) On Monday:

(i) General business orders of the day for consideration of bills only (ia) At 12.20pm, government business only …

(d) On Thursday:

(i) General business orders of the day for consideration of bills only for up to 2 hours 20 minutes (i) Government business only (ii) At 11.45 am, Petitions …

59 Government and general business

Government business shall take precedence over general business, except that general business shall take precedence over government business as follows:

(a) On Mondays, from 10 am until midday until 12.20 pm general business orders of the day for the consideration of bills shall be considered; and

(b) from not later than 4.30 pm, for a period not exceeding 2½ hours, general business orders of the day shall take precedence over general business notices of motion on alternate Thursdays.

APPENDIX 2

Matter raised by Senator Reynolds - Misadventure and explanations for a senator’s absence from a vote

The then President referred a request, from Senator Reynolds, that the committee review the circumstances of the vote on a disallowance motion on 13 June 2017 and the practice adopted when a Senator is absent from a vote due to misadventure. Senator Reynolds attached to her letter a BuzzFeed news article, referring to the initial vote taken on 11 May 2017, and an extract from the Senate Hansard of 13 June 2017 containing what Senator Reynolds described as ‘the subsequent and contradictory explanation’ made by Senator Lambie.

‘misadventure’

The Senate has for many years proceeded on the basis that its decisions should reflect the composition of the Senate as elected. This principle underpins the Senate’s practice of allowing divisions to be taken again, by leave, where they have been affected by ‘misadventure’. There is no precise definition of that term, but it suggests that a senator intending to vote was prevented by circumstances from doing so. The practice is based on standing order 104, which provides that a division may be taken again if necessary to ensure that a decision based on confusion or error does not stand.

The accepted practice is that a senator affected by misadventure seeks leave of the Senate to explain the circumstances of their missing the vote. For example, the second reading vote on the Passenger Movement Charge Amendment Bill 2016, lost on 23 November 2016, was put again by leave the following day, after the senators involved explained their earlier absence. The Senate has generally accepted such explanations and given leave for the vote to be held again; however, leave may be refused by any senator.

On 13 June 2017, Senator Lambie provided an explanation for missing a vote on the previous sitting day, 11 May. Leave was refused to have the question put again, however, apparently on the basis of conflicting reports of the senator’s intentions and the delay in her making the explanation. After leave was refused, the proponent of the motion successfully suspended standing orders and the Senate ordered that the vote be taken again. [The division revealed that a number of senators had changed their positions in the intervening time: what had been an equally divided vote in May succeeded 40 Ayes to 30 Noes in June.]

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Discussion

As noted above, the practice in cases of misadventure is based on standing orders intended to ensure that decisions made in cases of confusion or error do not stand.

Following the practice, by making an explanation, does not guarantee that a vote will be taken again; any senator may refuse leave. If leave is refused, the original vote stands, unless authority to revisit the matter is found elsewhere. For instance, the standing orders provide a mechanism for the rescission of Senate votes after notice - sometimes requiring an extended period of 7 days’ notice - and requiring an absolute majority: standing order 87. The Senate may also rescind or reverse earlier decisions with leave, or pursuant to a suspension of standing orders. In effect this is what has happened in this case: leave to correct the effects of a claimed misadventure was refused, but a majority of the Senate agreed to suspend standing orders to require the question to be put again.

It may reasonably be expected that claims of misadventure should be raised promptly after the vote in which they occurred, although what is reasonable will no doubt vary with circumstances. There are procedural and statutory constraints on revisiting certain votes on legislative matters, in any case. For instance a bill passed by the Senate and returned to the House cannot be recalled, and a vote on a disallowance motion may not be revisited after the statutory period for disallowance.

APPENDIX 3

Matter referred by then President Parry- Mode of dress and a possible ‘time out’ rule

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APPENDIX 4

Matters referred by the Senate -

Parliamentary Code for respecting cultural diversity and proposal to amend standing order 193—Rules of debate

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