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Tuesday, 24 June 2003
Page: 17295

The SPEAKER (3:24 PM) —I indicate to the House that I seek to incorporate in Hansard a statement in response to a question asked of me by the member for Werriwa yesterday. I have given the member for Werriwa a copy of the statement. It provides more detail than I think would be appropriate for me to read into the Hansard at this stage.

The document read as follows—

Yesterday the Honourable Member for Werriwa drew to my attention a reference to page 305 in the 2nd edition of House of Representatives Practice. The page contained a reference to a 1929 opinion from the Attorney General's Department to the effect that a proposal to prevent a quorum being called for within a half hour of the House having been constituted would be in conflict with section 39 of the Constitution.

This opinion had been referred to in the 1st edition, edited by the then Clerk, Mr Pettifer, as well as in the 2nd edition edited by the then Clerk, Mr Browning. It appears that the reference was dropped in the 3rd edition published in 1997 again edited by the then Clerk, Mr Barlin. As noted in the House yesterday it is not in the current edition.

I hope that Members will understand that the editors of each new edition of House of Representative Practice must make decisions about the retention of earlier references, just as they must make decisions about the addition of new references. This is especially necessary when substantive provisions are altered, as was the case in respect of the quorum requirements—the size of the quorum was reduced from one third to one fifth of the House's membership in 1989.

It appears that the 1929 opinion was provided in response to a request to comment on a number of proposed standing orders, including one which was intended to provide that a quorum call could not be made within ½ hour of the meeting of the House. At that time, the practice of the House appears to have been to limit a quorum call to one every 15 minutes. I understand that no doubt was raised as to the Constitutional validity of decisions made under the `maximum of one quorum call every fifteen minutes' practice.

Members may also wish to consider the difference between the 1929 proposal and the proposition standing on the Notice Paper in the name of the Leader of the House. The 1929 opinion commented on a standing order which would have prevented a Member making the quorum call for a certain period. It is important to note that there is a significant difference between calling for a quorum, and establishing whether or not a quorum is present. In drawing the attention of the Chair to the state of the House, a Member is expressing a belief that a quorum is not present. The Chair then ascertains if it appears that a quorum is present. The fact that, in the past, Members have called for a quorum when one was present, and have been disciplined for doing so, indicates that a Member's opinion is not always correct.

The current notice does not purport to prevent a Member making a quorum call, but rather provides for the way such a call may be dealt with. It deals, not with the way in which a member may call attention to the state of the House, but to the way in which the House will be counted if it is to be counted. The current standing orders provide for a single Member to draw attention to the state of the House. However, it would be open for the standing orders to indicate that the voices of 20 Members, for example, were necessary before the Chair counted the House. In this respect Members may think that such a proposal, or one that enables a single Member to call for a quorum, or the one contained in the notice standing in the name of the Leader of the House, would be open to the House under the authority conferred by section 50 of the Constitution to make rules and orders with respect to the order and conduct of its business and proceedings.

To my mind, the proposal on the Notice Paper has less far-reaching effect than the resolution agreed to by the House to make provision for the House to sit through the former dinner break on Mondays and Tuesdays without a need for divisions and quorums. The resolution concerning quorums called between 6.30 and 8 p.m. provides for the Chair to indicate, when a quorum call is made in that period, that the counting of the House will be delayed until 8 p.m. That resolution passed without comment as to any constitutional implications. The notice of motion proposed by the Leader of the House gives the Chair discretion as to when to conduct the count. The discretion could be exercised, for example, so as to delay the count until when a member addressing the House has finished his or her speech.

I also add that standing order 44 remains unaffected by the motion of which notice has been given by the Leader of the House. That standing order provides that no decision of the House shall be considered to be arrived at by a division in which the tellers' count indicates that a quorum is not present.

Finally, I indicate that if the notice to which the Hon. Member drew attention is called on, it will be for the House itself whether to decide on any amendment to standing order 45 for the remainder of this period of sitting. I do not feel the need to obtain any additional legal opinion in relation to it than I would in relation to the constitutionality of, for example, a Bill on the Notice Paper. It remains for the House to make its own decisions on such matters, and as I indicated in the House, I remain the servant of the House.