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Senate Procedural Bulletin

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No. 181


for the sitting period 11 13 May 2004


14 May 2004

delegated legislation


The Senate passed a resolution on 13 May “rescinding” its resolution of 24 March disallowing some provisions in some Corporations Regulations. The effe ct of this resolution under section 49 of the Acts Interpretation Act is to allow the government to make new regulations the same in substance as the disallowed regulations without waiting for the statutory six month period after disallowance. The disallowance resolution is not actually rescinded; the original regulations remain disallowed, but the term “rescission” is used in the resolution because it is used, technically incorrectly, in the Act (see Odgers, pp 358-9 and pp 206-7). For the purpose of the Senate’s procedures, the resolution is not a rescission resolution and therefore does not attract standing order 87, which requires special notice and a special majority for such a resolution.

estimates hearings


With the presentation of the annual appropr iation bills, the estimates process was set in train, the estimates being referred to the legislation committees on 11 May. There will be two weeks of estimates hearings before the Senate meets again.


One suggestion made during all the speculation about the possibility of an early general election was that the government would call the election sufficiently early to avoid the estimates hearings, which invariably result in the disclosure of information which the government would rather not have disclosed. Unless there were a double dissolution under section 57 of the Constitution, however, the calling of an election would not necessarily avoid the estimates hearings; it would be possible for the Senate to proceed with the hearings regardless of the election.


Attached to this Bulletin is a document, prepared for senators, which analyses the constitutional and statutory limitations on the timing of the general election.



Among the bills passed during the period were two bills to put into effect th e government’s budget announcement of additional financial assistance for families. The bills were rushed through the House of Representatives by gag and guillotine, but were passed by the Senate by agreement after debate.


Two bills of great interest to senators, the Trade Practices Amendment (Personal Injuries and Death) Bill (No. 2) 2004, and the Postal Services Legislation Amendment Bill 2003, were the subject of extensive amendment on 11 and 12 May, respectively. As the government disagreed with some of the amendments, the return of the bills is thought likely.


The Australian Federal Police and Other Legislation Amendment Bill 2003, however, was the subject of voluminous amendments moved by the government on 12 May to address matters raised in the inquiry by the Legal and Constitutional Legislation Committee (this was a bill initiated in the Senate).

orders for production of documents


An order for the production of the draft National Drug Research Strategy passed on 8 October 2003 was responded to on 12 May. This is another case in which the document in question belongs to state and territory governments as well as the Commonwealth, the Commonwealth government will not release it without the approval of all state and territory governments, and not all state and territory governments have agreed to release it. On this basis the Commonwealth government refuses to provide it to the Senate (see the matter of the COAG documents, Bulletin No. 178, p. 1 and Bulletin No. 177, p. 3).


The order of 1 April for the production of files relating to ministerial discretions under the Migration Act, which was the subject of a select committee inquiry (see Bulletin No. 180, p. 3), was met with a further refusal to produce the files on 12 May on the grounds of privacy and resource implications of extracting the documents. Further pursuit of the matter was promised in debate.


There was a similar reaction to the tabling on 13 May of further documents, but only documents released under the Freedom of Information Act, in relation to the long-running saga of the ethanol subsidy.

privileges committee reference


The Privileges Committee received a reference, on a case of unauthorised disclosure of a draft committee report, in unusual circumstances on 12 May, after the President had determined on the previous day that a motion to re fer the matter should have precedence. The committee concerned had investigated the unauthorised disclosure under the resolution of the Senate of 20 June 1996, determined that the disclosure had not substantially harmed its proceedings, and therefore decided not to raise the matter in the Senate. Two government members of the committee, however, dissented from this conclusion and raised the matter separately, as they are entitled to do under standing order 81. The President determined that in these circumstances he was not precluded from giving the matter precedence under the criteria he is required to consider, which basically  go to the seriousness of the matter, but he indicated that it was for the Senate to determine whether the reference to the Privileges Committee should be made. The reference was subsequently passed without debate.

procedural changes


The Senate adopted on 11 May the following procedural changes recommended in two reports of the Procedure Committee:


  • the Senate endorsed the committee’ s view that the Senate should not participate by way of a formal meeting of the Senate in any future parliamentary addresses by foreign heads of state, and that if the government persists with this practice such occasions should be held by the House of Representatives with senators invited to attend if they choose to do so


  • the annual Tax Expenditures Statement was referred to the estimates committees for consideration during future estimates hearings


  • government documents tabled on any day of the week are to be carried over for consideration each day until they appear on the list for consideration under General Business on Thursday (standing order 61)


  • the time after which divisions may not occur on Thursdays was brought back from 6pm to 4.30pm (a temporary order for the June sittings)


  • if formality is refused to a notice of motion under standing order 66, a motion to suspend standing orders to bring on the substantive motion will not be entertained unless the mover has the support of four other senators (al so a temporary order for the June sittings).



Among a number of references on significant matters made to committees during the period was one on 11 May relating to the long-disputed matter of the Chief Scientist, who appears to hold a public o ffice but is regarded by the government as a consultant and is also a consultant to private companies in the mining industry. The reference, in effect, asks the Employment, Workplace Relations and Education References Committee to disentangle this matter.


The Employment, Workplace Relations and Education References Committee received on 13 May a comprehensive reference on the matter of schools funding.


The Rural and Regional Affairs and Transport Legislation Committee reported on 13 May recommending the rejection of the proposal by Biosecurity Australia to allow the importation of pig meat.



The Iraq war returned to trouble the proceedings in the shape of the allegations about mistreatment of prisoners. This was the subject of an urgency motion on 11 May, which was passed. A motion was moved by Senator Brown on 13 May for a reference to the Foreign Affairs, Defence and Trade References Committee, but debate was adjourned on the motion. Senator Faulkner indicated that the Opposition recommended the adjournment of the debate because there would soon be an opportunity in the estimates hearings, which he called the best accountability mechanism available anywhere, to question ministers and officers about the matter, and the terms of the proposed reference could be reconsidered following that process.

eureka flag


A motion moved by Senator Marshall was passed on 12 May inviting and authorising the President to fly the Eureka flag at the Senate entrance on 3 December to commemorate the 150 th anniversary of the Eureka Stockade.


Senate Daily Summary


This bulletin provides Senate staff and others with a summary of procedurally significant occurrences in the Senate. The Senate Daily Summary provides more detailed information on Senate proceedings, including progress of legislation, committee reports and other documents tabled and major actions by the Senate. Like this bulletin, Senate Daily Summary may be reached through the Senate home page at u /senate


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