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Standing Orders Committee - Senate - Report - Fourth


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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA 1971-Par/iamentary Paper No. Ill

The Senate

REPORT FROM THE

STANDING ORDERS COMMITTEE

AUGUST 1971

Laid on th e Table by the President and

ordered to be printed 17 August 1971

COMMONWEALTH GOVER MENT PRII"TI:--:G OFfi CE CANBERRA: 1971

349

W . G . MUJ

MEMBERS OF THE COMMITTEE*

The Leader of the Government in the Senate, Senator the Honourable Sir Kenneth Anderson

Senator J. L. Cavanagh

Senator Sir Magnus Cormack, K.B.E.

Senator L. K. Murphy, Q.c., Leader of the Opposition in the Senate

Senator L. D. Wilkinson

Senator R. G. Withers, Government Whip

Senator the Honourable R. C. Wright, Minister for Works

• The President and Chairm an of Committees are ex-offici o members o f the Standing Orders Committee, but both offices were vacant at the last meeting o f the Committee.

Senator Sir Magnus Co rmack was appointed Acting Chairman of the Comm ittee.

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STANDING ORDERS COMMITTEE

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

Item !-Composition of the Committee-Standing Order 33

2. Standing Order 33 provides that the Standing Orders Committee shall consist of the President, the Chairman of Committees and seven Senators. At the present time the seven Senators comprise four Government and three Opposition Senators. Having in mind the present composition of the Senate-26 Government, 26

Opposition, 5 Democratic Labor Party and 3 Independents-the Committee considers that there should be opportunity for further representation on the Committee. Accordingly, the following amendment of the Standing Orders is recommended:

Standing Order 33-Leave out 'seven Senators', insert 'eight Senators'.

Item 2-Publications Committee-Standing Order 36 3. In June 1970 the Senate amended Standing Order 36 to extend the operations of the Printing Committee by re-styling it the 'Publications Committee' and providing that the Joint Publications Committee shall have power to inquire into

and report on the printing, publication and distribution of Parliamentary and Government Publications and on such matters as are referred to it by the Treasurer. The administration of the Australian Government Publishing Service has now been transferred from the Treasury to the Department of the Environ­

ment, Aborigines and the Arts and it follows that references of matters for inquiry to the Joint Publications Committee should appropriately be made by the Minister responsible for Government printing and publishing. To meet this and any like circumstance, it is recommended that Standing Order 36 be

amended by leaving out 'Treasurer' and inserting 'relevant Minister'.

Item 3-Regulations and Ordinances-Standing Orders 36A and 66A 4. Pursuant to the Acts Interpretation Act and relevant legislation, regulations and ordinances are required to be tabled within 15 sitting days after making; 15 sitting days are then allowed for giving notice of motion for disallowance ;

and a further 15 sitting days are allowed within which the motion for dis­ allowance shall be disposed of or the regulation shall be deemed to have been disallowed.

5. The Committee considered a suggestion that the periods of time allowed for giving notice and the time remaining for considering notices of motion for disallowance of regulations and ordinances should be shown on the Notice

Paper or otherwise made known. Delegated legislation is a matter of much importance and the Committee agrees that such information should be readily available.

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6. The Committee recommends: (1) That the Senate office prepare a weekly list showing the number of sitting days remaining for the giving of notices of motion for the dis­ allowance of regulations and ordinances; and

(2) That, when a notice of disallowance has been given, the Notice Paper indicate the number qf sitting days remaining within which the motion must be disposed of before the regulation or ordinance will be deemed to have been disallowed.

Item 4-Motions for adjournment to debate matter of urgency--Standing Order 64 7. Phraseology-The Committee considered a viewpoint expressed recently in the Senate that the phraseology of Standing Order 64 was unsatisfactory, in that the motion 'That the Senate at its rising adjourn to any day or hour other than that fixed for the next ordinary meeting of the Senate, for the purpose of debating some matter of urgency' could be interpreted as meaning that, if carried, the Senate should at the specified time at the next sitting then proceed to debate the matter of urgency. While the Standing Order has never been so interpreted, the Committee believes that the meaning of the Standing Order could be better expressed. Accordingly, the following amendment to Standing Order 64 is recommended :

Amendment (1 )-Leave out 'A motion without Notice, that the Senate at its rising adjourn to any day or hour other than that fixed for the next ordinary meeting of the Senate, for the purpose of debating so me matter of urgency,', insert 'A matter of urgency may be debated on a motion without Notice, that the Senate at its rising adjourn to any day or hour other than that fixed for the next ordinary . meeting of the Senate. Such a motion'.

(Consequential amendment-Leave out 'such Motion' in line 6 of Standing Order.)

8. Vote on subject matter-Consideration was given to a proposal that the Senate should vote on the subject matter of the urgency motion, rather than the question of rising until an unusual time, and to that end the words in the Standing Order 'that the Senate at its rising adjourn to any day or hour other than that fixed for the next ordinary meeting of the Senate' be left out. The effect, however, would be to accord precedence to a substantive motion of General Business, which would be contrary to the purpose of the Standing Order. Furthermore, there are established procedures for proposing substantive motions to the Senate. It was decided, therefore, not to make any alteration to the present practice.

9. Notice-As Standing Order 64 at presen t stands, there is no limit to bow far in advance notice of an urgency motion may be given. The Committee con­ siders that there should be a limitation in order to have real regard to the urgent nature of a motion. Accordingly, the following further amendment is recommended:

Amendment (2)-Inse rt the wo rds in it alics: 'Th e Sen ator so moving must make in writing, and hand in to the President before the time fixed for the meetin g of th e Senate, and not m ore than 24 hours before that time, a statement of the matter of urgency. '

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10. Time limits-It is considered that the time limits for speeches, and for the whole discussion, could be reduced without prejudicing the effectiveness of urgency motions. The recommended amendments are:

Amendment (3)-Leave out ':the mover and the Minister first speaking shall not exceed thirty minutes each', insert 'the mover and the Senator next speaking shall not exceed 20 minutes each.' (And see comment in paragraph 11.)

Amendment (4)-Leave out 'and any other Senator or the mover in reply shall not exceed fifteen minutes,', insert 'and any other Senator or the mover in reply shall not exceed 10 minutes,'.

Amendment (5)-Leave out 'Provided th at the whole discu ss ion on the subject shall not exceed three hours', insert 'Provided that the whole discussion on the subject shall not exceed two hours'.

11. Ministerial responsibility-It will be noted th at in existing Standing Order 64 it is provided that 'the mover and the Minister first speaking shall not exceed thirty minutes each'. In proposed Amendment ( 3) above, it is recommended that 'the tpover and the Senator next speaking shall not exceed 20 minutes each'.

The proposal to leave out reference to the 'Minister' is aimed at meeting a cir­ cumstance where, in the nature of the subject matter of a particular urgency motion, it might on occasion be appropriate that a Senator other than a Minister should be allowed to follow the mover and have the advantage of the extra time allowed. This change does not imply any abdication of ministerial responsi­

bility. It is well established that the subject of a motion of urgency must be on some matter falling within ministerial responsibility and this basic rule remains. The position which would follow from the proposed amendment is that a Minister would retain the right to have the call after the mover, if he chose, and

speak for the same time as the mover, namely 20 minutes. If, however, by arrangement a Senator other than a Minister were allowed first call after the mover and spoke for 20 minutes in reply to the mover, then a Minister would only speak for the same time as other Senators, namely 10 minutes.

12. Revised Standing Order-If the foregoing proposed amendments are agreed to, the Standing Order will read: '64.-( 1.) A matter of urgency may be debated on a moti on without Notice, that the Senate at its rising adjourn to any day or hour other than that fixed for the

next ordinary meeting of the Senate. Such a motion can only be made after Petitions have been presented and Notices of Questions and Motions given , and before the Business of the Day is proceeded with , and can be made notwithstanding there be on the Paper a Motion for adjournment to a time other than that of the next ordinary

meeting. The Senator so moving must make in writ ing. and hand in to the President before the time fixed for the meeting of the Sen ate, and not more than 24 hours before that time, a statement of the matter of urgency. Such motion must be su pported by four Senators rising in their pl aces as indicating their approval thereof.

Not more than one such Motion can be made during a sitting of the Senate. (:2.) In speaking to such Motion , the move r and th e Senator next speaking shall not exceed 20 minutes each, and any other other Sen ator or the mover in reply shall not exceed 10 minutes, and every Senator shall confine himself to the one subject

in respect to which the Motion has been made. Provided that the whole di scussion on the subject shall not exceed two hours.'.

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Item 5-Manner of asking Questions on Notice-Standing Orders 98 to 103 13. Under present practice, when Questions are being broadcast or are to be re-broadcast, Senators read their Questions on Notice in full, unless by agreement they are incorporated in Hansard. On the other hand, when the proceedings are not being broadcast, a Senator wishing to read a Question on Notice must in accordance with the present practice ask leave of the Senate. As leave of the Senate is never refused, it is considered time-wasting to continue the practice of

asking for leave and it is recommended that a Senator be allowed to read a Question on Notice if he so wishes.

14. However, Senators should continue to indicate to the Clerk at the Table those Questions on Notice which they specifically wish to have answered orally rather than be incorporated in Hansard. The strong recommendation is made that, as far as possible, Questions on Notice and replies be incorporated in Hansard and

that an oral Question and reply be requested only when it is considered specially desirable.

Item 6-Procedure in Committee of the Whole on Bills which the Senate may not amend-Standing Order 253 15. Standing Order 253 provides that, in the proceedings on Bills which the Senate may not amend, the Chairman shall (unless otherwise ordered) call on

each clause or item, and ask if any Senator has any request to move thereon . If there be no requests, the Chairman declares the clause or item passed. 16. It will be noted that each clause or item is not put definitely to the vote. If a question were put, for example-That the vote be agreed to-and th at question were resolved in the negative, the Senate would have amended a Bill which it cannot under the Constitution amend.

17. While recognising the constitutional considerations implicit in the provisions of Standing Order 253, the Committee considers that the procedure could be improved, particularly having in mind the situation which arises when th e closure is applied. It is recognised that any alteration to the present procedure will require an amendment of the Standing Orders.

18. After careful consideration, the Committee recommends that that part of Standing Order 253 which reads : The proceedings in Committee shall be as follows:-The Chairman shall (unless otherwise ordered) call on each clause or item, and

ask if any Senator has any request to move thereon. If no motion for a request is moved, or moved and negatived, the Chairman shall declare the clause or item passed. If motions for requests are moved and passed, the Chail'Illan shall declare the clause or item passed, subject to the requests being complied with.'.

be left out and the following inserted in its place : 'The proceedings in Committee shall be as follows: The Chairman shall (unless otherwise ordered) call on each clause or item , and the Question shall be put by the Chailfman on each clause or item-'That the clause or item be now passed without requests.'.

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If motions for requests are moved and passed, the Chairman shall put a further Question-'That the clause or item be now passed, subject to the requests being complied with.'. In these proceedings Standing Order 265 shall not apply.' .

19. Attention is drawn to the use of the word 'now' in the Question-'Tbat the clause or item be now passed without requests'. Should the Question be negatived, the clause or item would not be negatived or the Bill amended. It would only have been determined that the clause or item be not 'now' passed without requests and that it is desired that the debate continue. As Standing Order 265 does not apply to these proceedings, the Chair could then again propose the

Question to the Committee.

Item 7-Presentation of Committee reports during the adjournment of the Senate -Standing Order 315 20. Consideration has been given to a proposal that, during a period of adjourn­ ment, a committee be authorised to send its report to the Pres ident of the Senate, who in that event shoold be authorised to print and circulate the report.

21. In 1969 the Senate Select Committee on the Canberra Abattoir was authorised to send its report to the President of the Senate, who was empowered to give directions for its printing and circulation; and, in such event, the President was required to lay the report upon the Table at the next sitting of the Senate. It was not necessary to use this procedure and the committee subsequently made its

report to the Senate.

22. The Standing Orders Committee understands that, in th e existi ng state of the law, there may be doubt whether publicatio n in such circu ms tances woul d be absolutely privileged. The matter is being further examined.

Item 8-Rights of witnesses--Standing Order 390 23. The Committee considered a suggestion that it would be advantageous to have formulated a code of rules relating to the fundamental rights of witnesses appearing before standing and select committees of the Senate, including provision in such code for protective procedures where individual interests might be under inquiry. The types of matter suggested for codifying included the questions of

notice of allegation, interval of time before questioning, representation by counsel, the right to question adverse witnesses, and the grounds of privilege excu sin g witnesses from being requi red to answer questions.

24. In considering th is matter, it was noted th at the Senate bas al ready referred a cognate matter to the Privileges Committee, with a view to establishing th e rights, responsibilities, obligations and protection of Senators, me mbe rs of the Press and others in relation to Committee proceedings .

25. To assist in the formulation of rul es , the Standing Orders Commi ttee recommends to the Senate that th e scope of th e reference to the Privil ege s Committee be enlarged to incl ude a consid eration of the general question of provision for protective procedures where indi vidu al interes ts are under inqu iry.

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Item 9-Televising of public hearings of Committees

26. On 15 March 1971 the Senate authorised the televising of the public hearings of standing and select committees, at the discretion of each such committee, and under such rules as the Senate may adopt.

27. The Standing Orders Committee has before it a draft of the proposed rules.

28. It is considered that arrangements for televising committee proceedings must conform with the observance of acceptable standards of dignity, propriety and decorum. Furthermore, arrangements must ensure that the objects and purposes of the hearing are not distorted. There are other considerations, too, which may touch upon questions of privilege and the rights of witnesses, which are matters under the consideration of the Privileges Committee.

29. It is recommended, therefore, that the Senate refer to the Privileges Committee the matter of rules to govern the televising of public hearings of Senate committees and that, for this purpose, the Standing Orders Committee be authorised to refer the draft rules to the Privileges Committee for its consideration.

Item 10--Time limit to speeches during broadcasts-Standing Order 407A

30. The Committee is of opinion that the practice which at present exists, by arrangement, of limiting speeches when the proceedings are being broadcast should be written into the Standing Orders. It is further of the opinion that all such speeches should not exceed 30 minutes.

31. Accordingly, it is recommended that Standing Order 407A be amended by inserting at the end of the first paragraph the following words: 'Pirovided further that, when ,the proceedings of the Senate are being broadcast, no Senator shall speak for more than 30 minutes in any debate, unless otherwise

ordered.'.

Item 11-Suspension of the Standing Orders to eliminate delay in passage of Bills 32. The Committee reviewed the invariable practice of moving in connection with the passage of Bills-That so much of the Standing Orders be suspended as would prevent the Bill being passed through all its stages without delay.'.

33. While recognising that the Standing Orders were framed to prevent surprise and haste, consideration was given to possible changes in the rules to facilitate the passage of legislation. For example, it was suggested that the Senator in charge of a Bill should be allowed, without a suspension of the Standing Orders, to move the second reading immediately after the first reading, provided copies of the Bill had been circulated. The debate on the second reading would then be adjourned to a future day and subsequent stages of the Bill taken by leave of the Senate.

34. The Standing Orders Committee has not concluded its consideration of this and related matters and a further report will be made to the Senate.

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Item 12-Suspension of Standing Orders--Standing Orders 448 and 449 35. The Committee has given further consideration to the procedure for the suspension of the Standing Orders without notice. There is irreconcilable conflict of opinion regarding the constitutional validity of the requirement in Standing

Order 448 for an absolute majority of the whole number of Senators (31) to carry a motion for the suspension of the Standing Orders without notice.

36. Another consideration is that, with proportional representation ensuring closely divided Senates and with inevitable absences due to sickness or other cause, 31 affirmative votes is, generally speaking, not a practical proposition.

37. Suggestions which have been considered by the Committee to resolve the matter include ( 1) a reduction of the voting stipulation of 31 to some lesser figure, (2) providing that pairs be recognised and included in the count, or (3) just simple majority.

38. The Committee has not yet concluded its consideration of this matter. However, in the course of discussion it was suggested that a motion upon notice for the suspension of the Standing Orders should be placed on the Notice Paper as 'Business of the Senate' and take precedence under Standing Order 66A, in

like manner to a motion for the disallowance of a regulation, reference of a matter to a standing committee, etc. The argument, here, is that a proposal to suspend the Standing Orders is a matter of urgency and should be determined as soon as possible, rather than be listed low on the Notice Paper where it may have little

chance of being considered.

39. No formal recommendation is at present made to the Senate on this subject of the suspension of the Standing Orders. The Committee will, however, give the whole matter further consideration and make a subsequent report to the Senate.

Reservation

40. On some of the foregoing matters, where there was not unarunuty, honourable Senators reserved their position. Senator Cavanagh requests that it be recorded that he disagrees with paragraphs 10, 30 and 31 relating to time limits.

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MAGNUS CORMACK Acting C hairrrum

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