199  Closure of debate

1. The motion that the question be now put is not open to debate or amendment and shall be forthwith put by the President and determined.
2. If the motion that the question be now put is carried, the Senate shall vote on the question immediately before it without further debate or amendment.
3. A motion that the question be now put may not be moved by a senator, other than a minister, who has spoken in the debate or who has previously moved that motion.

Amendment history

Adopted: 19 August 1903 as SOs 421 and 423 (corresponding to paragraphs (1) (in part) and (2)) but renumbered as SOs 416 and 418 for the first printed edition

Amended:

• 1 August 1934, J.459–61 (to take effect 1 October 1934) (form of the question on the closure changed from “that the Senate [or Committee] do now divide”)
• 2 December 1965, J.427 (to take effect 1 January 1966) (amendment to special majority, a requirement deleted by 1989 revision)

1989 revision: That part of old SO 431 relating to the closure combined with old SO 433 and restructured as two paragraphs; requirement for special majority to carry a closure motion removed; paragraph (3) added to make explicit a procedural rule implicit in rulings of the President; expression streamlined and language modernised

Commentary

The question of special majorities was the subject of correspondence between Blackmore and notable constitutional authorities (here, Sir William Anson). Their replies were received too late to influence the debate on the standing orders in 1903

As originally proposed, paragraph (1) included a prohibition on debate on the questions for the adjournment of the Senate, the closure and the adjournment of debate. It was amended before adoption to remove the prohibition on debate on the question for the adjournment of the Senate. Senator Neild (FT, NSW) moved the amendment to bring the Senate into line with “the majority of British Legislatures” by providing an opportunity to raise matters requiring redress without having to invoke the cumbersome procedure involving a motion for the adjournment of the Senate to debate a matter of urgency (see SOs 53 and 75).

President Baker defended the Standing Orders Committee’s recommendation on practical grounds; there was no great principle at stake:

… all these standing orders are designed to introduce the most convenient practice for getting on with the business of the country. For over two years this rule has been in force. Has it led to any inconvenience? Has it not worked well? If that is so, why not leave it as it is? I do not for a moment suggest that it involves any great principle. The majority of the standing orders are regulations for the conduct of our own business. I have lived under this rule for 35 years and have never known it to work inconvenience.[1]

It was a weak argument on this occasion and the practice prevailing in a majority of the colonial legislatures also prevailed for the Senate, but not till after a lengthy debate and sniping references to “this fetish of the South Australian standing orders”.[2]

As adopted after amendment, the standing order required a motion for the closure to be carried by a special majority (then 13 affirmative votes, or a quorum plus one). The purpose of the special majority was the protection of the rights of the minority. The main argument on the need for a special majority had occurred in debate on the corresponding standing order regulating the use of the closure in committee of the whole (see SO 144). It was one of the longest debates on any of the standing orders and spread over three days in June 1903, ranging far and wide and including quotations from John Stuart Mill’s Essay on Liberty.[3] The following day, this standing order was briefly considered and amended in the same terms.[4] All special majorities were removed from the standing orders by the 1989 revision on the grounds that they had not been updated when the Senate increased in size in 1949, “mainly because proportional representation made the achievement of more than simple majorities virtually impossible”.[5]

The form of the question for the closure was changed in 1934 on the recommendation of the Standing Orders Committee.[6] It was considered that a motion “that the question be now put” was a better form than a motion “that the committee/Senate do now divide”. As explained by Senator McLachlan (Nat, SA):

… should the question be resolved in the affirmative, the Senate must at once divide again on the main question. The Senate may not desire to divide on such question, but may be prepared to allow it to go on the voices. The amendment really effects a cleaning up.[7]

As explained by Edwards, the change also released the Senate from dividing on the closure itself. He cites an example on 8 August 1940 when the closure was agreed to without a division.[8]

SO 199 provides an excellent example of the scope and effectiveness of the 1989 revision which rationalised the content of the standing orders by removing obsolete material and grouping like matters. Moreover, practices well established by rulings were formalised to ensure that the standing orders continued to provide, as nearly as possible, that complete code of practice envisaged by the drafters of the first standing orders. Paragraph (3) is an example of the codification of a procedural rule implicit in rulings of the President. It gave expression to the principle that a senator may speak only once in a debate and is therefore not entitled to the call a second time to move the closure or, having been called to speak, to speak and move the closure.[9] These restrictions do not apply to a minister, however, because a minister, as well as having a right to speak in a debate, has a right under SO 56 to move a motion connected with the conduct of the business of the Senate at any time without notice.[10]