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The Parliament o f the Commonwealth of Australia

SENATE STANDING ORDERS COMMITTEE

Fifth Report, 30 March 1987

Sixth Report, 13 May 1987

Sixty-Second Session

Presented and ordered to be printed 30 March and 13 May 1987

Parliamentary Paper No. 169/1987

Parliamentary Paper No. /1987

The Parliament of the Commonwealth of Australia

SENATE STANDING ORDERS COMMITTEE

Fifth Report, 30 March 1987

Sixth Report, 13 May 1987

The Commonwealth Government Printer Canberra 1987

Commonwealth of Australia 1987

ISNB 0 644 06523 0

Printed by Authority by the Commonwealth Government Printer

LIST OF REPORTS

1. Fifth Report for the Sixty-Second Session (pp. 1-5)

Appendix 1 (pp. 6-7).

Appendix 2 (p. 8).

2. Sixth Report for the Sixty-Second Session (pp. 1-3)

Appendix (pp. 4-10).

MEMBERS OF THE STANDING ORDERS COMMITTEE

The President, Senator the Hon. Kerry W.Sibraa, (Chairman)

Senator D.J.Hamer, D.S.C.,Deputy President of the Senate

Senator the Hon. J.N. Button, Leader of the Government in the Senate

Senator the Hon. F.M. Chaney, Leader of the Opposition in the Senate

Senator the Hon. G. J. Evans

Senator B.F. Kilgariff

Senator R.F. Ray

Senator E.A. Robertson

Senator A.E. Vanstone

THE SENATE

STANDING ORDERS COMMITTEE

FIFTH REPORT FOR THE SIXTY-SECOND SESSION

30 March 1987

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STANDING ORDERS COMMITTEE

FIFTH REPORT FOR THE SIXTY-SECOND SESSION

The Standing Orders Committee has considered the following

matters and agreed to report as follows.

Consideration of Government Papers

On 23 October 1986 the Senate referred to the Committee the

Sessional Order relating to the consideration of government

papers. This reference resulted from an amendment to a motion by

Senator Vigor to amend the Sessional Order in relation to

ministerial statements presented with papers tabled by Ministers.

During the Committee's consideration of the Sessional Order,

Senator Vigor submitted to the Committee a number of proposed

changes.

Having considered the operation of the Sessional Order, the

Committee recommends that amendments be made to ensure that

papers not reached each day during the half-hour period provided

by the Sessional Order be automatically made Orders of the Day

for consideration on Thursday at the commencement of General

Business, and remain Orders of the Day for that time until they

are disposed of. Attached as appendix 1 are the necessary

amendments of the Sessional Order and the Committee recommends

that those amendments be adopted.

2 .

Putting of amendments

In the proceedings on the second reading of the Australia Card

Bill on 10 December 1986 the Senate was in the situation of

having only the word "That" left of the motion for the second

reading, the remainder of the words of the motion having been

left out and the Senate having failed to agree to insert other

words, an amendment to the words proposed to be inserted having

been defeated, and the original proposal to insert words having

also been defeated.

This situation has arisen on a number of occasions in the past.

It occurs whenever the majority of the Senate votes to leave out

words from a motion, but cannot agree on substitute words. The

motion which results is known in parliamentary terminology as a

"mutilated motion", and the effect of it is that the Senate makes

no definite decision on the matter before it. On this occasion

the absence of any definite decision on the second reading of the

Bill was avoided by the motion for the second reading being put

again by leave.

So far this difficulty has arisen in the Senate only in relation

to motions, but it may also occur in relation to provisions in

Bills. A successful amendment in Committee of the Whole to leave

out words in a Bill may be followed by a failure to agree on the

words to be inserted, resulting in a mutilated and meaningless

provision in a Bill.

A mutilated motion or provision in a Bill arises because of the

procedure whereby amendments to leave out and insert words are

put in two separate questions, and the rule that the words to be

inserted may not be amended until the question for leaving out

words has been determined.

There would appear to be no good reason for not putting all

amendments in one question: "That the amendment be agreed to",

and the only other rules which would then be required would be

3 .

prohibitions on the moving of an amendment the same in substance

as an amendment already determined and on any amendment that

would simply reverse an amendment already made.

These proposed changes would avoid the potentially embarrassing

situation referred to, and also avoid the inconvenience of

putting and determining amendments in two questions.

The existing rules were inherited from the British Parliament and

date from the seventeenth century. The rationale of the rules is

not clear, but it appears that there may be two reasons for them.

First, they avoid the situation of the Senate wasting time over

determining, by amendment, the words which are to be inserted in

a motion before the question for leaving out words has been

determined. That question, it may be thought, ought to be

determined before the Senate is asked to determine the words to

be inserted, otherwise a majority which does not want to amend

the motion is asked to determine an amendment in which it has no

interest. The argument against this is that the Senate ought to

know what the words to be inserted are before it is asked to

decide whether to leave words out. Theoretically, the way in

which a Senator votes on the latter question could well be

determined by the nature of the words to be inserted. In order

to achieve that gain, it may be preferable to run the risk of

wasting time over the words to be inserted, and in any case such

a waste of time is less irrational and less embarrassing than

being left with the word "That" or some other mutilated motion or

provision in a Bill.

Secondly, the present rules may be thought to minimise the

possibility of an endless series of amendments being moved to

some motion, perhaps for the purpose of obstruction. The answer

to this is that the proposed "same in substance" and

"non-reversal" rules would impose a sufficient restriction, and

that the existing rules may in any case be circumvented by a

little more ingenuity. If Senators aim to obstruct they always

have means of doing so.

4.

The balance of argument, therefore, would appear to lie clearly

with the proposed change.

It should be noted that the British House of Commons abandoned

the old method of putting amendments in 1967. All amendments in

that House, except for two types which are not relevant to our

procedures, are put in the form: "That the amendment be made".

This change was the subject of a report by the Procedure

Committee and was debated, albeit briefly, in the House. The

arguments outlined above were not mentioned in the report or the

debate. The House of Lords had earlier, in 1952, changed their

"ancient usage", apparently without any decision of the House,

and adopted the form: "That this amendment be agreed to".

The Committee therefore recommends that the proposed change in

the method of putting amendments be adopted.

This would involve the deletion of Standing Orders 141, 142, 143,

145 and 149, and their replacement by two Standing Orders. It

would also seem to be rational to delete Standing Order 144,

relating to an amendment to an earlier part of the question. The

amendment which would be required is set out in appendix 2, and

the Committee recommends that it be adopted as a Sessional Order,

as shown in the appendix, for a trial period.

Other procedural changes

The Committee has discussed other proposed changes to the

procedures of the Senate to rationalise and expedite proceedings.

The proposals relate to

(a) the motions required for the introduction of Bills;

(b ) the consideration of Bills in Committee of the Whole; and

5.

(c ) the adjournment of debates.

The Committee makes no recommendations on these matters at this

stage. After further discussions with Senators, the Manager of

Government Business intends to put specific proposals before the

Senate for consideration. '

6.

Appendix 1

Consideration of Government Papers

Proposed Amendments of the Sessional Order

The Order of the Senate of 22 February 1985 relating to the

consideration of papers presented by Ministers is amended:

(a) by leaving out sub-paragraph (2)(d) and inserting the

following sub-paragraph:

"(d) on Thursdays, at the commencement of General

Business, when an Order of the Day is called on

under this Sessional Order Senators who have

previously spoken to that Order of the Day may

speak again for not more than 5 minutes, and

debate under this Sessional Order at that time

shall not exceed 1 hour."; and

(b) by adding after paragraph (2) the following paragraphs:

"(2A) Where a paper is presented but is not called on

under paragraph (1) because of the limitation of time

provided by paragraph 2(b), the consideration of that

paper shall be made an Order of the Day for the next

day on which General Business is considered at the

commencement of General Business, without any question

being put, and where that Order of the Day is called on

at that time, a motion may be moved without notice to

take note of that paper.

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"(2B) Where consideration of a paper is an Order of

the Day in accordance with paragraph (2C), it shall

remain an Order of the Day for each succeeding day on

which General Business is considered at the

commencement of General Business until:

(a) the Order of the Day is called on and no

motion to take note of the paper is moved;

(b) a motion to take note of the paper is

determined; or

(c) the Order of the Day is discharged from the

Notice Paper;

whichever first occurs.".

8.

Appendix 2

Putting of Amendments

Proposed Sessional Order

That the Standing Orders have effect as if Standing Orders 141,

142, 143 , 144 , 145 and 14 9 were deleted and the following

Standing Orders inserted:

"140. In respect of every amendment the President shall put a

question, 'That the amendment be agreed to1.

"141. An amendment to a motion may not be moved if it is the

same in substance as an amendment already determined to the same

motion, or would have the effect only of reversing an amendment

already made."

[Note: these Standing Orders are expressed to apply to

amendments to motions, but by virtue of Standing Order 201 apply

also to amendments moved to Bills in Committee of the Whole.]

THE SENATE

STANDING ORDERS COMMITTEE

SIXTH REPORT FOR THE SIXTY-SECOND SESSION

13 May 1987

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STANDING ORDERS COMMITTEE

SIXTH REPORT OF THE SIXTY-SECOND SESSION

Meetings of the Public Accounts Committee

during sittings of the Senate

In a report presented to the Senate on 6 October 1983 (First

Report of the Sixty-first session) the Committee referred to

the prohibition contained in Senate Standing Orders on

committees meeting during sittings of the Senate and its

application to joint committees of which Senators are members.

Until 1983 it was accepted that the prohibition applied to

joint committees, including the Joint Committee on Public

Accounts, and those committees sought the leave of the Senate

if they wished to meet during sittings of the Senate.

In that year, however, the Public Accounts Committee apparently

came to the conclusion, based on a legal opinion, that a

subsection inserted in 1979 in the statute under which it is

established authorises it to meet during sittings of the

Senate, and began to hold such meetings without the leave of

the Senate. The Standing Orders Committee, in its report,

submitted to the Senate that this conclusion is erroneous. The

Committee recommended that the Public Accounts Committee Act be

amended to put the matter beyond doubt, and that until such

amendment is made the Public Accounts Committee should comply

with the Senate Standing Orders and not meet during sittings

of the Senate without the authorization of the Senate. The

relevant part of the Standing Orders Committee report was

adopted by the Senate on 1 March 1984.

On 1.9 March 1987 the Public Accounts Committee presented a

report to both Houses of the Parliament, asserting its right to

meet during sittings of the Senate, and criticizing the grounds

of the Standing Orders Committee report.

2

Attached to this report as an appendix is a list of the matters

referred to by the Public Accounts Committee report, and an

examination of them.

It should be noted that the question in issue is not whether a

statute overrides an inconsistent provision in the Standing

Orders, but whether the statute and the Standing Orders are

actually inconsistent. That is the question to which the

Standing Orders Committee's previous report was directed.

The Standing Orders Committee considers that this question

ought to be resolved. If the claim of the Public Accounts

Committee is accepted, this will result in the anomalous

situation of one joint committee being in the privileged

position of being able to meet during meetings of the

Senate, while all Senate Committees and other joint

committees do not enjoy that right. It is relevant to note

that the interpretation of the Public Accounts Committee

would also permit that Committee to meet anywhere as well as

at any time during the sittings of the Senate.

The Committee believes that the Senate should commence its

consideration of the matter by asking itself whether it

wishes to maintain the complete prohibition on committee

meetings during the sittings of the Senate. If the Senate's

answer to that question is in the affirmative, there would

seem to be no justification for discriminating between

particular committees of which Senators are members, and the

previous recommendations of the Standing Orders Committee,

which were adopted by the Senate, should be complied with

by the Public Accounts Committee.

If the Senate considers that the prohibition on meetings of

committees during sittings of the Senate should be

abandoned, it is submitted that this should apply equally to

all committees.

The Senate may wish to consider a compromise, which may

overcome any problems involved in the present prohibition.

Committees might be allowed to hold private meetings, but

not public hearings, during sittings of the Senate. The

rationale of this suggestion is that private meetings, being

more flexible than public hearings involving prearranged

attendances by witnesses and others, are perhaps less likely

to prevent Senators from giving due attention to the

requirements of the Senate, while allowing committees to

proceed with some of their w o r k . A resolution along the

following lines would achieve this proposal:

That, notwithstanding anything contained

in the Standing Orders, a committee of

the Senate and a committee of both

Houses of the Parliament may meet in

private session during a sitting of the

Senate.

The omission of the words "in private session" would remove

the prohibition completely.

The Committee re iterates that, whatever decision the Senate

makes, the matter should be resolved and the present

anomalous situation should not continue.

'erry W. Sibraa

Chairman

4.

APPENDIX

PUBLIC ACCOUNTS COMMITTEE - MEETINGS DURING SITTINGS

OF THE SENATE

The Public Accounts Committee has presented a report (Report

264, "Public Accounts Committee and the Senate") which

responds to the First Report for the 61st Session of the

Standing Orders Committee, and asserts, contrary to the

report of the Standing Orders Committee and the resolution

of the Senate of 1 March 1984 adopting that report, that the

Public Accounts Committee has the right, under the Public

Accounts Committee Act 1951, to meet during sittings of the

Senate. The Public Accounts Committee report contains

government legal opinions supporting this view.

The report is based upon a number of misconceptions. The

following are the points made by the Public Accounts

Committee and the opinions, and responses to them.

1. The rule that Senate Standing Orders apply to joint

committees is not really a rule but only a practice

(p 2 of the report).

This claim, which is not elaborated, misconceives the basis

of parliamentary procedures. Practice is one source of

procedural rules, just as common law is one source of law.

That the rule in question is a rule is sufficiently

established by the statement at page 59 2 of House of

Representatives Practice: "A joint committee may not sit

during sittings of the Senate, unless authorized by the

Senate". The reference in that work to a possible

qualification in relation to the Public Accounts Committee

is referred to below. The point established here is that the

prohibition in question is a rule of the Houses.

5 .

2. Senate Standing Order 300, which prohibits

committees from meeting during sittings of the Senate,

applies only to select committees. The report and one of the

opinions (pp 2, 11-12) refer to the fact that Standing Order

300 appears in a chapter of the Standing Orders headed

"Select Committees", and conclude that it therefore applies

only to select committees and not to joint statutory

committees.

This argument is based on an ignorance of parliamentary

terminology. In strict usage a select committee is any

committee other than a committee of the whole. This was made

clear in a ruling of Senator Sir Richard Raker:

"All committees which are not committees of the whole Senate are select committees. They may be standing committees or

committees appointed to inquire into a Bill, but they are selected. A committee of the whole Senate is not selected

because it consists of every Senator. Any committee which is selected out of the Senate is a select committee." (J.R. Odgers, Australian Senate Practice, 5th edition, p 487.)

It follows that a committee of both Houses is a select

committee.

At page 2 of the report the Public Accounts Committee

appears to argue that because a joint statutory committee is

in a different category from other joint committees, a joint

statutory committee is fundamentally different in character.

The categorization and classification of committees by their

mode of appointment provides no basis for any argument that

joint . statutory committees are entirely free of any

constraints which may apply to other joint committees. The

report quotes Australian Senate Practice as placing

statutory committees in a different category, but ignores

the statement at page 520 of of that work : "A joint

committee is, technically, a select committee".

6.

3. A statutory committee is regulated (only) by its

statute. Underlying the claim that the Committee's statute

empowers it to meet while the Senate is sitting is an

argument that the statute is the only authority to which the

Committee is subject. Thus the report states at page 4:

"They [Standing Orders] continue to operate in relation to

the committees over which the Senate has jurisdiction while

the Committee operates under its Act.". Similarly, one of

the opinions at page 12 states that "Such a committee [a

statutory joint committee] is regulated by the terms of the

statute under which it is set up, augmented by any

regulations made under that Act".

These statements are based on a fundamental misconception.

It is not the case that a joint statutory committee is

governed by the statute under which it is established and

any regulations thereunder. Such a committee is governed by

the legislative provisions and any relevant provisions made

by the Houses not inconsistent with the legislation. It is a

constitutional principle of great importance that

parliamentary committees are the servants of the Houses

which appoint them. The report and the opinions are based on

a notion that, once a parliamentary committee is established

by legislation, the legislation is its sole authority.

According to this contention, a statutory committee is an

independent statutory authority not subject to any control

by the Houses except in so far as the legislation explicitly

provides.

It would be extreme ly dangerous for the two Houses to

countenance any such contention. The establishment of a

parliamentary committee by a statute does not make it a

creature completely different from all other parliamentary

committees. It is still a committee of the Houses, not a

statutory authority which happens to have Senators and

Members sitting on it.

7.

The acceptance of the argument underlying the report would

mean that statutory committees would be free to do whatever

they wished, providing that their actions were not

inconsistent with anything in the legislation, regardless of

any parliamentary rules which might be thought to govern

their procedures. Every statutory committee would have to

have a complete code of procedure in its statute, lest it

determine bizarre procedures contrary to all parliamentary

usage. The Houses would be powerless to restrain a statutory

committee which engaged in activities utterly beyong its

charter.

It should also be noted that the report assumes that the

interpretation of the statute is a matter for the Committee

itself to determine, and that the Houses may not interpret

the legislative provisions. This is also contrary to the

basic principle of parliamentary committees being the

subordinates of their Houses.

If the statute is the sole determinant of the Committee's

powers, this may mean that the authority which finally

inteprets those powers is not the Committee, nor the Houses

but, contrary to the situation of other committees, the

courts.

4. The relevant section of the Public Accounts

Committee Act plainly means what the Committee believes that

it means and requires no interpretation.

It is by no means clear that a provision which states that a

committee may meet at such times as the committee determines

plainly means that the committee may meet at any time it

chooses notwithstanding any contrary rule of the Houses.

That is itself an interpretation of the provision. It could

be stated with equal certitude that the plain meaning of the

provision is that the times of meeting of the committee are

to be determined by the methods set out by the provision, as

the Standing Orders Committee suggested. It is not helpful

8 .

to claim that one interpretation of the statute is the plain

meaning while another interpretation is merely an

interpretation.

The treatment of the question at page 6 0 0 of House of

Representatives Practice, to which the Committee refers at

page 5 of the report, indicates that the view taken by the

Committee is merely a possible interpretation of the

statutory provision.

5. The statutory provisions clearly indicate an

intention to give the Public Accounts Committee a special

status. The Standing Orders Committee suggested that it

could not be assumed that in inserting the relevant

provision in the Public Accounts Committee Act the

Parliament had an intention to confer a power on that

committee not conferred on any other committee, particularly

in the absence of any expression of such intention in the

parliamentary debates. The report argues that the provision

by itself, and the absence of such a provision from the

Public Works Committee Act, indicates such an intention (pp

4-5) .

It cannot be assumed that every provision in a statute

indicates careful thought and a deliberate intention.

A highly pertinent example of this has been recently

provided. The Public Accounts Committee Act and the Public

Works Committee Act each contain a provision conferring upon

witnesses before each committee the protection and

privileges of a witness before the High Court (sections 19

and 25, respectively). A similar provision first appeared in

the Public Works Committee Act 1913. It was taken from the

Royal Commissions Act 1902 , apparently without any thought

being given to its appropriateness to a parliamentary

committee (the relevant clause was not debated in either

House). It was then repeated in the Public Works and Public

Accounts Committees Acts in 1951, and still applies to those

committees.

9 .

It is not clear why it was thought necessary to make such a

provision. It could not be for the sake of clarity, since

the privileges and liabilities of a witness in proceedings

in the High Court are not statutorily codified but are a

matter of common law. If the provision is meant to supplant

the privilege which a parliamentary witness has under the

law of parliamentary privilege, this would mean that

witnesses before the committees would have less protection

than those before a parliamentary committee which does not

operate under the provision. Even if one accepts the reading

down of article 9 of the Bill of Rights by Justices Cantor

and Hunt, a parliamentary witness apparently has a greater

protection than this provision would give. In the light of

this history, the Senate on 10 October 1986 struck a similar

provision out of the legislation establishing the joint

committee on the Australian Security Intelligence

Organisation.

If the Public Accounts Committee contends that its statute

is its sole basis and must be read literally, then it must

conclude that its witnesses are inferior in rights to other

parliamentary witnesses.

The belief that no thought at all has been given to the

provision in question is demonstrated by one of the

opinions, which states that the "protection of the

Parliament" is applicable to witnesses before the Public

Accounts Committee (page 12 of the report). If the provision

means anything, it means that witnesses before the committee

do not have the same protection as other parliamentary

witnesses. Fortunately, the provision in question appears to

have been ignored in practice.

It is suggested that, similarly, no thought was given to the

apparent contradiction between sub-section 6A (1) of the

Public Accounts Committee Act and the Standing Orders of the

Senate until the Committee wished to meet during the

10.

sittings of the Senate. This is demonstrated, as the

Standing Orders Committee pointed out (as shown at page 21

of the report), by the fact that until 1983 the Public

Accounts Committee sought the permission of the Senate when

it wished to meet during the sittings of the Senate. The

Committee now states (page 1 of the report) that this was

merely a matter of courtesy. If that were so, it is odd that

the committee should have ceased to be courteous merely

because it received opinions indicating that it was free of

the relevant constraint.

The position in relation to this matter, therefore, is as

follows:

(1) There is no doubt that the prohibition on

meetings during the sittings of the Senate

applies to joint statutory committees.

(2) There is no evidence that sub-section 6A(1) of

the Public Accounts Committee Act was intended

to confer on the Committee a right, not given

to any other Senate or joint committee, to

meet while the Senate is sitting,

(3) It is not clear that the sub-section should be

so interpreted.

As the Standing Orders Committee recommended in its

report,and this recommendation was adopted by the Senate,

the solution to the problem is for the Public Accounts

Committee to continue to adhere to the rule which it

observed until 1983, until the two Houses, by appropriate

amendment of the legislation, determine whether the

Committee is to have the special privilege which it claims.