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Procedure-Senate Standing Committee Reports 2013 1st report, February 2013 Electronic petitions and routine of business, dated February 2013


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The Senate

Procedure Committee

Electronic petitions

Routine of business

First report of 2013

February 2013

© Commonwealth of Australia 2013

ISBN 978-1-74229-776-7  

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 John Hogg President of the Senate

Senator Stephen Parry Deputy President and Chair of Committees, Chair

Senator the Hon Stephen Conroy Leader of the Government in the Senate

Senator the Hon Eric Abetz Leader of the Opposition in the Senate

Senator the Hon Jacinta Collins

Senator the Hon John Faulkner

Senator Mitch Fifield

Senator Helen Kroger

Senator Anne McEwen

Senator Rachel Siewert

The Senate PO Box 6100 Parliament House CANBERRA ACT 2600

Telephone: (02) 6277 3350 Facsimile: (02) 6277 3199 E-mail: clerk.sen@aph.gov.au Internet: www.aph.gov.au

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Procedure Committee

First report of 2013

The committee reports to the Senate on the following matters considered at its meeting of 26 February 2013.

Electronic petitions

By letter dated 27 November 2012, the President of the Senate referred to the committee, pursuant to standing order 17(3), several questions relating to the submission of electronic petitions that had been raised with him by Senator McEwen following discussions amongst whips. These questions related to the interpretation of the standing orders on the form of petitions and their application to the preparation and lodgement of electronic petitions, particularly those prepared using online platforms, specifically:

 how an electronic petition is "signed" and whether an email address is required (which some third party organisations refuse to provide);

 how the requirement to have the terms of the petition evident for all petitioners could be met by websites and blogs and how compliance with this requirement could be assessed by senators presenting the petition;

 whether the prohibition on attachments was applicable to linked material and other explanatory, pictorial or descriptive material frequently provided with electronic petitions;

 whether it was problematic if non-residents of Australia were signatories to petitions.

The committee was assisted in its consideration of these matters by a very helpful background paper prepared by the Senate Table Office which is attached to this report as Attachment 1.

In the longer term, the committee believes that the solution to these issues is for the Senate to host e-petitions on its own website so that conformity with the standing orders can be ensured from the outset. It has asked the Clerk to develop proposals for such an outcome, including administrative arrangements and any modification to standing orders that might be required to support e-petitions. The committee will give further consideration to the details of the proposal but supports the concept in principle.

Recommendation 1

In the meantime, the committee recommends that the following interpretation continue to be applied:

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(a) petitions which have been posted on the internet continue to be accepted as in conformity if the senator presenting them certifies that they have been duly posted with the text available to signatories;

(b) the requirement in standing order 70(5) for a petition to be signed be satisfied by the provision of a person's email address;

(c) a petition containing links to extraneous material be regarded as attracting standing order 70(7) and therefore not in conformity;

(d) there be no change to current practice regarding acceptance of non-resident signatories.

Petitions outside these interpretations will continue to be assessed as not in conformity with the standing orders and dealt with in accordance with existing practices (last expounded in the committee's First report of 1997).

Routine of business

By letter dated 26 June 2012, the President of the Senate referred to the committee, pursuant to standing order 17(3), the operation of the routine of business in the Senate with particular reference to:

(a) the consideration of private senators’ bills;

(b) opportunities for considering government documents and committee reports;

(c) the use of a designated time to consider non-controversial government bills;

(d) the use of general business time;

(e) where matters of privilege given precedence should be dealt with;

(f) times of the week before or after which divisions may not be held;

(g) any other matter.

The committee considered proposals made to it by senators representing the major parties and the Australian Greens but did not find support for any major changes to the current arrangements.

The committee notes that temporary orders providing for the consideration of private senators' bills on Thursday mornings (with additional time made up by the Senate sitting on Mondays at 10 am) and modification of the rules applying to questions without notice continue to operate until 30 June 2013. The committee recommends no changes to these arrangements.

The committee will continue to keep these matters under review but makes the following recommendations and observations.

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Consideration of non-controversial legislation

In its First report of 2012, the committee recommended the adoption of a temporary order to provide a definite time for the consideration of non-controversial bills on Thursdays from 12.45 pm. The committee considers that the order has worked satisfactorily and should now be incorporated into standing order 57 as a permanent feature.

Recommendation 2

The committee recommends that standing order 57(1)(d) be amended in the terms set out in Attachment 2.

The committee reminds the Senate of the observations made in its First report of 2012:

By the term “non-controversial”, the committee intends that the business to be dealt with at that time is business that senators agree may be dealt with without divisions. It does not preclude debate and amendment of bills but it involves an understanding that divisions will not be called during the period 12.45 to 2 pm. The committee further indicates that the requirement for the Senate to proceed to non-controversial government business only at 12.45 pm does not preclude other business being conducted after such bills have been dealt with, subject to the usual consultations amongst senators and the necessary motions to rearrange business.

Open-ended adjournment debate on Tuesdays

The open-ended adjournment debate on Tuesdays has proved to be very popular with senators and the committee considered a proposal for more efficient use of the time. Under current arrangements, a senator who has spoken once for 10 minutes may speak again for not more than 10 minutes if no senator who has not already spoken wishes to speak. By leave, a senator may speak for 20 minutes after any senators who wish to speak for 10 minutes only. The committee proposes that an alternative scheme involving three different time limits be tested on a trial basis. Senators who wish to speak for 5 minutes only may speak before those who wish to speak for 10 minutes, while those who wish to speak for up to 20 minutes must wait until all senators who wish to speak for 10 minutes have finished speaking. Under the proposed scheme, it would not be necessary to seek leave to speak for 20 minutes.

Recommendation 3

The committee recommends that the proposed amendment to standing order 54(6) set out in Attachment 3 be adopted on a trial basis until 30 June 2013.

Matters of public interest discussion

Under standing order 57(2) senators may speak for up to 15 minutes without any question before the chair from 12.45 to 2 pm on Wednesdays. If a division is called for during this time, the division is postponed until after 2 pm.

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The committee considered a proposal to alter these arrangements by reducing the speaking time from 15 to 10 minutes, commencing at 1 pm. This would allow 6 speakers to participate, one more than at present. The committee notes that a longer speaking opportunity remains available under both the current and proposed speaking arrangements for the open-ended adjournment debate on Tuesdays.

The committee reached no conclusions on this matter but leaves it for the Senate as a whole to consider whether adoption of a proposed amendment to standing order 57(2), set out at Attachment 4, should be adopted on a trial basis or permanently.

Presentation and consideration of documents

The committee noted that there are numerous arrangements in place for the presentation and consideration of committee reports and other documents. The complexity of these arrangements leaves many senators confused about when they may speak on reports and documents, for how long and whether leave is required. The chart at Attachment 5, taken from the departmental publication, Brief Guide to Senate Procedure No. 3 - Opportunities for debating documents and reports, illustrates this complexity.

While the committee is concerned that the rights of senators to speak to documents and committee reports not be diminished, it considers that there would be some merit in having more straightforward arrangements. It has therefore asked the Clerk to develop for its further consideration proposals to simplify consideration of documents and committee reports. The committee has indicated the following parameters for the proposals:

 a reduction in speaking times from 10 to 5 minutes on some classes of documents, such as government responses to committee reports, Auditor-General's reports and ad hoc documents such as responses to resolutions of the Senate, may be appropriate;

 there should be no reduction in speaking times on committee reports;

 the option of seeking leave to speak to a document on its presentation is to remain but an arrangement whereby documents and reports are automatically listed on the Notice Paper for later consideration may be appropriate.

The committee will consider this matter further.

Questions without notice

The committee discussed the current temporary rules for questions without notice and, while noting dissatisfaction with aspects of them, agreed to consider the matter further before recommending any changes to the Senate.

(Stephen Parry) Chair

ATTACHMENT 1

Electronic Petitions

At the request of Senator McEwen, the President has referred to the committee a number of matters relating to electronic petitions.

Background

The Senate began accepting electronic petitions from the mid-1990s1 under existing standing orders 69, 70 and 71 which were interpreted as encompassing electronic petitions. Those that fail to meet the requirements set out in the standing orders are treated as non-conforming petitions in the same manner as any non-conforming paper document.

As the number of electronic petitions received by senators is increasing, concerns have been raised about the terms of the standing orders in relation to the lodgement of petitions, particularly petitions that are prepared using online platforms.

Application of standing orders

Standing orders 69 and 71, relating to the presentation and content of petitions, are broadly applicable to electronic petitions and therefore do not require any further consideration.

Standing order 70 relates to the form of petitions and provides as follows:

70 Form of petitions

(1) A petition shall be fairly written, typed, or printed without interlineation or erasure.

(2) A petition shall contain a request for action by the Senate or the Parliament.

(3) A petition shall be in the English language, or be accompanied by a translation, certified by the senator who presents it to be correct.

(4) Every signature shall be written on a page bearing the petition, and shall not be pasted upon or otherwise transferred to it.

(5) A petition shall be signed by the petitioners with their names, but may be signed by a person for another in case of incapacity by sickness. A person not able to write may make a mark in the presence of a witness, who shall sign as such.

1 Records indicate that the first electronic petitions were presented in the Senate in 1997.

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(6) Petitions of corporations may be made under their common seal.

(7) No letters, affidavits, or other documents shall be attached to a petition.

The requirements of standing orders 70(1), (2) and (3) are generally met by electronic petitions and 70(6) relating to corporations’ common seals is not relevant in this discussion. However, the provisions of standing orders 70(4), 70(5) and 70(7) are being challenged in this age of rapidly developing communication systems.

Signatures

Current practice establishes that the Senate accepts a print-out of a petition that has been posted on an internet page and that people have signed by submitting their names and email addresses. The senator presenting the petition ‘certifies’ that it has been

duly posted with the text available to the signatories, thus meeting the objectives of standing order 70(4) to assure the Senate that all signatories know exactly what they are signing2. But when current online systems (websites, email and blogs) are used to collect signatures, questions arise:

 how is this requirement to be met and regulated?

 should petitions prepared on all such platforms be accepted, or is one platform preferred?

Standing Order 70(5) requires that petitions be ‘signed’. For electronic petitions, an email address and name are regarded as a signature. However, the majority of electronic petitions received are prepared using external web-platforms such as Get-up and Community Run. A common issue arising from these petitions is the reluctance on the part of the organisations to release the email addresses, presumably on privacy grounds. When this information is not made available, the document is assessed as not conforming with the standing orders and is presented as a non-conforming petition or petitioning document by leave. Consequently, the number of non-conforming petitions that are being tabled is increasing.

What types of electronic petition are assessed as conforming with the standing orders?

 The use of blogs to collect signatures has been successful in meeting the Senate’s requirements. The blog entry functions as the text of the petition and the comments as the signatures.

 The use of emails, where individuals sign a petition by sending an email containing the petitioning text to a central organising body, also results in a petition that conforms with standing orders, as the printed emails are compiled as the petition document.3

2 Standing order 70(4) requires that the terms of the petition are ‘written on a page bearing the signatures, and shall not be pasted upon or otherwise transferred to it’.

3 A petition of this kind, consisting of 100 emails, was presented on 9 May 2012.

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 Alternatively, a single petitioner may send an email to a senator using the wording of their petition, which is then presented as the document.4

These last two formats succeed as electronic petitions because the email addresses are taken to be the signature for the purpose of standing order 70.

Petitions hosted on external websites

In terms of standing order 70(5) the main problems stem from those petitions that are hosted on an external website, the owners of which refuse to provide the information required by the Senate’s standing orders. The two main possible options for addressing the issue are as follows:

 reinterpreting the current standing order to allow, in assessing electronic petitions, an identifier for signatories other than email addresses;

 alternatively, those operating the external platforms can be required to find a way to comply with the standing orders.

Attachments

Standing order 70(7) states that ‘no letters, affidavits, or other documents shall be attached to a petition’. There is a question whether this should be applied to explanatory, descriptive, pictorial or other material frequently provided with, and often inextricable from, electronic petitions (including hyperlinks to other extraneous or external information).

Non-resident signatories

Current Senate practice, established by President’s ruling, is that there is nothing to prevent foreign nationals, resident outside of Australia, from signing and presenting a paper petition. With electronic petitions available online and therefore easily circulated beyond geographical boundaries, they are likely to attract more non-residents as signatories than a paper document. The question arises whether current practice should continue to apply to electronic petitions (and, if not, how it would be enforceable).

Other jurisdictions

The Queensland Parliament has accepted e-petitions via its website since 2003.5 Explicit provision has been made for electronic petitions in their standing orders.6 To start an e-petition, the sponsorship of an MP or the Clerk must first be sought. Individuals sign the petition using their name, address and email address, and while

4 An email petition in this form was last presented on 12 September 2012. It contained 1 signature. 5 www.parliament.qld.gov.au/en/work-of-assembly/petitions/forms-and-guidelines 6

Legislative Assembly of Queensland, ‘Chapter 21: Petitions’, Standing Rules and Orders, pp. 25-28; Petitions: Forms and Guidelines, www.parliament.qld.gov.au/documents/assembly/procedures/StandingRules&Orders.pdf

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only the name and address of the Principal Petitioner is made public online, once presented the complete document is available from the Table Office.

By hosting petitions on the parliament’s own website, formal conformity is ensured from the outset. Further, unlike current Senate practice, a petition may be circulated via both paper and electronic processes simultaneously in order to reach the widest audience. The ACT Legislative Assembly and Tasmanian Legislative Council also accept e-petitions via a very similar process, including modifications to their relevant standing/sessional orders.7 The Northern Territory Legislative Assembly accepts electronic petitions; however no amendment has been made to include provision for

electronic petitions in its standing orders.

The UK Parliament and the United States Congress also accept e-petitions.8 Both host e-petitions on their websites enabling earlier formal regulation, and greater ability to track and document petitions. Both systems have also incorporated quotas requiring a response from the relevant department/Minister upon reaching a certain number of signatures. The House of Commons’ Select Committee on Procedure considered the Senate’s system in its 2008 Report on the subject, before proposing a number of options to be pursued by that House to transition to e-petitions.9

The Australian House of Representatives (HoR) does not accept electronic petitions. However, the Petitions Committee has previously recommended that ‘the Standing Orders be amended to enable electronic petitions.’10 The HoR also places a number of further restrictions on the petitions process, such as restricting the length of the text of petitions.

Possible changes to standing orders and practices

Currently, the application of standing order 70(4) places the onus of verification on the senator who, when lodging the petition, certifies that the text has been available to all signatories. This works when a senator is involved with the petition or knows the organisation sponsoring the petition. However, if the petition is received directly by the Table Office, it is often difficult to get a senator to sponsor and lodge it, as they cannot certify whether this standing order has been complied with. One possible way to ensure that verification can occur is to amend the standing orders to require that the

organiser of the petition provides contact details. Any questions that may arise in assessing the petition’s conformity with standing orders can be addressed to that person or organisation.

7 ACT Legislative Assembly e-petitions, https://epetitions.act.gov.au/ (relevant standing orders are attachment 1)

8 HM Government: e-petitions: http://epetitions.direct.gov.uk/; http://epetitions.direct.gov.uk/how-it-works.

9 House of Commons, Select Committee on Procedure, First Report, 19 March 2008. http://www.publications.parliament.uk/pa/cm200708/cmselect/cmproced/136/13607.htm#note48

10 House of Representatives Standing Committee on Petitions, The work of the first Petitions Committee: 2008-2010, June 2010.

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(1) What is a ‘signature’?

The difficulty in satisfying standing order 70(5) arises with third party sponsorship of online petitions, particularly when the third party makes decisions as to the information that it will provide on the electronic petition and that information does not include an email address which has been interpreted as the ‘signature’ on an electronic petition. The committee may consider that the right of any organisation to petition Parliament on behalf of others outweighs the need of the Parliament to authenticate the petitioners by requiring a form of identification or ‘signature’. If that view is taken then standing order 70(5) will require amendment. If the standing order is to stand then a clear statement of what constitutes a ‘signature’ to meet the standing order would assist those organisations sponsoring the petitions.

(2) Are hyperlinks attachments (resulting in non-conformity)?

Standing order 70(7) clearly states that documents ‘ …shall not be attached to a petition’ but are hyperlinks embedded in the text of the petition to be regarded as an attachment? Clarification is needed as to how the standing order should be applied to material that is inextricably linked to the petition but is not the text of the petition.

(3) Is there any need to change the interpretation on non-resident signatories?

Finally, given the increased potential for foreign residents to sign electronically hosted submissions should the President’s ruling relating to the foreign nationals and residents living outside Australia stand.

Senate Table Office

February 2013

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ATTACHMENT 2

PROPOSED AMENDMENT TO STANDING ORDER 57(1)(d) Omit standing order 57(1)(d), substitute:

(d) On Thursday:

(i) Petitions

(ii) Notices of motion

(iii) Postponement and rearrangement of business

(iv) Formal motions - discovery of formal business

(v) Consideration of committee reports under standing order 62(4)

(vi) Government business

(vii) At 12.45 pm, non-controversial government business only

(viii) At 2 pm, questions

(ix) Motions to take note of answers

(x) Any proposal to debate a matter of public importance or urgency

(xi) Not later than 4.30 pm, general business

(xii) Not later than 6 pm, consideration of government documents under general business

(xiii) Not later than 7 pm, consideration of committee reports and government responses under standing order 62(1)

(xiv) At 8 pm, adjournment proposed

(xv) At 8.40 pm, adjournment.

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ATTACHMENT 3

PROPOSED AMENDMENT TO STANDING ORDER 54(6) (1) Omit standing order 54(6), substitute:

(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 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.

(2) That this order operate as a temporary order until 30 June 2013.

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ATTACHMENT 4

PROPOSED AMENDMENT OF STANDING ORDER 57(2) Omit standing order 57(2), substitute:

(2) On Wednesday, at 1 pm till 2 pm matters of public interest may be discussed by senators without any question before the chair, provided that a senator shall not speak for more than 10 minutes, and if a division is called for, the division shall be taken at a later hour of the day, not being earlier than 2 pm.

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ATTACHMENT 5

DEBATE ON TABLED REPORTS AND DOCUMENTS—SUMMARY

D OCUMENT

/ REPORT

TABLED BY

...

W HEN TABLED

I S THERE A RIGHT TO SPEAK

?

T IME LIMITS

I F DEBATE IS ADJOURNED

, WHEN WILL

IT COME ON AGAIN

?

Minister (a) on Tuesdays and Wednesdays, as government documents

immediately after Prayers yes—when documents are called on at 6.50pm that

day, a motion to take note may be moved; any documents not reached on Tuesdays may be debated on Wednesdays if any time remains

5 minutes per speaker on each motion; total of 30 minutes not later than 6pm on the following Thursday for up to an hour—depending

on when General Business began; 5 minutes per speaker on each adjourned motion

(b) at other times, as government documents

immediately after Prayers these documents may be debated on Tuesdays or

Wednesdays at 6.50 pm if any time remains after documents tabled on those days are called on; otherwise, a motion may be moved by leave to take note

on Tuesdays or Wednesdays at 6.50 pm - 5 minutes per speaker on each motion; total of 30 minutes; otherwise 10 minutes per speaker; total of 30 minutes for each document and 60 minutes for all consecutive motions on documents

on Thursdays, as above (c) government responses to committee reports

each afternoon but in practice usually on Thursdays

no—unless leave is granted for a motion to be moved 10 minutes per speaker; total of 30 minutes for each document

and 60 minutes for all consecutive motions on documents

not later than 7pm on Thursdays for up to an hour; 10 minutes per speaker on each adjourned motion

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D OCUMENT

/ REPORT

TABLED BY

...

W HEN TABLED

I S THERE A RIGHT TO SPEAK

?

T IME LIMITS

I F DEBATE IS ADJOURNED

, WHEN WILL

IT COME ON AGAIN

?

(d) ministerial statements

each afternoon no—unless leave is granted for a motion to be moved 10 minutes per speaker; total of 30 minutes for each document

and 60 minutes for all consecutive motions on documents

unless special arrangements are made, such items will return for debate only when (and if) they are reached on the list of Government Business

(e) ad hoc at any time no—unless leave is granted

for a motion to be moved 10 minutes per speaker; total of 30 minutes for each document and 60 minutes for all consecutive motions on documents

in practice, only by special arrangement Committees (a) pursuant to order whenever the relevant order of the day is reached on the program

no—unless leave is granted for a motion to take note 10 minutes per speaker; total of 30 minutes for each report and

60 minutes for all consecutive motions on documents

not later than 7pm on the following Thursday, for up to an hour; 10 minutes per speaker on each adjourned motion

(b) Wednesdays and Thursdays Wednesday afternoon;

Thursday morning

yes, a motion to take note may be moved without leave

10 minutes per speaker on each motion; total of 60 minutes not later than 7pm on the following Thursday, for up to an hour; 10 minutes

per speaker on each adjourned motion

(c) at “tabling of documents” each afternoon no—unless leave is granted for a motion to be moved

10 minutes per speaker; total of 30 minutes for each report and 60 minutes for all consecutive motions on documents

not later than 7pm on the following Thursday, for up to an hour; 10 minutes per speaker on each adjourned motion

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D OCUMENT

/ REPORT

TABLED BY

...

W HEN TABLED

I S THERE A RIGHT TO SPEAK

?

T IME LIMITS

I F DEBATE IS ADJOURNED

, WHEN WILL

IT COME ON AGAIN

?

The President each afternoon no—unless leave is granted

for a motion to be moved 10 minutes per speaker; total of 30 minutes for each document and 60 minutes for all consecutive motions on documents

in practice, only by special arrangement except for Auditor-General’s reports which are listed at the end of orders of the day relating to committee reports etc for debate on the following Thursday from not later than 7pm for up to an hour. 10 minutes per speaker per motion.

The Clerk each afternoon only on a motion on notice

to disallow, otherwise by leave

on disallowance motions, 20 minutes per speaker, no total limit; on motions by leave, 10 minutes per speaker; total of 30 minutes for each document and 60 minutes for all consecutive motions on documents

if a disallowance motion is adjourned, debate will resume on the next sitting day in the normal course of business; a motion moved by leave to take note of the document resumes, in practice, only by special arrangement