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Standing Orders - Senate Standing Committee - Reports of the Fifty-ninth Session - Fifth


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The Parliament o f the Commonwealth of Australia

SENATE STANDING ORDERS COMMITTEE

Fifth Report for Fifty-ninth Session 1978-79-80

March 1980

Brought up and ordered to be printed 31 March 1980

Parliamentary Paper N o. 50/1980

Parliamentary Paper No. 50/1980

The Parliament of the Commonwealth of Australia

SENATE STANDING ORDERS COMMITTEE

Fifth Report for Fifty-ninth Session 1978-79-80

March 1980

The Commonwealth Government Printer Canberra 1980

© Commonwealth of Australia 1980

ISBN 0 642 04934 3

Printed by C. J. Thompson, Commonwealth Government Printer, Canberra

CONTENTS

Page

1. Question Time— (i) Giving Notice of Questions . . . . . . . 1

(ii) Supplementary Questions on Deferred Answers . . . 1

(iii) Termination of Question Time . . . . . . 1

2. Quotation of Unparliamentary Language in Debate . . . . 2

3. Presentation of Committee Reports . . . . . . . 2

4. Granting of Leave . . . . . . . . . . 2

5. Estimates Committees (i) Taking of In Camera Evidence . . . . . . 3

(ii) Staff of Estimates Committees . . . . . . . 3

(iii) Appearance of House of Representatives Ministers before Estimates Committees . . . . . . . . . . 3

6. Disorder in Committees other than Committee of the Whole . . 4

7. Television . . . . . . . . . . . 4

8. Display of State Arms or Insignia in the Senate Chamber . . . 4

9. Reflections upon the Judiciary . . . . . . . . 5

10. Standing Order 68: Introduction of New Business after 10.30 p.m. . 5

11. Suspension of Senators . . . . . . . . . 5

12. Other Matters . . . . . . . . . . . 6

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24672/80—2

STANDING ORDERS COMMITTEE FIFTH REPORT FOR THE 59TH SESSIO N 1978-79-80

The Standing Orders Committee has the honour to report to the Senate as follows:

1. Q uestion T ime

2 The Committee has considered three matters relating to the conduct of question time in the Senate.

(i) Giving Notice o f Questions

3 On 29 May 1979 the President undertook to refer to the Committee the matter of notice being given to Ministers of questions to be asked at question time. This undertaking arose from discussion of a question and answer in the Senate that day.

4 The Committee considers that the Standing Orders do not prohibit a Senator from advising a Minister that he proposes to ask a certain type of question. It is a long-established practice for Senators to give Ministers informal advice prior to question time of the subject on which they propose to ask questions, so that Ministers

may obtain information on those subjects. It is considered that this is an acceptable practice, particularly in a chamber where Ministers represent several ministries in addition to their own, and that it leads to a more satisfactory question time.

5 The Committee reiterates, however, the distinction between this practice of giving informal advice of the subject of a question to be asked and the giving of written notice of the precise terms of a question calling for a detailed answer. The latter ought to be done by placing the question on the notice paper, in accordance with

Standing Order 101.

(ii) Supplementary Questions on Deferred Answers

6 On 22 August 1979 the President undertook to submit to the Committee the question of whether Senators ought to be allowed to ask supplementary questions in relation to answers which are given by Ministers after the termination of question time. The Committee has carefully considered this matter and considers that, if

Senators wish to ask further questions in relation to these deferred answers, they should do so either by asking leave to do so, when the answer is given, or by asking their questions in the normal way at question time on a subsequent day.

(iii) Termination o f Question Time

7 It is a long-established practice for question time to be terminated by the Leader of the Government in the Senate asking that further questions be placed on notice. This practice was temporarily suspended between 1967 and 1973, following proceedings in the Senate in which the Senate, in effect, directed that question time proceed

notwithstanding the usual request by the Leader of the Government. Since 1973, however, the practice has been consistently adhered to but its validity has recently

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been questioned in the Senate. The basis of the practice is that it is competent for Ministers to ask that any questions be placed on the notice paper, and that Ministers, in any case, are not bound to answer questions.

8 The Committee does not consider that it ought to recommend any change in this practice.

2. Q uotation of U nparliamentary L anguage in D ebate

9 This matter was referred to the Committee of Privileges on 29 May 1979, following discussion in the Senate upon a ruling of the Acting Deputy-President to the effect that a Senator is not permitted to use words that are unparliamentary by quoting those words from another source. The Privileges Committee reported, in September

1979, that the question was not one of privilege but one of order and that, if the matter were to be further examined, it would be appropriate for such examination to be undertaken by the Standing Orders Committee. Although not considering it a question of privilege, the Privileges Committee did make some observations and cite some authorities suggesting the soundness of the rule.

10 The Committee considers that, as the report of the Privileges Committee strongly suggested, this rule of debate is a fundamentally sound one and to abandon it would allow speeches to be made deliberately circumventing the prohibition on unparliamen­ tary language. The fact that certain language is used outside the Senate with impunity does not mean that such language should be acceptable in the Senate. The Committee therefore considers that no change should be made in the existing practice and that the President should continue to apply the rule with discretion and with a due regard for the right of Senators to refer in debate to matters of public interest.

3. P resentation of C ommittee R eports

11 This matter was referred to the Committee by motion on 11 October 1979 following a discussion which ensued after the presentation of a standing committee report. Senators who spoke to the motion to take note of that report indicated that they were at a disadvantage in participating in the debate in that they had not seen the report. It was pointed out that the practices of the Senate prevented the disclosure

of a committee’s report prior to its presentation to the Senate, and it was suggested that some procedure should be adopted for allowing interested Senators to see committee reports before they are presented to the Senate.

12 The Committee believes that the prohibition upon the publication of a committee report prior to its presentation to the Senate, without the authorisation of the Senate, is a necessary safeguard of the right of the Senate to have first knowledge of the reports of its committees. The Committee further believes that the procedure con­

templated by Standing Orders 316 and 317, that there should be time for consideration of a committee report after its presentation to the Senate, is basically sound. As was indicated during the debate in the Senate, the solution to the problem seen by Honourable Senators is not in making committee reports available before they are tabled but in being able to debate them shortly after their presentation, by agreement

and arrangement.

4. G ranting of Leave

13 An undertaking to refer this matter to the Committee was given by the President following incidents in the Senate on 15 November 1979. On that day an Opposition

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Senator was refused leave to make a statement and, subsequently, various Senators, including Ministers, were refused leave to do things for which leave is normally granted. A suggestion was made that, in order to avoid such incidents, leave could

be sought of the President, instead of the Senate, where leave is necessary.

14 The Committee considers that this proposal would place too great a burden on the President. The Committee regards the long-established practice of the Senate that leave may be granted for Senators to move motions, make statements and to do other things which would not normally be in order, as a sound one. Incidents of the

type described are fortunately rare, and leave is normally granted, to the extent that a large proportion of the Senate’s business is conducted by the granting of leave. The Committee suggests that the practice of seeking leave would be strengthened by Senators who ask for leave seeking prior agreement and stating clearly the purpose for which leave is sought.

5. E stimates C ommittees

(i) Taking of In Camera Evidence

15 The Committee has given a great deal of consideration to the question of whether estimates committees should be empowered to take evidence in camera, without the authorisation of the Senate, when this is considered appropriate.

16 The Committee has agreed to make no recommendation for any change in the present procedures, whereby an estimates committee seeking to take evidence in camera must seek the authorisation of the Senate to do so. The Committee reminds the Senate that the estimates committees, in examining the estimates, are performing

a function formerly carried out in Committee of the Whole, and the Committee of the Whole does not take in camera evidence. It is also worth noting that an estimates committee which considers that in camera evidence ought to be taken on a particular matter may, in accordance with a developing practice, seek the concurrence of the

Senate for the reference of that matter to a legislative and general purpose standing committee.

(ii) Staff of Estimates Committees

17 The Committee has further considered the appropriate staff support for estimates committees, but does not make any firm recommendation on the matter at this stage. The Committee believes that the concept of providing research staff for estimates committees is basically a sound one, although the performance of the committees

depends mainly upon their members. The Committee notes that staff support for the estimates committees has been on a part-time and experimental basis and considers that, in the absence of more permanent staff arrangements, this should continue. The President has taken action to fill some of the positions which have been created

on the establishment of the Senate Department to support estimates committees, and the filling of all these positions will depend upon staff ceilings and future rearrangements of Senate staff.

(iii) Appearance o f House o f Representatives Ministers Before Estimates Committees

18 The suggestion that House of Representatives Ministers appear before the Senate estimates committees during the consideration of the estimates of their own Departments was directed to the President by the Chairmen of the Estimates Committees and referred by the President to this Committee.

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19 It is considered that there are no constitutional or procedural barriers to the appearance of Ministers who are members of the House of Representatives before Senate committees, including estimates committees.

20 There are, however, serious practical difficulties in this proposal, including:

(a) the difficulty of arranging times of meeting to suit House of Representatives Ministers who have commitments in that House;

(b) the difficulty of predicting when particular Departments will be examined by the estimates committees; and

(c) the difficulty of predicting in advance whether questions to be asked during the hearings are such as to require the attention of the Minister concerned.

If questions arise requiring answers from House of Representatives Ministers, it is a simple and convenient practice for written answers to be provided.

21 The proposal also raises larger questions which go to the fundamentals of the bicameral system, for example, whether Ministers should appear before both Houses for the purposes of answering questions and presenting legislation. The Committee considers that the proposal could not be adequately examined without consideration

of these other major questions.

6. D isorder in Committees other than Committee of the W hole

22 The Committee has considered whether there ought to be any change to the present procedures for dealing with disorder in Senate committees. At present Chair­ men of committees who are faced with disorder have no substantive power except the power to report the matter to the Senate. Disorder in Senate committees is fortunately

of rare occurrence and the Committee considers that it should be for the Senate to deal with the matter. The Committee therefore recommends no change to the existing procedures.

7. T elevision

23 The Committee has given considerable attention to the question of the televising of proceedings of the Senate and of Senate committees. The Committee intends to consider this matter further and to seek further information from the Australian Broadcasting Commission and other sources.

8. D isplay of State A rms or I nsignia in the Senate Chamber

24 The President referred this matter to the Committee after twenty-three Senators requested that consideration be given to the display in the Senate Chamber of State Arms, insignia or flags. The Committee has not been able to come to any unanimous view of the matter. It has been pointed out that the Senate Chamber possesses a dignified simplicity and many Senators are opposed to altering its present appearance.

Some Senators consider that a further discreet display of the Commonwealth Arms would be appropriate. Senators who favour the display of State Arms or insignia have stressed that this would need to be done with great discretion to avoid cluttering the Chamber. The Committee makes no recommendation on the matter, but the

Senate will be asked to give its consideration to the subject.

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9. R eflections upon the J udiciary

25 On several occasions in recent debates in the Senate the practice of the Senate under which it is not in order to reflect upon members of the judiciary has been questioned. In particular, it has been pointed out that this practice is not contained in any Standing Order, whereas reflections upon members of either House or of other Parliaments are expressly forbidden by the Standing Orders.

26 The Committee accepts that practice is an authoritative source of procedure, that without practice it would be impossible to conduct the proceedings of the Senate, and that it would be impossible to write all practices into the Standing Orders.

27 The Committee does not recommend any change to the present rule that prohibits personal reflections upon members of the judiciary, and considers that it should be left to the President to apply the rule with discretion and with due regard for the right of Senators to refer in debate to matters of public interest.

10. Standing Order 68: I ntroduction of N ew Business after 10.30 p .m.

28 Standing Order 68 provides that no new business shall be commenced after half past ten o’clock at night. This Standing Order, which has not been changed since the Standing Orders were adopted by the Senate in 1903, and which is a safeguard against the introduction of new business at a time when Senators may be absent, does not

take account of the fact that on days on which the proceedings of the Senate are broadcast the adjournment of the Senate is not moved until 11.00 p.m. It has been the practice to regard the Standing Order as having effect at 11.00 p.m. on broadcast days, since it is known and accepted that on such days the Senate will normally

continue to sit and to transact business until at least 11.00 p.m. The Standing Order is therefore in need of revision, but the Committee considers that, rather than specify a particular time, the Standing Order should refer to the time when the adjournment of the Senate is proposed, as it is now the invariable practice for the Senate to have

Sessional Orders requiring the question for the adjournment to be proposed at a particular time on each sitting day. The Committee therefore recommends the Standing Order be amended to read as follows:

68. No new business shall be commenced after the adjournment of the Senate has been first proposed on any sitting day.

11. Suspension of Senators

29 This matter was referred to the Committee by the President after receipt of a submission from a Senator concerning proceedings in the Senate in relation to the suspension of a Senator. Standing Order 441 provides:

If any Senator be suspended, his suspension on the first occasion shall be for the remainder of that day’s sitting; on the second occasion for one week; and on the third or any subsequent occasion for fourteen days, such suspension occurring within the same session.

30 This Standing Order has remained unchanged since the time when sessions of the Parliament seldom lasted more than a year. Now that sessions are apt to extend for up to three years, it is considered that the Standing Order may operate unfairly.

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There is also a need to clarify the periods of suspension. The Committee therefore recommends that the Standing Order be amended to read as follows: If any Senator be suspended, his suspension on the first occasion shall be for the remainder of that day’s sitting; on the second occasion for seven consecutive days;

and on the third or any subsequent occasion for fourteen consecutive days, such suspensions occurring within the same calendar year.

12. Other M atters

31 The Committee has considered the question of whether it is necessary to continue to require the seconding of motions, and at this stage does not recommend any alteration of existing practices.

32 The Committee has also considered a number of proposals for expediting the proceedings of the Senate. The Committee will further consider these matters following discussion between Ministers and Office Bearers of the Senate on possible

areas of procedural improvement.

March 1980

CONDOR L. LAUCKE President o f the Senate

Chairman o f the Standing Orders Committee