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


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The Parliament of the Commonwealth of Australia

.SENATE .STANDING ORDERS COMMI'ITEE

Fourth Report for Fifty-ninth Session 1978-79

April1979

Brought up and ordered to be printed 2 May 1979

Parliamentary Paper No. 70/1979

The Senate

STANDING ORDERS COMMITTEE

FOURTH REPORT

FOR FIFTY-NINTH SESSION

1978-79

APRIL 1979

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

The Senate

STANDING ORDERS COMMITTEE

FOURTH REPORT

FOR FIFTY-NINTH SESSION

1978-79

APRIL 1979

AUSTRALIAN GOVERNMENT PUBLISHING SERVICE CANBERRA 1979

©Commonwealth of Australia 1979 ISBN 0 642 04374 4

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

MEMBERS OF COMMITTEE

The President (Senator the Honourable Sir Condor Laucke, K.C.M.G.) The Chairman of Committees (Senator D. B. Scott) Senator P. E. Baume Senator the Honourable J. L. Carrick Senator the Honourable F. M. Chaney Senator G. Georges Senator R. E. McAuliffe Senator the Honourable D. McClelland Senator the Honourable Jus tin O'Byrne Senator P. E. Rae Senator the Honourable J. J. Webster Senator the Honourable K. S. Wriedt

CONTENTS

Page

Item 1. Standing Order 36A: Regulations and Ordinances Committee 1 Item 2. Transfer of Notice of Motion for Disallowance 1

Item 3. Estimates Committees-Seniority of Departmental Witnesses . 3 Item 4. Government Consideration of Senate Committee Reports 3

Item 5. Precedence to Government Statements on Parliamentary Committee Reports 4

Item 6. Urgency Motion and Discussion of Matter of Public Importance . 5 Item 7. Legislative and General Purpose Standing Committees-Reft>rence of Bilb 7

Item 8. Proceedings on the Report of an Offence 8

Item 9. Other Matters . 9

STANDING ORDERS COMMITTEE

FOURTH REPORT FOR FIFTY-NINTH SESSION 1978-79

The Standing Orders Committee makes the following Report to the Senate:

Item !-Standing Order 36A: Regulations and Ordinances Committee 1. Paragraph (4.) of Standing Order 36A reads as follows: (4.) All Regulations and Ordinances laid on the Table of the Senate, except those of the Northern Territory, shall stand referred to such Committee for consid­

eration and, if nec·essary, report thereon. Any action necessary, arising from a report of the Committee, shall be taken in the Senate on Motion after Notice. 2. For some years the Regulations and Ordinances Committee has interpreted the word 'Regulations' as meaning all instruments published in the Statutory

Rules series under the Statutory Rules Publication Act. The Statutory Rules series include not only regulations . made under Commonwealth Acts but also Rules of Court and some other rules subject to disallowance by either House of the Parliament.

3. Since 1975 certain Acts of the Parliament have been passed empowering the making of by-laws and other instruments which cannot properly be called 'Regulations'. Because these instruments are of a legislative character and are sub­ ject to disallowance by the Parliament, the Committee has undertaken their scrutiny and has made reports upon them to the Senate. 4. To formalise its present practice the Regulations and Ordinances Committee, in its Sixty-second Report, proposed an amendment to Standing Order 36A. On 28 September 1978, the Senate referred the proposed amendment to the Standing Orders Committee. The Committee supports this proposal and recommends that

paragraph ( 4.) of Standing Order 36A be amended as follows: Leave out 'All . Regulations and Ordinances laid on the Table of the Senate, except those of the Northern Territory,', ins·ert 'All regulations, ordinances and other instruments, made under the authority of Acts of the Parliament, which are subject to disallowance or disapproval by the Senate and which are of a

legislative character,'. 5. This amendment covers only those instruments which the Committee considers at present and instruments of a similar kind which may be made in the future. It does not cover instruments which, although subject to disallowance, are not legis­ lative in character and which, therefore, are not currently considered by the Committee, such as notices of acquisition of land. 6. The interpretation of the expression 'of a legislative character' is seen as a

matter for the Committee itself, subject to any direction by the Senate.

Item 2-Transfer of Notice of Motion for Disallowance 7. In the Senate on 25 October 1978 reference was made to the procedure for the transfer to another Senator, if desired, of a notice of motion for the dis­ allowance of a statutory instrument in circumstances where the time for giving effective fresh notice has expired.

8. The Standing Orders allow a Senator to withdraw a notice of motion standing in his name without leave, the principle being that a notice of motion, until the motion is actually moved and thereby becomes the property of the Senate, remains the property of the Senator giving the notice. In the case of an ordinary notice of motion, the withdrawal does not affect the right of another Senator who may wish the notice of motion to proceed, because it is always competent for that other Senator to give a fresh notice of motion in the same terms as the one withdrawn. A fresh notice of motion for the disallowance of a regulation

etc. may, however, be of no effect, because under the Acts Interpretation Act 1901 and other relevant Acts, a notice of motion for disallowance must be given within a limited period (usually fifteen sitting days) after the instrument is tabled. The withdrawal of a notice of motion may take place after the

expiry of this time limit, and this would prevent any other Senator from giving an effective fresh notice of motion.

9. This problem has arisen in the past and has been overcome by obtaining leave of the Senate to transfer a notice of motion for disallowance from the name of the Senator wishing to withdraw the notice to the name of the Senator wishing to proceed with it. -

10. The Committee recommends that a formal amendment of the Standing Orders be made to provide for a new Standing Order 109 A which will regularise the right of a Senator, in all circumstances, to take over a notice of motion for disallowance where the Senator who gave the notice wishes to withdraw it.

ll. Because the proposed new Standing Order contains procedures which may need review, the Committee recommends that it operate, on a trial basis, as a Sessional Order. The proposed new Sessional Order reads:

109A. A Senator who wishes to withdmw 'a notice of motion standing in his name to disallow, disapprove, or declare void and of no effect any instrument made under the authority of any Act which provides for the instmment to be subject to disallowance or disapprov,al by either House of the Parliament, or subject to a resolution of either House of the ParHament declaring the

instrument to be void and of no effect, shall give notice to the Senate of his intention to withdraw the notice of motion. Such notice of intention shall be given in the same manner as a notice of motion, shall · indicate the stage 1 in the routine of business of the Senate at which it is intended to withdraw the notice of motion, and shall not have effect for the day on which it is given; except . that, if given on a day on which by force of the statute the instrument shall

be deemed' to be disallowed if the motion has not been withdrawn or otherwise resolved, or on a day on which by force of the statute the motion must be

passed in order to be effective, such notice of intention may have effect for a later hour of that day. If another Senator, at any time after the giving of such notice of intention and before the intended withdrawal of the notice of motion :indicates to the Senate that he wishes the notice of motion not to be withdrawn: his name shall be put on the notice of motion, the name of the Senator who wishes to withdraw the notice of motion :shall be removed from it, and it

shall not be withdrawn; but :if no Senator so objects to the withdmwal of the notice of motion, it may be withdrawn in accordance with such notice of

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intention. For the purpose of this Standing Order, 'instrument' has the same meaning as for the purpose of Standing Order 66A.

12. Honourable Senators will note that the notice of intention to withdraw a notice of motion for disallowance will be given in the same manner as a notice of motion and, as such, will appear on the Notice Paper for the next day of sitting, immediately following the notice of motion. Where notice of intention is given on a day on which by force of the statute the instrument shall be deemed

to be disallowed if the motion has not been withdrawn or otherwise resolved, or on a day on which by force of the statute the motion must be passed in order to be effective, such notice of intention may have effect for a later hour of the day. In these circumstances, the Committee proposes that the Clerk of the Senate be advised within sufficient time to enable the notice of intention to appear on the Senate 'Order of Business' sheet.

Item 3-Estimates Committees-Seniority of Departmental Witnesses

13. The Committee draws to the attention of the Senate the opinions expressed in Reports of a number of Estimates Committees concerning the failure by departments and statutory authorities, on occasion, to provide witnesses of sufficient authority and with sufficient information to reply adequately to

questions asked by Senators. In the main, the Committee considers that depart­ mental representation before Estimates Committees has been adequate. However, the Committee agrees with the opinion previously expressed by Estimates Com­ mittees that departmental witnesses appearing before the Committees should

be of sufficient seniority to ensure that the fullest possible information is provided.

Item 4-Gove.rnment Consideration of Senate Committee Reports

14. In its Second Report to the Senate (May 1978) the Standing Orders Com­ mittee reported: Item 2-Government consideration of Senate Committe•e Reports

7. Committees appreciate knowing the fate of their reports and recommendations and a response by the Government is stimulating to committee work. I:t is recommended, therefore, that the Senate adopt the following revised resolution:

Following the presenrt·ation ·of a Report from a Standing Committee or Select Committee of the Senate which recommends action by the Government, the President shall forward to the Leader of the Government in the Senate a copy of such Report requesting that the Government, within the ensuing

three months and not later than the first sitting day after three months, tab]e a Paper informing the Senate of its observations and intentions with respect to the recommendations made in the Repor-t. The President shall report to the Senate those cases in which ·there has been no response from the Government pursuant to this resolution.

15. When this recommendation was considered by the Senate on 16 August 1978, the Minister, in announcing that the Government could not accept the

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recommendation of the Standing Orders Committee, restated the Government decision which had been announced on 26 May 1978, as follows: Henceforth, within six months of the tabling of a committee report, the

responsible Minister will make a statement in the Parliament outlining 'the action the Government proposed ;to take in relation to the report. If the six­ month period expires duliing a parliamentary recess, the ministerial statement will be made :the earliest opportunity in the next parliamentary sittings. 16. To aid the Senate in its further consideration of this matter, the recom­ mendation of the Standing Orders Committee was referred back to the Committee for reconsideration in conjunction with the Government's decision on the action

which is proposed to take with regard to Parliamentary Committee reports.

17. The Committee has considered the matter and accepts the Government's decision. 18. The Committee notes that, since the Government's decision on this matter, the Senate Records Office has established a register which records the tabling dates of appropriate Parliamentary Committee Reports and the date of pre­ sentation to. the Senate of any Government statement thereon. The Committee endorses this procedure and proposes that the President, from time to time, as considered necessary, inform the Senate when Government statements are not presented within the prescribed time.

Item 5-Precedence to Government Statements on Parliamentary Committees Reports Standing Order 66B reads as follows: 66B. The following business shall take precedence of any other 'General Business'

on the day on which it is :set down on the Notice Paper, viz.: A Motion for the considerat,ion or adoption of the Report from

Standing Committee of the Senate or Joint Standing Committee of the two Houses.

19. Under the existing Standing Order, while precedence is given to a motion for the consideration or adoption of a Senate or Joint Committee report, no precedence is given to the Government's response on such reports.

20. To ensure that the Senate is provided with the opportunity to consider fully all matters pertaining to Senate and Joint Committee inquiries, the Standing Orders Committee recommends that Standing Order 66B be amended to read as follows:

66B. The following business shall t:ake precedence of any other 'General Business' on the day on which it is set down on the Notice Paper, viz.: A Motion for the considevation or adoption of the Report from any Standing or Select Committee of the Senate, or Joint Standing or Select Committee of the two Houses, and, unless otherwise ordered, any Government statement thereon.

21. The proposed new Standing Order will give precedence to Government state­ ments on Senate and Joint Committee Reports which is similar to that afforded to the Reports themselves. The term 'unless otherwise ordered' provides flexibility

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to the Standing Order which may enable the Government to give its own precedence to its own statement.

Item 6--Urgency Motion and Discussion of Matter of Public Importance

22. Standing Order 64 reads as follows: 64.-(1) A motion without Notice, 'That in the opinion of the Senate the following is a matter of urgency: [here :specify the matter of urgency]', can only be made after Petitions have been presented and Notices given, and

before the Business of the Day is proce-eded with.

(2) The Senator so moving must make in writing, 'and hand in to the President at least 90 minutes before the time fixed for the meeting of the Senate, a

statement of t1 he matter ·of urgency.

(3) Such motion must be supported by four Senators rising in their places as indicating their approval thereof.

(4} Not more than one such Motion oan be made during a sitting of the

Senate, and the Motion may not be amended.

(5) In speaking to such Motion, the mover .and the Senator next speaking shall not ·exceed 30 minutes each, and any other Senator or the mover in

reply shail not exceed 15 minutes, and every Senator shall confine hilffiself :to the one subject in respeot of which the Motion has .been made: Provided that the whole discussion on the subj ect shall not exceed 'three hours.

23. On 7 March 1978, the Senate considered amendments to Standing Order 64 as proposed by the Standing Orders Committee. It was resolved that proposed new Standing Order 64, as amended in Committee of the Whole, operate on a trial basis as a Sessional Order for 1978. The Sessional Order reads as follows:

;MATTER OF PUBLIC IMPORTANCE-PROPOSED NEW STANDING ORDER 64 (To operate on a trial ba·sis as a Sessional Order for 1978)

64. (1 ) A Senator may propose to the President that a matter of public

importance be submitted to the Senate for discussion. (2) The Senator proposing the matter shall hand in to the President at least 90 minutes before the time fixed for the meeting of tthe Senate, and on that day only, a written statement of the. matter proposed to be discussed that day.

(3) If the deems the mat ter proposed for discussion to be in order,

he shall read it to the Senate after Petit,ions have been presented, notices given, and Questions seeking information have been asked, and before other business of the day is proceeded with. (4) The proposed discussion must be supported by four Senators , not including the proposer, rising in their p1aces as indicating their appr-oval thereof.

(5) In the event of more than one matter being presented for the same day, priority shall be given to the matter which is fir st handed Ito the President, and no other proposed matter shall be read to the Senate that day. (6) Unless otherwi·se ordered, the Senator pwposing the matter and the Senator next speaking shall not speak for more than 30 minutes eaob, and any other Senator shall not speak for more than 15 minutes, and every Senator shall confine himself to the one subject which has been pmposed a s the matter

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of public importance: Provided that the whole discussion on the subject shall not exceed two hours. (7) At .any time -during the discussion, a motion may be made by any Senator, but not so a:s to interrupt another Senator addressing the Senate-That

the business of th e day be ,called on. No amendment, adjournment or debate shall be .allowed on such motion, which shall be put immediately by the President; if agreed to, the business of the day shall be proceeded with

immediately. 24. The Standing Orders Committee has reconsidered proposed new Standing Order 64 in conjunction with the existing Standing Order. It considers that Senators may wish to have the choice of moving a motion to debate a matter of urgency or of proposing to the President that a matter of public importance be submitted to the Senate for discussion.

25. The Committee therefore recommends that the following new Standing Order 64 operate as a Sessional Order on a trial basis: 64. (1) A Senator may (a) propose that •a matter of public importance be submitted to the Senate for discussion; or (b) move a motion, wi thout notice,

'That in the opinion of the Senate the following is a matter .of urgency: [here specify the matter of urgency]'. (2) The Senator proposing the mat•ter of public importance or the motion to debate the matter of urgency shall hand in to the President, at least 90 minutes before the time fixed for the meeting of the Senate, and on that day only, a wri•tten statement of the proposed matter of public importance or urgency, as the case may be.

(3) If the President deems a proposed matter of public importance or urgency to be in order, he shall read it to the Senate after Petitions have been presented, Notices given, and Questions seeking information have been asked, and before other business of the day is proceeded with.

(4) The proposed matter of public importance or motion to debate a matter of urgency must be supported hy four Senators, not including the proposer, rising in their places as indicating their approv.al thereof. (5) In the event of more than one matter of public importance or urgency being presented for the same day, priority shall be given to that which is first handed to the President, and no other proposed matter of public importance or urgency shall be read to the Senate tha>t day.

(6) A motion to debate a ma-tter of urgency may not be .amended.

(7) Unless otherwise ordered, neither the Senator proposing a matter of public importance or moving a motion :to debate a matter of urgency, nor the Senator next speaking, shall ·speak for more than 20 minutes, and no other Senator, including the mover of the motion to debate a matter of urgency in repl y, shall speak for more than 15 minutes: Pmvided that the whole discussion on the subject shall not exceed two hours.

(8) Every Senator speaking shall confine 'himself to the stated subject of the matter of public 'importance or the terms of the motion to debate a matter of urgency.

At any time during the discussion of a matter of public importance, a

mot10n may be made by any Senator, but not so as to interrupt another

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Sena:tor addressing the Senate-That the business of the day be called on. No amendment, adjournment or debate shall be allowed on such motion, which shall be put immediately by the President; if agreed to, the business of the :day shall be proceeded with immediately.

26. The Committee draws the attention of the Senate to the following points in connection with the proposed new Standing Order: ( 1) A Senator has an option to move to debate a matter of urgency or

propose to the President that a matter of public importance be submitted to the Senate for discussion. (2) That in contrast to the previous Standing Order and the 1978 practice, it is proposed that, unless otherwise ordered, speaking times for both options be no more than 20 minutes for the first and second speakers and

no more than 15 minutes for any speaker thereafter, and that the whole discussion on the subject shall not exceed two hours.

(3) Notice of a Senator's intention to propme a matter of public import­ ance or to move a matter of urgency must be handed in to the President at least 90 minutes before the time fixed for the meeting of the Senate and on that day only.

( 4) Priority shall be given to that matter first received by the President.

Item 7-Legislative and General Purpose Standing Committees-Reference of Bills

27. On 16 August 1978 the Senate agreed that new procedures for the reference of certain Bills to Legislative and General Purpose Standing Committees should operate on a trial basis as a Sessional Order for 1978. The Sessional Order adopted reads as follows:

LEGISLATIVE AND GENERAL PURPOSE STANDING COMMITTEES­ REFERENCE OF BILLS (To oper•ate as a Sessional Order for 1978) After the second reading of a Bill (other than an Appropriation Bill, Supply Bill, or Bill imposing taxation), and notwithstanding anything contained in the Standing Orders and without limiting the operation of Standing Orders 36AA

and 196A, the :following procedure ·shall apply-(1) A motion (of which notice need not be given) may be moved to refer the Bill to a Legislative and General Purpose Standing Committee: Provided that if no such motion be moved, or if moved and negatived, the Senate shall

forthwith resolve itself into a Committe·e of the Whole for consideration of the Bill.

(2) Upon motion to refer a Bill to a Legislative and General Purpose Stand­ ing Committee, no deb ate thereon shall be allowed for more than one hour, and in spea king thereon no Senator shall exceed ten minutes . .Jf the debate be not sooner concluded, then forthwith upon the expiration of that time the President shall put any Questions on any amendment or motion already proposed from the Chair.

(3) On reference of a Bill to a Legislative and General Purpose Standing Comrni.ttee, a day shall be fixed for the reporting of a committee's proceedings

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to the Senate, by which day the final report of the committee shall be brought up, unless further time be moved for and granted: Provided that the Senate may at ,any time prior to such day receive the final report of the committee. (4) Upon .a Bill being committed to a Legislative and General Purpose Standing Committee pursuant to this Order, it shall be set down on 't:he Notice Paper as .an Order of the Day for further consideration following report from the committee.

(5) The procedure to be adopted by a Legislative Geneml Purpose

Standing Committee shall, as far as possible, be the same as that in Committee of the Whole: Provided that a committee may ask for explanations from the Minister in charge of a Bill, or officers, relating to the clauses of the Bill. (6) A Legislative and General Purpose Standing Committee shall have no power to make amendments to a Bill, but may recommend amendments or ·re­

quests for amendments. No amendment or request for amendment may be proposed which would not be in order if proposed in a Committee of the Whole. (7) A report from a Legislative and General Purpose . Standing Committee, relating Ito a Bill, shall be received by the Senate without debate and its con­ sideration deferred until the reading of the Order of the Day for the further consideration of the Bill, when the procedure, unless otherwise ordered, shall he as follows:

(a) motion may he proposed that the report be adopted; and such motion shall be open to debate; (b) on the motion for the adoption of the report, amendments may be proposed; '(c) in these proceedings, the same right of speech and time limits shall

apply as in debate in Committee of the Whole; (d) if amendments or requests for amendments be made, additional to any recommended by the report of a standing committee, the Chair shall propose a Question-That the Bill as reported (with or without amend­

ments or requests for amendment), and as further amended, be

agreed to; (e) a motion may be moved, by any Senator, that -the Bill as reported from a standing committee be recommitted, in whole or in part, to the standing committee, or that the Bill as reported be committed, in

whole or in part, to a Committee of the Whole; and (f) when the report from the committee, or from a Committee of the Whole, is finally adopted, the Bill may be proceeded with in the usual way.

(8) Unless otherwise ordered, this Sessional Order shall operate for 1978 only.

28. Since no reference of a Bill to a Standing Committee under the new pro­ cedure has been made by the Senate, the Standing Orders Committee is unable to gauge the effectiveness of the new procedure. It is recommended that the Sessional Order be renewed.

Item 8-Proceedings on the Report of an Offence

29. The Committee has examined Standing Order 440 which reads as follows: 440. When any Senator has been reported as having committed an offence

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he shall be called upon to stand up in his place and make any explanation or apology he may think fit, and afterwards a Motion may be moved-'That such Senator be suspended from the sitting of the Senat·e.' No Amendment, Adjourn­ ment or Debate shall be ·allowed on such Motion, which shall be immediately put by the P:resident. 30. It is recommended that the Standing Order be amended as follows:

Leave out 'he called upon to stand up in his place and', insert 'attend in his place and be called upon .to'. 31. The amendment is proposed as an improvement in expression.

Item 9-0ther Matters

32. Other matters under consideration by the Standing Orders Committee include: ( 1) The operation and staffing of Legislative and General Purpose Standing Committees and Estimates Committees.

(2) A proposal to display State identifications or insignias in the Senate Chamber or other appropriate area. ( 3) Offences committed in Committees of the Senate, other than Committee of the Whole. ( 4) Grievance Debate. ( 5) Television.

May 1979

Condor L . Laucke

President of the Senate and Chairman of the Standing Orders Committee