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Tuesday, 20 May 1969

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Senator ANDERSON» (New South Wales) (Minister for Supply) - Like the Leader of the Opposition (Senator Murphy), I want to speak only briefly on the matter. I have in my hand a copy of a legal opinion given on this very issue by the learned Attorney-General, Mr Bowen, Q.C., and by the Solicitor-General for the Commonwealth. This document, which has been circulated to all honourable senators, negatives the arguments stated by the Leader of the Opposition. If this matter is going to develop into a legal argument, at some stage I shall ask a Minister who may follow me in the debate to read the whole of the legal opinion. However, I do not think that will be necessary. I believe that there is some validity in the argument in favour of bringing this matter to a vote, but I would not want to be provoked into reading the legal opinion that has been given in respect of this situation. I hope that what I shall say will be to the point. Here we have a situation in which the Presiding Officer has ruled in accordance with standing order 448. The Leader of the Opposition has dissented from his ruling.

I would have thought that when there is a law, it should be obeyed. If the law of the jungle is to be followed, the Standing Orders will be thrown into the waste paper basket and it will be a case of rule by guess and by God. I suggest that is the situation in which we now find ourselves. We were confronted with it once before, in the course of debate on 22nd August 1968.

At that time an almost identical situation was created. The President acted according to the Standing Orders to which we all give service, or lip service, according to how it is looked at. Senator Murphy moved a motion of dissent and with the weight of numbers he succeeded. I remind honourable senators that the next day the President pointed out that he at no stage accepted the vote of the previous night and maintained the position that until standing order 448 were amended he regarded it as being a valid standing order. So that all honourable senators, and not merely members of my Party, could be well informed of the true position in relation to standing order 448, I sought a legal opinion. I did not seek it in Phillip Street, Sydney, or in the streets of the other capital cities where lawyers have their chambers. I sought it from the Attorney-General who, in his own right, is a Queen's Counsel.


Senator Georges - He is a member of your own Party.


Senator «ANDERSON» - I also sought it from an officer of the Commonwealth who was not a political officer. I sought the opinion of Mr Mason, who was then Solicitor-General. The opinion I obtained has been circulated. I do not want to be provoked into reading it in full. I think it can be accepted that the Attorney-General and the Solicitor-General came down on the side that the Presiding Officer was completely right and that standing order 448 should stand.


Senator Georges - You would not expect them to say otherwise.


Senator «ANDERSON» - Senator Georges who, no doubt, has a legal background, has a perfect right to say that they are not correct.


Senator Wheeldon - Senator Georges has the same legal background as you have.


Senator «ANDERSON» - The only difference is that when I do not know the answer myself, I go to the people who do know. I do not rely on my own judgment. I rely on the judgment of the Attorney-General and the Solicitor-General, and the opinion that they give acts as my bible in relation to these matters. I will quote to honourable senators paragraph 13 of that opinion:

Where Standing Order 448 has not been complied with and leave has not been given the notice required by Standing Order 115 will not have been brought forward in accordance with Standing Orders. In the present case, a majority of Senators (though not an absolute majority) voted in favour of a motion to suspend Standing Orders. It appears to us that this resolution was ineffective, not for lack of votes but for lack of notice.

With the concurrence of honourable senators, I will incorporate in Hansard the complete legal opinion furnished by the Attorney-General and the Solicitor-General.

SUSPENSION OF SENATE STANDING ORDERS: CONSTITUTION SECTIONS 23 AND 50; SENATE STANDING ORDER 448 JOINT OPINION

In the course of the debate in the Senate on 22nd August, 1968, concerning the site for the new Parliament House, the Leader of the Opposition moved, without notice "That so much of the Standing Orders be suspended as would prevent my moving a motion forthwith that order of the day No. 2 relating to the new and permanent house site take precedence this day over other business of the Senate.'

That motion was agreed to by a majority of 24 to 22. The President of the Senate then ruled that, as there was not an absolute majority of the whole number of Senators in favour of the motion, the question was resolved in the negative. The ruling of the President was based on Standing Order 448.

2.   Subsequently, the Leader of the Opposition moved a motion of dissent from the President's ruling and this motion was carried by a majority of 26 to 23. The President thereupon declared that the question of the suspension of Standing Orders was resolved in the affirmative. The motion of dissent from the ruling of the President was based upon the contention that Standing Order 448 was invalid, because it was inconsistent with section 23 of the Constitution.

3.   On 27th August 1968, the President made a statement from the Chair in the course of which, after referring to the proceedings in the Senate on 22nd August 1968, and to the Standing Orders, he said:

Until such time as the Senate itself specifically alters the Standing Orders, I must, as President, continue to rule that they be complied with. In so staling the position us I see it, I ask the Senate to be appreciative of the situation in which I am placed.'

On the motion of the Leader of the Government the Senate took note of the paper and the debate was adjourned.

4.   We have been asked by the Leader of the Government in the Senate to advise as to the validity of Standing Order 448.

5.   Sections 23 and 50 of the Constitution provide as follows:

23.   Questions arising in the Senate shall be determined by a majority of votes, and each Senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

50.   Each House of the Parliament may make rules and orders with respect to -

(i)   The mode in which is powers, privileges, and immunities may be exercised and upheld;

(ii)   The order and conduct of its business and proceedings either separately or jointly with the other House.'

6.   Senate Standing Orders 115, 135 and 448 are as follows: 115. No Senator shall, unless by leave of the Senate, or unless it be otherwise specially provided by the Standing Orders, make any Motion, except in pursuance of Notice openly given at a previous sitting of the Senate, and duly entered on the Notice Paper'. 135. Leave of the Senate must be granted without any dissentient voice'. 448. In cases of urgent necessity, any Standing or Sessional Order or Orders of the Senate may be suspended on Motion, duly made and seconded, without Notice; Provided that such Motion is carried by an absolute majority of the whole number of Senators'.

7.   Section 23 does no more than prescribe the means of ascertaining the answer to questions which arise for determination by the Senate. It does not prescribe the procedure according to which questions are to be brought forward for determination by the Senate. The Constitution itself does not prescribe that procedure, but by section 50 it confers power on the Senate enabling it to do so.

8.   The power conferred on the Senate by section 50 to make rules and orders regulating the order and conduct of its business is a wide power. In the exercise of the power the Senate may prescribe the days on which sittings will be held, the hour for commencement of business, the notice required to be given of certain motions and other procedural matters regulating the manner in which questions shall be brought forward. (See generally Quick and Garran's 'The Annotated Constitution of the Australian Commonwealth' pp. 507-508.) The power is unrestricted, subject only to the qualification that the Senate cannot under section 50 prescribe rules and orders which are inconsistent with other sections of the Constitution such as sections 22 and 23. Section 50 clearly empowers the Senate to select any procedure which in its judgment will result in the bringing forward of questions in an orderly manner.

9.   It is unquestionable that the Senate under section 50 may prescribe any notice, any consent or any other condition to be fulfilled before a question may be brought before the House. By way of illustration, it may prescribe seven days notice for certain motions, and then prescribe conditions on which such notice may be dispensed with as for example, by the consent of thirty-one Senators or the unanimous consent of the House. All such provisions would be valid. They would in no way conflict with section 23, since that section would have no application, unless the question was properly before the House for determination in accordance with the rules and orders.

10.   In the existing Standing Orders of the Senate Standing Order 115 is the principal and governing order relating to the requirement of notice. It requires notice to be given of all motions, and it provides for two circumstances in which that requirement may be dispensed with; first, where leave is forthcoming and, secondly, where the Standing Orders otherwise specially provide.

11.   It is clear that under the first limb of Standing Order 115 one dissentient voice can prevent a motion from being put without notice. (See Standing Order 135.) It is also clear that under the second limb notice cannot be dispensed with, unless the Standing Orders make valid provision for this to be done. Standing Order 448 is the only Standing Order which under the second limb makes provision for dispensing with notice.

12.   The question arises whether Standing Order 448 is valid. In our opinion it is valid. It is a dispensing, indeed the only dispensing, provision absolving from compliance with Standing Order 115. The essential character of Standing Order 448 is that it enables a procedural requirement to be dispensed with and, if complied with, it converts a motion without notice into a regular motion.

13.   Where Standing Order 448 has not been complied with and leave has not been given the notice required by Standing Order 115 will not have been dispensed with and the question is then one which has not been brought forward in accordance with Standing Orders. In the present case, a majority of Senators (though not an absolute majority) voted in favour of a motion to suspend Standing Orders. It appears to us that this resolution was ineffective, not for lack of votes but for lack of notice. The exculpatory provisions of Standing Order 448 not having been fulfilled, the requirement of notice posed by Standing Order 115 still stood and had not been met.

14.   Provisions corresponding with sections 23 and 40 of our Constitution are to be found in sections 36 and 49 of the British North America Act 1867. Notwithstanding section 49, the Standing Orders of the Canadian House of Commons have from early times included a provision which prohibits a motion without notice for suspension of Standing Orders unless the consent of the House to the motion is given. According to Canadian practice consent has been understood as meaning unanimous consent. (See Bourinot's Parliamentary Procedure and Practice 1892 page 263; Standing Orders of the Canadian House of Commons (1962) Nos 41 and 42.). It has never been suggested, so far as we are aware, that this provision of the Canadian Standing Orders is invalid by reason of inconsistency with section 49 of the British North America Act.

15.   A view contrary to that which we have expressed was taken by the then Solicitor-General, Sir George Knowles, in his Opinion dated July 1935, in which he considered the provision in the Standing Orders of the House of Representatives which corresponded with Standing Order 448. With all respect to his Opinion, we must point out that he did not advert to the considerations which have led us to our own conclusion.

16.   In view of the reliance which was placed upon the Opinion of Sir George Knowles during the debate in the Senate we feel obliged to draw attention to the fact that if Standing Order 448 is invalid, then there exists in the Standing Orders no 'special provision' within the terms of Standing Order 115. The result then is that the requirement of notice under Standing Order 115 remains, with one mode of dispensation only, namely, leave of the House.

17.   As the case for invalidity of Standing Order 448 as put by Sir George Knowles and as advanced in the Senate was a case of total invalidity, it is hardly necessary for us to dwell on the possibility that Standing Order 448 is partially invalid, i.e., that the proviso is invalid but the rest valid. However, the suggestion, if made, may be shortly disposed of. It rests on the view that it may be possible to sever the proviso from the remainder of Standing Order 448. Severance is permissible only if the severed parts are independent of each other and the severance can be effected without affecting the operation of the part remaining. In this case neither qualification can be fulfilled. In the first place, the proviso is an integral part of the Standing Order and is in no sense independent of the opening words. Secondly, to strike out the proviso and leave standing the opening words would drastically affect the operation of the opening words and produce a provision having a quite different effect from that manifestly intended by the Senate when it adopted the Standing Order in its existing form.

18.   We may add that we are inclined to agree with the interpretation by Sir George Knowles in his Opinion of the word 'questions' in section 23. However, we do not express any concluded view on this, since it does not appear to be decisive of the present issues and we are conscious that a contrary ruling was given by the Chairman of Committees in the Senate on 17th June 1903 (Senate Hansard page 980). The importance of the role of the Senate as the arbiter of its own internal procedures is too well known to require elaboration by us.

19.   The Leader of the Government in the Senate also asked us to advise on the validity of Standing Orders 134, 281, 332, and 407B, all of which contain provisions requiring a minimum number of votes in connection with the carriage of a motion. Each of these Standing Orders presents its own problem and the problem in each instance differs from the problem presented by Standing Order 448.In order not to delay the giving of advice on Standing Order 448, we have refrained from dealing with them in this Opinion. (Sgd NIGEL BOWEN) (Attorney-General) (Sgd A. F. MASON) (Solicitor-General)

CANBERRA. A.C.T.

10th September 1968.

Notwithstanding all that I have said, we will come to a vote. If the Senate has a will, and the Opposition has a will, again to deny the Standing Orders, honourable senators opposite must accept full responsibility for it.







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