Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Standing Orders - Senate Standing Committee - Reports of the Fifty-ninth Session - Second


Download PDF Download PDF

The Parliament of the Commonwealth of Australia

SENATE STANDING ORDERS COMMITTEE

Second Report for 59th Session, 1978

May 1978

Brought up and ordered to be printed 3 May 1978

Parliamentary Paper No. 20/1978

' i I

Parliamentary Paper No. 20/1978

The Parliament of the Commonwealth of Australia

SENATE STANDING ORDERS COMMITTEE

Second Report for 59th Session, 1978

May 1978

The Commonwealth Government Printer Canberra 1978

Printed by Authority by the Commonwealth Government Printer

STANDING ORDERS COMMITTEE

Members-The President (Senator the Honourable Condor L. Laucke) The Chairman of Committees (Senator the Honourable T. C. Drake-Brockman, D.F.C.)

Senator W. W. C. Brown Senator F. M. Chaney Senator the Honourable Sir Magnus Cormack, K.B.E. Senator the Honourable Sir Robert Cotton, K.C.M.G. Senator R. E. McAuliffe Senator the Honourable Douglas McClelland Senator Justin O'Byrne Senator the Honourable J. J. -Webster

" Senator the Right Honourable R. G. Withers Senator the Honourable K. S. Wriedt

24663/78-2 Jll

CONTENTS

Item 1 Estimates Committees: staffing arrangements . Item 2 Government consideration of Senate Committee Reports

Paragraph 1

5

Item 3 Standing Order 66A-precedence of motions for the disallowance of certain instruments 8

13

24

Item 4 Standing Committee consideration of Bills Item 5 Other matters .

v

STANDING ORDERS COMMITTEE SECOND REPORT FOR 59TH SESSION 1978

The Standing Orders Committee makes the following report to the Senate.

ITEM 1. Estimates Committees: staffing arrangements.

1. During the debate in Committee of the Whole, on 16 March 1978, on the Standing Orders Committee's First Report for 1978, a consensus view was expressed that, for the Estimates Committees' consideration of the Supplementary Estimates in April­ May 1978, research assistance should be provided to the Committees by the trial attachment of some of the existing staff in the Committee Secretariat. 2. For the consideration of the Supplementary Estimates April-May 1978, adminis­

trative arrangements have been made for the attachment to each Estimates Committee of one Research Officer from the Committee Secretariat. The staffs of each of the five Committees will consequently comprise a Secretary, a Research Officer and, in addition, the customary administrative assi stance provided by officers on the Senate

procedural staff. 3. It is considered that the nature of the research work to be carried out by the research officers should be under the direction of the respective Committees and their Chairmen. 4. Following the experience gained in this trial attachment of research officers to the Estimates Committees for consideration of the Supplementary Estimates 1978,

the Standing Orders Committee will again consider the matter prior to the Budget Session 1978.

ITEM 2. Government consideration of Senate Committee Reports.

5. In March I 973 the Senate agreed, without division, to the following resolution: That-(1) The Senate declares its opinion that, followin g the presentation of a Report fr om a Standing Committee or Select Committee of the Senate which recominends action

by the Government, the Government should, within the ensuing three months, table a paper informing the Senate of its observations and intentions with respect to such recommendations. (2) The Senate resolves that the President communicate this Resolution to the Govern­

ment with a request that the foregoing procedure apply, fr om the date of the passing of this Resolution, to Reports already presented during the present Session and , in respect of future Reports, from the date of presentation of a Report. 6. Unfortunately, little direct action resulted from that resolution. There has been only one Government response in the way suggested and, although the opinion expressed in 1973 is taken to represent the continuing attitude of the Senate-until such time as a contrary opinion is expressed-the Committee feels that the aim sought might be more likely to be achieved if the motion were to be moved in a different form.

7. Committees appreciate knowing the fate of their reports and recommendations and a response by the Government is stimulating to committee work. It is recommended, therefore, that the Senate adopt the following revised resolution : Following the presentation of a Report from a Standing Committee or Select Committee

of the Senate which recommends action by the Go vernment, the President shall forward

to the Leader of the Government in the Senate a copy ' of such Report requesting that the Government, within the ensuing three months and not later than the first sitting day after three months, table a Paper informing the Senate of its observations and intentions with respect to the recommendations made in the Report. The President shall report to the Senate those cases in which there has been no response from the Govern­ ment pursuant to this resolution.

ITEM 3. Standing Order 66A-precedence of motions for the disallowance of certain instruments. 8. Standing Order 66A provides as follows: 66A. The following business shall be placed on the Notice Paper as 'Business of the Senate' and shall take precedence of Government and General Business for the day on which it is set down for consideration, viz. : (a) A Motion for leave of absence to a Senator; (b) A Motion touching the qualification of a Senator ; (c) A Motion for the disallowance of a Regulation or Ordinance or the disapproval

of an Award made under the authority of any Act which provides for the Award being subject to disapproval by either House of the Parliament; (d) An Order of the Day for the presentation of a Report from a Select Committee.

9. In answer to a question in the Senate by Senator Cavanagh on 22 February 1978, the President stated that on a strict reading of paragraph (c) of the Standing Order it does not apply to declarations contained in Proclamations by the Governor-General under the Aboriginal Land Rights (Northern Territory) Act 1976, which, by virtue of section 42 of that Act, are subject to disapproval by the Senate. Motions for the disapproval of declarations contained in such proclamations would not, therefore, be given precedence as Business of the Senate under the Standing Order. The President undertook- to refer the matter to the Standing Orders Committee.

10. It appears that there are a number of other instruments made under Acts of the Parliament which are subject to disallowance or disapproval by either House of the Parliament, or which may be declared void and of no effect by either House, but which do not fall within the ambit of the Standing Order. Such instruments include: (i) By-laws under the Postal Services Act, the Telecommunications Act, and a number

of other Acts. (ii) Orders and proclamations under the Broadcasting and Television Act, the Acts Interpretation Act, and a number of other Acts. (iii) Determinations under the Public Service Arbitration Act, the Remuneration

Tribunals Act, and the Health Insurance Act. (iv) Notices of acquisition of land under the Lands Acquisition Act. (v) In struments modifying or varying the plan of lay-out of Canberra and environs under the Seat of Government (Administration) Act.

11. When Standing Order 66A was adopted in 1922, paragraph (c) referred only to regulations and ordinances. In 1934 it was amended to refer to awards made under Acts of Parliament. The reports of the Standing Orders Committee and the debate in the Senate at the time of adoption of the Standing Order and its amendment do not give any guidance on the intention of paragraph (c) of the Standing Order. It would appear, however, that the Standing Order was intended at the time to apply to all instruments then subject to disallowance or disapproval by the Senate. The amendment of 1934 would seem to have intended to bring the Standing Order up to date in terms of instruments then subject to disallowance or disapproval. Whatever the validity of

2

this presumption, there would seem to be no reason for giving precedence to motions for disallowance or disapproval of some instruments under the Standing Order, while denying precedence to motions for disallowance or disapproval of other instruments.

12. It is therefore recommended that paragraph (c) of the Standing Order be amended so as to read as follows: (c) A motion to disallow, disapprove, or declare void and of no effect any instrument made under the authority of any Act which provides for the instrument to be subject

to disallowance or disapproval by either House of the Parliament, or subject to a resolution of either House of the Parliament declaring the instrument to be void and of no effect. For the purpose of this Standing Order, 'instrument' includes regulation, ordinance or part thereof, rule, by-law, order, declaration, determination,

notice, and modification or variation of plan of lay-out of the city of Canberra and its environs.

ITEM 4. Standing Committee consideration of Bills.

13. The Senate's Legislative and General Purpose Standing Committee system began in 1970. The choice of name was deliberate, emphasis being placed on the legislative character of the committees. It was recognised, however, that in the beginning most committee work would be of an investigatory character, with the trend to the reference

of Bills to committees developing more slowly. The eight years of operation of the committees have confirmed the early judgment.

14. As at 1978 the Senate's standing committee system is firmly established. Most references to the committees have been to inquire into and report upon matters of national concern (drugs, health, education, etc.). Since the establishment of the standing committee system in 1970, only six Bills have been referred to standing committees, including the Family Law Bill 1974, National Compensation Bill 1974

and Crimes (Foreign Incursions and Recruitment) Bill 1977.

15. It has been demonstrated in overseas legislatures that standing or select committee examination of Bills often brings about an improvement in the quality of legislation­ and this has been confirmed by the Senate's own limited experience. The present procedure of referring selected Bills to the Legislative and General Purpose Standing

Committees, with an opportunity being provided, by the calling of witnesses, for members of the public and representatives of organisations to participate in decision making has, in the Standing Orders Committee's view, operated most successfully. Under this practice, a Legislative and General Purpose Standing Committee makes a report on a Bill, which is then followed by the usual proceedings in Committee of the Whole, adoption of report, and third reading.

16. As part of its continuing review of Senate procedure, however, the Standing Orders Committee decided to examine the possibility of greater use of committees in the consideration of legislation. The Committee noted a proposal by the Joint Committee on the Parliamentary Committee System (Parliamentary Paper No. 128

of 1976) that legislation committees be established to deal with the Committee of the Whole stage of Bills-their purpose, in effect, being to substitute standing com­ mittee consideration of a Bill for Committee of the Whole proceedings.

17. As envisaged by the Joint Committee on the Parliamentary Committee System, legislation committees would consider a Bill clause by clause, as in a Committee of the Whole; there would be no taking of evidence; and the number of Bills to be referred to legislation committees for this type of examination would, in the beginning at any rate, be small.

3

18. The procedure advocated by the Joint Committee on the Parliamentary Com­ mittee System could, with some changes, be incorporated within the Senate's current Legislative and General Purpose Standing Committee system and it is suggested .that, subject to such changes, the new procedure be adopted on a trial basis.

19. It is to be noted that, in accordance with the established procedure in Legislative and General Purpose Standing Committees, the Minister in charge of a Bill would not be a member of the committee. The Standing Orders Committee envisages, how­ ever, that, as is the practice in Estimates Committees, the Minister and his officers would attend meetings, when a committee may ask for explanations from the Minister, or officers, regarding the clauses of a Bill. This would not necessarily inhibit the normal committee practice of calling witnesses.

20. Under the proposed new procedure, care must be taken to ensure that the rights of Senators are in no way abridged. Rights of Senators are already protected to a degree by Standing Order 36AA (9), which provides that: A Senator, though not a member of a standing committee, may participate in its public

sessions and question witnesses, unless the committee orders otherwise, but shaH not vote. In addition, the Committee proposes that the right of Senators to move for committal of a Bill, in whole or in part, for consideration in Committee of the Whole, be retained. The Standing Orders Committee proposes a further safeguard, namely, that, on the report from a Legislative and General Purpose Standing Committee being considered in the Senate on motion for the adoption of the report, Senators should be able to move amendments and have the same speaking and other rights as in Committee of the Whole.

21. There may be initial problems in experimenting with the new procedure, such as the time to be allowed for bringing up reports; but, as with the whole development of the standing committee system, gradualism is the keynote until the new procedure settles down, and to that end it is recommended that in the early stages the references of Bills to standing committees, for clause by clause consideration, be moderate in number. ·

22. It is to be noted that, in the proposed Sessional Order which follows, it is provided that certain money Bills be excluded from its operation. Money Bills exempted are Appropriation Bills (considered by the Estimates Committees), Supply Bills (which are concerned with carry-on finance and are not intended to reflect the cash require­ ments of new policies) and Bills imposing taxation (which deal only with the imposition of a tax and do not include assessment matters).

23. Proposed Sessional Order After the second reading of a Bi11 (other than an Appropriation Bi11, Supply BiiJ, or BiiJ imposing taxation), and notwithstanding anything contained in the Standing Orders and without limiting the operation of Standing Orders 36AA and 196A, the foJJowing pro­ cedure shaH apply: (1) A motion (of which notice need not be given) may be moved to refer the Bi11 to a

Legislative and General Purpose Standing Committee: Provided that if no such motion be moved, or if moved and negatived, the Senate shaJJ forthwith resolve itself into a Committee of the Whole for consideration of the Bi11. (2) Upon motion to refer a Bill to a Legislative and General Purpose Standing Committee,

no debate thereon shall be aJJowed for more than one hour, and in speaking thereon no Senator shall exceed ten minutes. If the debate be not sooner concluded, then forthwith upon the expiration of that tiine the President shall put any Questions on any amendment or motion already proposed from the Chair.

4

(3) On reference of a Bill to a Legislative and Gt>neral Purpose Standing Committee, a day shall be fixed for the reporting of a committee's proceedings to the Senate, by which day the final report of the committee shall be brought up, unless further time be moved for and granted: Provided that the Senate may at any time prior to such day receive the final report of the committee. (4) Upon a Bill being committed to a Legislative and General Purpose Standing Com­

mittee pursuant to this Order, it shall be set down on the Notice Paper as an Order of the Day for further consideration following report from the committee. (5) The procedure to be adopted by a Legislative and General Purpose Standing Com­ mittee shal1, as far as possible, be the same as that in Committee of the Whole:

Provided that a committee may ask for explanations from the Minister in charge of a Bill, or officers, relating to the clauses of the Bill. (6) A Legislative and General Purpose Standing Committee shal1 have no power to make amendments to a Bill, but may recommend amendments or requests for

amendments. No amendment or request for amendment may be proposed which would not be in order if proposed in a Committee of the Whole. (7) A report from a Legislative and General Purpose Standing Committee, relating to a Bill, shall be received by the Senate without debate and its consideration deferred

until the reading of the Order of the Day for the further consideration of the Bill, when the procedure, unless otherwise ordered, shall be as follows: (a) Motion may be proposed that the report be adopted; and such motion shal1 be open to debate;

(b) On the motion for the adoption of the report, amendments may be proposed; (c) In these proceedings, the same right of speech and time limits shall apply as in debate in Committee of the Whole; (d) If amendments or requests for amendments be made, additional to any recom­

mended by the report of a standing committee, the Chair shall propose a Question -That the Bill as reported (with or without amendments or requests for amend­ ment), and as further amended, be agreed to; (e) A motion may be, moved, by any Senator, that the Bill as reported from a standing

committee be recommitted, in whole or in part, to the standing committee, or that the Bill as reported be committed, in · whole or in part, to a Committee of the Whole; and (f) When the report from the committee, or from a Committee of the Whole, is

fina11y adopted, the Bill may be proceeded with in the usual way. (8) Unless otherwise ordered, this Sessional Order shall oper<1te for 1978 only.

ITEM 5. Other matters.

24. Other matters currently under consideration by the Standing Orders Committee include: Televising of public hearings of Legislative and General Purpose Standing Committees.

Representation of Independents and Minority Groups on Committees. A continuing review of procedure generally. As progress is made, the Standing Orders Committee will make further reports to the Senate.

May 1978

CoNDOR L. LAUCKE

President of the Senate and Chairman of the Standing Orders Committee