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Standing Orders - Senate Standing Committee - 57th Session - Report - 1st


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Parliamentary Paper No. 1/1977

The Parliament of the Commonwealth of Australia

SENATE STANDING ORDERS COMMITTEE

First Report for 57th Session 1976-77

February 1977

Laid on the Table by the President and

ordered to be printed 15 February 1977

The Commonwealth Government Printer

Canberra 1978 7 0

Printed by Sands & McDougall (Aust .) Pty. Ltd ., Cavan Rd., Dry Creek

MEMBERS OF THE COMMITTEE

THE PRESIDENT (SENATOR THE HONOURABLE CONDOR L. LAUCKE), CHAIRMAN

THE CHAIRMAN OF COMMITTEES (SENATOR THE HONOURABLE T . C. DRAKE-BROCKMAN, D. F. C.)

S EN ATOR w. w. C . BROWN

SENATOR F. M. CHANEY

SENATOR THE HoNOURABLE SIR MAGNus CoRMACK, K.B.E.

SENATOR THE HoNOURABLE R. C. CoTTON

SENATOR R . E. McAULIFFE

SENATOR THE HoNOURABLE DouGLAS McCLELLAND

SENATOR J USTIN O'BRYNE

SENATOR THE HONOURABLE J. J. WEBSTER

SENATOR THE HONOURABLE R. G. WITHERS

SENATOR THE HONOURABLE K. S. WRIEDT

Printed by a uthori ty by the Commonwealth Government Printer

STANDING ORDERS COMMITTEE

Report on the Statement by the President relating to the Fifth Edition of 'Australian Senate Practice', 10 November, 1976

On 11 November 1976 the Senate resolved that a statement made by the President of the Senate on 10 November 1976 be referred to the Standing Orders Committee for consideration and report. The statement related to the procedures followed in the publication of the Fifth Edition of Australian Senate Pra ctice and was made consequent upon Questions Without Notice asked on the same day by Senators J. M. Cavanagh and R. Bishop.

The Questions Without Notice and the statement made are as follows:

SENATE Hansard PAGE 1785

Senator CAVANAGH- I direct a question to you, Mr President, I ask: When a document is tabled in the Senate, is some marking placed on the document to permit its easy identification as the original document which was tabled? Did you, Mr President, on 18 February table a document entitled Australian Senate Practice-Fifth Edition written

by the Clerk of the Senate? Did the Senate order the document to be printed? Is the printed copy of Australian Senate Practice-Fifth Edition distributed this week the original document tabled and ordered to be printed or has there been substantial alteration to the document that the Senate ordered to be printed? If substantial altera­ tions were made, would that not be contrary to the order of the Senate? The PRESIDENT -It is a fact that revisions are made from time to time. This has been the practice over many years. There may be variations between the document tabled and the book produced because of certain revisions. That is all. Also, computerised type­ setting can have an effect on the subsequent presentation of the draft material. But the fundamentals remain. There is every right here and at Westminster for variations to be made. Senator CAVANAGH- I ask a supplementary question, Mr President. Can I obtain a copy of the document which was tabled and ordered to be printed?

The PRESIDENT - Senator Cavanagh, I understand that you have already been supplied with that document. Senator Cavanagh-! dispute that. The PRESIDENT- You dispute that that was the document? Senator Cavanagh-Yes. The PRESIDENT -1 shall investigate this matter.

SENATE Hansard PAGE 1791

Senator BISHOP-Mr President, my question is directed to you. It relates to your answer to Senator Cavanagh about the book by Mr Odgers. Would you provide the Senate with details of all the revisions claimed to have been made to the document which was actually tabled in the Senate on 18 February and which the Senate agreed should be

printed? Mr President, whatever the practices, I put to you for your consideration that, if there are major revisions to a document, they should be reponed to the Senate. It should be for the Senate again to give assent to the printing. I do not know the position but I put that proposition to you to assure that without the consent of yourself and / or the Senate there are no major revisions to a document which has been tabled. The PRESIDENT -1 must say to the honourable senator that I have no doubt that the document as tabled is the document which constitutes the fifth edition. There has been quite a serious inference in a few questions this afternoon and I am not happy about them

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in that respect. I shall make a statement on this matter a little later in the afternoon. I have the greatest respect for the integrity of our Clerk and I am concerned deeply at any inference which questions that.

SENATE Hansard PAGE 1842

The PRESIDENT- Honourable senators, earlier in the sitting I was asked question by Senators Cavanagh and Bishop relating to the publication of the fifth edition of Australian Senate Practice. I said that I would investigate the matter. I now read to the Senate a statement by the Clerk of the Senate:

Senator Cavanagh asked whether the printed copy of Australian Senate Practice- 5th Edition-is the original document tabled and ordered to be printed, or whether substan­ tial alterations have been made. He further asked whether substantial alteration would be contrary to the order of the Senate, and also requested a copy of the document which

was tabled. Yesterday, 9 November, Senator Cavanagh asked me for the tabled copy, which was immediately supplied to him. He returned the document to my office during the course of today's question time. I assure you, Mr President, that the copy given to Senator

Cavanagh was the tabled manuscript, which was sent unaltered to the Government Printer. I acknowledge-and the published work itself indicates-that I have followed the practice I have adopted in the preparation of all five editions of Australian Senate

Practice, that of correcting and revising the text during the printing stage. While proof­ reading, I have always kept the work up-to-date with new matter, precedents and practices, and I have also changed the language and made additions if I thought I could better express a meaning. I emphasise, however, that the revisions made have in no way changed the essence of the book.

In the case of the fifth edition the substance is expressed in the preface, which it will be recalled was made public on the day of tabling.

That concludes the Clerk's statement. Before replying to Senator Bishop, may I explain a comment I made earlier in the day in reference to the Westminster system. What I had in my memory was that, in the House of Commons, in certain circumstances papers may be presented in dummy form . The reference is Erskine May 19th edition, page 257. Senator Bishop asked if I would provide the Senate with details of any revisions made by

the Clerk. I point out that the tabled copy is available to all honourable senators for comparison with the published work. I therefore do not think it necessary for me to supply details of all revisions to the document tabled in the Senate. The second part of Senator Bishop's question relates to whether, if major revision has

been made, it should be for the Senate again to assent to the printing. It has been the practice for the Clerk, as he acknowledges in his statement, to up-date and revise each edition after the Senate has ordered its printing, and no subsequent order for printing has been made.

I repeat what I said earlier in the day, that I have the greatest respect for the integrity of the Clerk. His integrity and dedication to the Senate are byond question. He has, at all times, been strong and sincere defender of the powers of the Senate.

The questions and the statement involved matters of fact about which there appeared to be some dispute or doubt and questions relating to the Standing Orders of the Senate. The Committee has extracted from Questions Without Notice and the statement the questions of fact and those relating to the Standing Orders which in its

view fall to be answered.

The questions of fact were answered by the Clerk of the Senate and author of Australian Senate Practice, Mr. J . R. Odgers, who discussed them with a sub-3

committee oftwo appointed by the Committee, Senators Brown and Chaney, and who provided manuscript and the various proof copies of the manuscript which were produced by the Government Printer.

The Committee had no difficulty in determining the factual position. It seems likely that the dispute in the Senate on 10 November 1976 about whether the original manuscript was produced to Senator Cavanagh arose because it was not clearly under­ stood what procedures had been followed on the occasion of this and prior publica­ tions of Australian Senate Practice.

After the first proof copies had been checked against the original manuscript and the photo copy of the manuscript made by the Senate reproduction section there were substantial alterations made to these proof copies and further alterations to sub­ sequent proof copies from which the Fifth Edition was finally produced.

Senator Cavanagh was supplied with the document he requested, namely the original manuscript which was tabled on 18 February 1976. It is the Committee's view that the procedure followed in the publication of this and previous editions is not strictly in conformity with the order of the senate that a tabled manuscript be printed as there is substantial revision between tabling and final printing. Alternative procedures should be followed in the event future editions are produced.

The integrity of the Clerk of the Senate is referred to in the President's statement. The Committee wishes it to be completely clear that in its unanimous view no question or doubt arises about the integrity of the Clerk. On 5 occasions he has produced a work which has been much used and appreciated by Senators of all Parties notwithstanding each edition has included statements of opinion with which some Senators would not necessarily agree. On each occasion it has been printed on the order of the Senate after tabling of the manuscript. This procedure has not allowed for the usual author's revisions which occur during the various stages of printing but the matter has not previously been raised. As later appears the Committee recommends changes which might be made to Standing Orders and to Senate procedures if further editions are produced.

The questions of fact raised and the answers to them are as follows:

1. Q. When a document is tabled in the Senate, is some marking placed on the document to permit its easy identification as the original document which was tabled. A . As a matter of administrative practice a document which is tabled in the Senate

is normally given to an attendant to deliver to the Clerk of Papers. Such documents are stamped and numbered in his Office and the documents are then filed in the strong-room in the Papers Office. The number given to each document is noted on the Papers Office's copy of the Senate Journals.

2. Q. Did the President, on I 8 February I 976, table a document entitled Australian Senate Practice Fifth Edition, written by the Clerk of the Senate. A. Yes.

3. Q. Did the Senate order the document to be printed.

A. Yes.

4. Q. How was the document tabled identified after tabling, if at all. A. No identifying note was made on the manuscript after tabling. When it was tabled the manuscript was retained by the Clerk who subsequently arranged

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for its printing. Commonly, when papers are tabled and ordered to be printed the table copy is sent to the Clerk of Papers and another copy is sent to the printer. In this case, as there was only the manuscript and a copy made by the Senate n.;production office, which was in the safe in the Clerk's office, the

manuscript was not sent down to the Clerk of Papers.

5. Q. What happened to the document after tabling.

A. After tabling the manuscript was returned to the safe in the Clerk's office.

6. Q. When was it sent to the Government Printer.

A. On the following Friday, 20 February 1976, the manuscript was delivered to the Australian Government Publishing Service with a letter requesting 10 proof copies. The manuscript was returned to the Clerk in sections with the proof copies of the relevant sections over a period of six or seven weeks . The

manuscript was heavily annotated in red by the printer for the purpose of the computer printing technique being used by the A.G.P.S.

7. Q. It is within the first hand knowledge of the Clerk that 'the copy given to Senator Cavanagh was the tabled manuscript, which was sent unaltered to the Government Printer'. A. Yes. The manuscript is a distinctive document prepared by the Clerk and is

easily identified by him. It was dealt with as set out below.

8. Q. What procedures were followed by the Clerk in 'correcting and revising the text during the printing stage'. A. When the sections of manuscript and proof were received the Clerk commenced checking the 'readers proof prepared by the Government Printer

against the manuscript with a Research Officer in the Senate Department. As the manuscript was difficult to read from because of the printer's annotations, they switched the working from a photocopy of the manuscript made by the reproduction office referred to above.

As checking proceeded revisions were made which appear on the reader's proof copy. On completion of the revision of the whole of the reader's proof it, and the manuscript were returned to the printer. Because of the extent of the revisions the printer sent a further (second) galley proof which was again sent

in sections along with the first corrected proof and the manuscript. The second proof was then revised in the same manner and returned to the printer. After that the printer prepared page proofs. The page proofs were again checked in the same manner. There was some

revision at each stage and at the page proof stage the necessary cross referencing of page numbers etc. is done. The page proofs were again returned to the printer and a fresh set of page proofs printed. These were checked again in the same manner with some further correcting and revising. That was the final check and the second page proofs were sent to the printer and the book

was produced from these proofs. The original manuscript was returned to the Clerk by the printer after the book had gone to press. It was in a brown paper parcel and remained unopened in the Clerk's library until its production was requested by Senator Cavanagh.

In due course it would have been sent down to the Clerk of Paper's office for putting away in the strong room in the usual way.

9. Q. How can the corrections and revisions, changes and matters added, referred to in the statement, be identified. ·

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A. By inspection of the proofs which show all revisions. The alterations are too numerous to detail in this report.

10. Q. Are the alterations substantial. A. Yes. The first chapter particularly was heavily revised, but all chapters were subject to revision.

11. Q. Do the alterations so made alter the substance of the papers tabled. A. The theme or essence of the new addition is expressed in the preface which except for grammatical and minor changes remained unaltered from the tabling of the manuscript. The first galley proof was amended heavily because

parts did not satisfy the Clerk in balance or expression, e.g. the section on the overseas loan raising which was written in 1975. In such cases sections were re-written. There were also numerous deletions. The judgement of whether or not the substance is changed is difficult because what is substance is open to differences of interpretation. The Committee did not consider it necessary to make the judgement. The Clerk altered the proofs as he saw fit to meet his own standards of expression and balance consistent with the practice in the production of previous editions.

12. Q. Was the document given to the Senator Cavanagh the tabled manuscript. A. Yes.

13. Q. Are documents, tabled in the Senate and ordered by the Senate to be printed, in fact altered, after tabling and before printing, without the permission of the Senate. A. On occasions minor errors are corrected where there have been obvious errors

for example, errors in figures or typographical errors.

14. Q. What was the procedure followed in respect of earlier editions of Australian Senate Practice. A. The same procedure as for the Fifth Edition. 'I have regarded the tabled copy of each edition', the Clerk advised the

Committee, 'as a working manuscript, and the Senate's order to print as a mechanism to set in train the normal processes involved in the publication of a book. That is to say, I have interpreted the Standing Order liberally to mean a process of production and have exercised an author's right of amendment during that process'.

The questions relating to the Standing Orders are as follows: 15. Q. Is it in order for a paper ordered to be printed by the Senate to be published in an altered form, or in the present case, if substantial alterations were made to the document tabled on 18 February 1976 would that not be contrary to the

order of the Senate.

16. Q. Should there be a provision in the Standing Orders for the altering of documents between the order of printing and the actual printing. 15 and 16 A. As is indicated in the answer to Question 13, it has been the practice to permit

minor amendments during the printing of Parliamentary papers. This is a common-sense practice. It could be argued that it would be taking a technical view of an order that a paper be printed to suggest that typographical errors or mistakes in figures should not be corrected. On the other hand an order that a

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particular document be printed is a direction which in the absence of some excepting provision ought to be carried out in its terms. The provision in Standing Order 219 which permits amendments of a verbal or formal nature and the cprrection of clerical or typographical errors in a bill by the Chairman

of Committees adequately deals with a similar problem which can arise with respect to bills. It would clarify the position if a similar Standing Order enabled the President or the Clerk to make verbal or formal corrections to a document ordered to be printed. The Committee recommends accordingly. The question of substantial alteration to a manuscript or other document is dealt with

under Question 19. 17. Q. Should there be another procedure for identifying documents tabled. A. The misunderstanding in the present case arose because of the hiatus between the tabling of a document and its marking for identification under the practice

which is followed. Although this has not given rise to any substantial problems in the past, the misunderstanding which occurred in the present case could have been avoided if a similar procedure to that followed in courts when documents are tendered as exhibits was followed in the Senate. The Com­

mittee recommends that in future documents which are tabled should be marked by the Clerk in a way is adequate to ensure subsequent

identification before such documents leave the Senate chamber.

18. Q. What is the status of Australian Senate Practice in the light of it being printed as a Parliamentary paper. A. It is clear that the order that the Australian Senate Practice be printed as a Parliamentary paper does not amount to the adoption by the Senate as a whole

of the views contained in the work. It is not put forward by its author on that basis and in that regard the author's note at the front of the 2nd edition ( 1959) is instructive. The note reads in part: In seeking the Senate's approval for the printing of this second edition, it is proper that I should say that, although the work is largely a compilation of President's rulings and established practice, there is some degree of personal opinion. In so far as that opinion is concerned, it is put forward as a contribution to thought and without pretension to be accepted as conclusive.

A similar note in future editions would avoid misunderstanding about the status of the work.

The following comments by Senate leaders during debates on earlier editions also make its status clear: Senator Spooner (Vice-President of the Executive Council and Minister for National Development) (15 .5.59, in moving motion for the printing of the Second Edition)-

Although it is in almost constant use in the Senate, it is not an authoritative work. To the extent that the contents are comments and not records of decisions of Presidents of the Senate, they are not binding on Senate procedure. I think it well to say that, Mr. President, while this motion is being discussed.

Senator McKenna (Leader of the Opposition) (15 .5.59) I welcome your announcement, Mr. President, of the presentation of a second edition of Australian Senate Practice. We understand thoroughly that the book is not authoritative in the sense that the President or any member of the Senate is bound by its conclusions

and opinions, but it has the most persuasive effect of any document I have seen circulat­ ing in an arena such as this. If it becomes a matter of setting a book, which I have known and valued, against a lot of opinions in this place, I shall place my money on the book.

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Senator Henty (Minister for Supply) (20.9.67) Honourable senators have received the third edition of the Australian Senate Practice by the Clerk of the Senate, Mr. J. R. Odgers. This work is of great value not only to the Senate but also to the Australian nation. As the President stressed in his Press state­ ment, although this work is published as a parliamentary paper by order of the Senate, it is not strictly an official document. I believe that that enhances its value. Mr. Odgers has brought to this work an entirely objective and impartial mind and the work will be of great value to all honourable senators, particularly new senators. It places on record the

best of the experiences of the Australian Senate since federation.

Senator Murphy, Leader of the Opposition (20.9.67) The Opposition joins the Leader of the Government (Senator Henty) in his congratula­ tions to Mr. Odgers on this valuable work which he has produced once again for the benefit of the Senate and the nation. I have been greatly aided by the previous two editions which have been used by all honourable senators. I only ask on behalf of us all that Mr. Odgers keep on doing what he is doing, that he continue to gather material, argument and suggestions and incorporate them in yet another work in the fullness of time.

The Committee accepts that Australian Senate Practice is a work of great value to Senators. It is not, however, an official document binding on the Senate except insofar as it records decision binding on the Senate but, as with the text book, it is a persuasive value.

19. Q. What procedure should be followed by the Senate if it wishes to produce subsequent editions of Australian Senate Practice. A. In the case of the future production of Australian Senate Practice or any similar work, a matter which will be determined by the Senate at the time when

the question arises, the Senate could authorise the preparation of the work which when ready for publication could then be tabled and a motion moved for it to be printed as a parliamentary paper. Summarizing, the Committee recommends -

(I) The documents which are tabled be marked by the Clerk in a way which is adequate to ensure subsequent identification before such documents leave the Senate Chamber. (2) That there be incorporated in the Standing Orders a provision, similar to

Standing Order 219, to provide that no corrections shall be made to a document ordered to be printed unless they are of a verbal or formal nature.

( 3) That in the case of the future production of Australian Senate

Practice, or any similar work, a matter which will be determined by the Senate at the time when the question arises, the Senat(! authorises the preparation of the work which when ready for publication can then be tabled and a motion moved for it to be printed as a Parlia­ mentary Paper.

February 1977

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CONDOR L. LA UCKE

President of the Senate and

Chairman of the Standing Orders Committee