No.
9 - Consideration of Legislation
1. An outline of the process
About
half of the Senate’s time is spent considering proposed laws (bills).
Although any senator may introduce a bill, most bills that are
considered are introduced by the government of the day. Senators introduce their own bills as a way
of making a policy statement, but it is rare for a private senator’s bill to be
debated, let alone passed into law.
—Stages of
consideration
Each
bill, regardless of its source, is considered in the same way, involving the
following steps:
2. Some general issues
—Second
reading and committee of the whole debate
A
senator may make a second reading speech of up to 20 minutes and a further
contribution to any second reading amendment (see page 4). Senators who speak after an amendment is
moved are taken to be speaking to it.
The second reading debate goes to the principles of a bill. It is opened by a minister who outlines the
policies and rationale of the bill and is usually closed by a minister who may
respond to issues or concerns raised during the debate.
Debate
in committee of the whole is a flexible and inter-active process in which the
details of the bill are queried and amendments are moved, debated and
determined. Although a senator may speak
for up to 15 minutes at a time and there is no limit to the number of times a
senator can speak on a question if other speakers are also participating, most
contributions in committee are short.
—What is the
“cut-off”?
The cut-off is a
procedure developed by the Senate to manage the end-of-sittings rush of
legislation which, from the 1970s through to the early 1990s, saw up to 69% of
bills considered during a period of sittings considered in the last two weeks
of sittings. For a bill to be passed by
the Senate during a period of sittings (the current
period), it must have been introduced in either House in the previous
period of sittings. In addition, if it
was introduced in the House of Representatives in the previous period of
sittings, it must be received by the Senate before two-thirds of the current
period expires. A period of sittings is
any period during which the Senate is not adjourned for more than 20 days.
The procedure applies to all bills received from the House
of Representatives except those received a second time under the circumstances
described in section 57 of the Constitution.
It also applies to bills introduced in the Senate by a minister, but not
to private senators’ bills.
The
Senate may exempt particular bills from the cut-off,
allowing them to be considered during the current period. Requests for exemption take the form of a
notice of motion (see Brief Guide No. 2—Notices of Motion) and
must be accompanied by an explanation of the need for exemption.
3. The role of committees
—What role do
committees play in the consideration of legislation?
When
bills are referred to a committee, the committee usually takes evidence from
the minister, officials, interest groups and affected individuals and reports
to the Senate. Although the committees
may not amend bills, there is nothing to prevent them recommending amendments
and the Senate adopting the recommendations.
—Referring
bills to committees
There
are several means of referring bills to committees for inquiry and report. The most commonly used method is via the
Selection of Bills Committee. Senators
submit proposals to the committee for particular bills to be referred to the
relevant legislation or select committee.
The Selection of Bills Committee then makes recommendations to the
Senate about bills to be referred, the committees to which (and the stage at
which) they are to be referred, and the reporting dates. Adoption of the report by the Senate has the
effect of referring the bills as recommended.
The motion for the adoption of the report may be amended to vary the
details of the recommendations or to add or delete bills.
Bills
may also be referred by way of motion after notice, by an amendment moved to
the motion for one of the stages of consideration of a bill (see below), or by
a motion moved after the second reading of the bill is agreed to (see Brief Guide No. 7—Referring Matters to Committees).
—The Scrutiny
of Bills Committee
The
Scrutiny of Bills Committee assesses all bills against terms of reference which
are concerned with the protection of the rights and liberties of individuals
and the rights of the legislature (see standing order 24). Where the committee detects a possible
infringement, it seeks an explanation from the minister and outlines its
initial concerns to the Senate in an Alert
Digest. Results of considering the
minister’s response are presented to the Senate in a report. The committee often draws the Senate’s
attention to problematic provisions in bills and individual senators may move
amendments to address the problems.
4. Amendments and other
details
—Amendments—which
is which?
Amendments
may be moved to the text of the bill or to the motion for particular stages of
the bill’s consideration. The two should
not be confused. Amendments to the text
of the bill change, delete or add words in the bill that may affect the final
contents of the law. Amendments to the
motion add words to, or change words in, the motion to, for example:
-
express
an opinion about the bill or the government’s handling of the related
policy issues;
-
reverse
the effect of the motion so that the bill is defeated at that point;
-
refer the
bill to a committee;
-
delay
further consideration of the bill.
The
motion for the second reading (“That this bill be now read a second time”) is
the motion most commonly amended in this way.
Amendments are also sometimes moved to the motion “That the report of
the committee be adopted”, especially if the committee of the whole stage reveals
further action that the Senate may wish to take at the earliest
opportunity. An example is an order for
production of documents which may not be appropriate to include as an amendment
to the bill, but which may be achieved through an amendment to the motion to
adopt the report of the committee of the whole.
An
amendment to the motion for the second or third reading of a bill which
replaces the word “now” with the words “this day six months” has the effect of
finally defeating the bill. This
amendment is the only one which may be moved to the third reading motion.
—Textual
amendments to bills
Literally
thousands of amendments are moved each year to bills in the Senate by ministers
and by non-government senators.
Approximately one third of all bills are amended. Non-government senators are assisted by the
Clerk Assistant (Procedure) in drawing up amendments while government
amendments are usually produced by the government drafters. When amendments are finalised, the senator
responsible for them authorises their circulation and they are distributed in
the Senate chamber and published on the Internet.
An
amendment may be made to any part of a bill, provided that it is relevant to
the subject matter of the bill (see standing order 118). Subject matter is usually assessed by
reference to the long title of the bill (“A Bill for an Act to ....”) and the
explanatory memorandum, although the long title is only an indication of
subject matter rather than determinative (see Odgers’ Australian Senate Practice, 11th
edition, page 248). The
relevance rule has always been interpreted liberally. Rulings of the President of the Senate since
the early 1900s have rejected the British precedents which require amendments
to be consistent with the scope and principle of the bill.
Where
there are several sets of circulated amendments for a particular bill, the
Table Office prepares a running sheet, or marshalled list of amendments, for
the guidance of the chair and those senators participating in the committee of
the whole stage. Running sheets provide
a suggested order of proceeding and also highlight where circulated amendments
may conflict with one another and if amendments are consequential on others
being agreed to.
—Proceedings
in committee of the whole
Standing order 117 prescribes the order in
which bills are to be considered. This
is the clause-by-clause method which, in practice, is almost never
followed. Most bills are taken as a whole, meaning that the
entire bill is before the committee and available for amendment, not
necessarily in a sequential manner. This
method provides maximum flexibility, particularly in so-called amending bills
where the amendments to principal legislation are contained in schedules
appended to the body of the bill (and which, under the clause-by-clause method,
would be dealt with in a single block).
When
a bill is taken as a whole, the chair puts the question on each amendment, or
group of amendments, or on each amendment to an amendment. When all amendments have been dealt with, the
final question is “That the bill, as amended, be agreed to” or, if no
amendments have been moved or successful, “That the bill stand as
printed”. Only one amendment may be
before the chair at a time, but, in practice, amendments are frequently moved
together in groups by leave (unanimous consent of senators present).
The
question on an amendment to delete a
clause, item or proposed new section (or a larger unit such as a Subdivision,
Division, Part or Schedule) is put in the form “That the [unit] stand as
printed”. This is designed to test
whether the unit has majority support.
An equally divided vote on that question results in it being decided in
the negative and the unit being removed from the bill. If, on the other hand, the question took the
form of “That the amendment [to omit the unit] be agreed to”, an equally
divided vote would result in that question
being lost and a unit which did not
have majority support remaining in the bill.
Amendments of this type are always drafted in the form, “[unit], TO BE OPPOSED” and are always put by
the chair separately from other amendments.
Note, however, that this practice does not apply to requests for
amendments which must be supported by a majority.
—Requests
The
Senate sometimes requests the House
of Representatives to make amendments that the Senate is prevented by the
Constitution from making itself. Under section 53 of the Constitution, the Senate
may not amend:
Any
amendments proposed by the Senate to such bills must take the form of
requests.
In
addition, the Senate may not amend a bill “so as to increase any proposed
charge or burden on the people”. The
interpretation of this provision is not entirely settled. As it refers to “proposed laws” it cannot be
interpreted by the High Court.
Recently,
the Senate agreed to an order requiring any circulated requests to be
accompanied by a statement explaining why the amendments had been framed as
requests and a statement by the Clerk of the Senate on whether the amendments
would be regarded as requests under the precedents of the Senate. The former statement is prepared by the
Office of Parliamentary Counsel (the government drafters) for government
ministers’ requests and by the Clerk Assistant (Procedure) for non-government
senators’ requests.
Requests
may be made at any stage during
consideration of a bill. The third
reading of bills to which requests have been made is deferred until the House
of Representatives responds and the Senate accepts the House’s response.
—What happens when the Senate amends a bill?
When
the Senate amends a bill introduced in the House of Representatives, the Senate
returns the bill to the House with a list (or schedule) of the amendments it has made and asks the House to agree
to them. The House may accept or reject
the amendments, amend them or agree to substitute amendments. Unless the House accepts the amendments, the
bill is returned to the Senate seeking the Senate’s agreement to the action
taken by the House. The Senate may
agree, or insist on its original amendments or make substitute amendments. Areas of the bill that have been agreed to by
both Houses may not be revisited except to make amendments that are
consequential on the House’s rejection of the Senate’s amendments. These negotiations between the Houses (in the
form of messages) are dealt with in
committee of the whole to provide maximum procedural flexibility, and the same
process is followed with requests.
When
the Senate amends a bill introduced first in the Senate, the amendments are
incorporated into the bill which is reprinted before being sent to the House
for agreement. This is known as a third reading print and the cover of the
bill indicates that it is “as read a third time”. Any disagreements about amendments then made
by the House are handled in the manner described above.
When
both Houses have agreed to the bill in identical terms, perhaps after several
rounds of negotiations, the bill is assented to. If agreement cannot be reached, the bill may
be laid aside. For possible consequences
of failure to agree, see section 57 of the Constitution.
5. Common
questions about legislation
Q: When can the first reading of a bill be debated?
A: When the
bill is one which the Senate may not amend under section 53 of the
Constitution; that is, a bill imposing taxation or a bill appropriating money for
the ordinary annual services of government.
The relevance rule does not apply to the debate and any matters may be
canvassed. This opportunity is seldom
used because there are now so many other opportunities for senators to raise
general issues in the Senate (for example, through notices of motion, matters
of public interest, matters of public importance or urgency, the adjournment
debate or debate on relevant documents or reports).
Q: When does an Act take effect?
A: Most Acts
have a commencement provision which specifies when the Act will take
effect. The most common options for
commencement are:
-
on
assent;
-
on a
specified day or date;
-
immediately
after a specified event (such as the commencement of another Act);
-
on a date
to be fixed by Proclamation.
If an Act is silent about its commencement, the Acts Interpretation Act 1901 provides
that the Act comes into effect on the twenty-eighth day after it is assented
to. The Scrutiny of Bills Committee
keeps a close watch on Acts commencing on a date to be fixed by proclamation,
to safeguard against the intentions of the legislature being overridden by the
failure of the executive to advise the Governor-General about the proclamation
of Acts. Common practice is for such
provisions to be drafted to provide for a 6-month period after assent, after
which, if no proclamation is made, the Act is taken to have commenced (or to
have been repealed). If there is no such
provision, or if the period allowed is longer than 6 months without adequate
explanation, the Scrutiny of Bills Committee invariably seeks an explanation
from the relevant minister and reports on the matter to the Senate. The Government presents a report annually to
the Senate, listing Acts or parts of Acts which have not yet been proclaimed,
and giving reasons for non-proclamation.
Q: Where can I get electronic copies of bills etc?
A: By clicking on to Billsnet
you can get access to:
-
the text
of the bill;
-
the
explanatory memorandum;
-
second
reading speeches;
-
the text
of any circulated amendments;
-
the
schedule of amendments (a list of amendments agreed by one House for
consideration of the House in which the bill originated).
Paper copies may be
obtained from the Table Office.
Q: When will running sheets be available?
A: Running
sheets are prepared by the Senate Table Office only if complex amendments are
circulated by two or more senators. The
earlier that amendments are circulated, the more time the Table Office has to
draw up the running sheet.
Where
amendments are circulated at the last minute, the running sheet is prepared
progressively, with the first page or so sent into the chamber as soon as
possible and other pages following when available.
Running sheets do not take account of uncirculated
amendments even if they may have been provided to the Table Office under
embargo. However, as soon as new
amendments are circulated, the running sheet is revised accordingly and sent
into the chamber as soon as possible.
Running sheets are prepared solely for use in the chamber. They may change rapidly and are not published
on the Internet, although copies may be obtained from the Table Office or the
Chamber Attendants.
Q: Where can I find out more about
amendments, requests and section 53?
A: Odgers’
Australian Senate Practice, 11th edition, ed. Harry Evans, Chapter
13.
Procedure
Committee, First Report of 1996,
Parliamentary Paper 194/1996.
Need assistance??
Senate Table Office
on extensions 3010 or 3009 (for documents); Clerk Assistant (Table) on
extension 3020 (for assistance to Ministers); Clerk Assistant (Procedure) on
extension 3380 (for assistance to non-government senators).
February 2005
This publication is available electronically at http://www.aph.gov.au/senate/pubs/guides/index.htm
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