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Chapter 12 - Legislation
Reference to standing or select committee
An amendment to the motion for the
second reading may also be used to refer a bill to a standing or select
committee for inquiry and report. The amendment, if carried, usually has the
effect of referring a bill to a committee before the Senate has agreed to the
second reading of the bill. Such an amendment takes the form of leaving out all
words after “that” and inserting words such as “this bill be referred to the
standing committee on ... for inquiry into ... and report on ...”. This is an
indication that the Senate wishes the committee to consider the principle of
the bill as well as its details and any amendments. When the committee reports
on the bill and consideration of it is resumed, the second reading must be
moved again.
A second reading
amendment may, however, be framed so as to add words to the motion to give the
bill a second reading and then refer it to a committee (23/8/1995,
J.3667-8, 3670).
In earlier times
it was thought to be anomalous that a bill should be referred to a committee
before the second reading, on the ground that consideration in committee should
not occur until a bill is agreed to in principle. An amendment for this
purpose, however, was moved in 1959 (25/11/1959, J.225), and similar amendments have been moved frequently
since that time. It was also thought that a bill could not be referred to a
standing committee, as distinct from a select committee, by this method
(30/9/1971, J.709), but as a bill can be referred by motion on notice to a
standing committee before the second reading (28/9/1978, J.387), this
superfluous distinction was also not subsequently followed. Reference of a bill
to a committee may occur before the second reading is moved (17/10/1988, J.1019-21; reference of provisions before second reading: 30/10/1989, J.2177-8). Indeed, the Senate may make orders for the
prospective referral of bills to committees before their introduction (eg, 4, 6/5/1992,
J.2239, 2281), and for the referral of the provisions of a bill before its
introduction into either House (eg, č26/3/1997, J.1799-1800; 11/5/2000,
J.2702; 29/6/2000, J.2978; 25/6/2003,
J.1978 (See Supplement)).
A reference to
the Community Affairs Committee in 2006 required it to consider “legislative
responses” to a report on laws governing cloning and stem cell research. A
draft bill tabled in the Senate and a bill presented to the President, prepared
by two senators, were considered by the committee under this reference. (14/9/2006,
J.2706.)
In 2007
legislation was abandoned by the government following a reference of part of
the legislation to a committee and a recommendation by the committee that the
legislation not proceed until the missing part of it was introduced (report by
the Finance and Public Administration Committee on proposed access card, March
2007, PP 106/2007).
Bills reported
on by Senate committees before the bills are received by the Senate are often
amended by the government in the House of Representatives in response to the
committees’ reports.
For the
reference of exposure drafts of government bills (wheat marketing bills) to a
committee, see 12/3/2008, J.209. (see Supplement)
A second reading
amendment may be used to refer to a committee matters related to a bill, while
allowing the bill to proceed (21/12/1988, J.1359).
In 1995 the
government introduced two bills by leave without the normal notice and then
moved by leave to have the bills immediately referred to a committee
(31/1/1995, J.2799-2800).
After a bill has
been read a second time, a motion may be moved without notice to refer the bill
to a standing or select committee (SO 115(2)).
This is the major opportunity for the
Senate to refer legislation for intensive examination to a committee. That the
motion may be moved without notice is an indication that scrutiny by a
committee is regarded as a normal part of the process of passing legislation.
Reference of a
bill to a committee after the second reading means that the Senate has agreed
to a bill in principle, and is an indication that the committee is expected to
examine the details of the bill. In the absence of any specific instructions
from the Senate as to how the committee is to examine the bill, however, a
committee is free to deal with a bill in any way it considers appropriate. It
may, for example, consider the principle of the bill in relation to alternative
methods of achieving the same purpose, and hear evidence in relation to the
policy of the bill.
A motion or amendment, other than a
second reading amendment, to refer a bill to a committee is subject to a
speaking time limit of 5 minutes per speaker and a total time limit of 30
minutes (SO 115(6)). These limitations are
interpreted as applying only to a simple referral of a bill to a committee, and
not to a motion or amendment which refers provisions or parts of bills, or
amendments to bills, or which contain any terms of reference. This is in
accordance with the intention of the limitations, which was to ensure that
motions to refer only bills to committees do not have any debating time
advantage over motions to adopt reports of the Selection of Bills Committee.
The Senate may give specific instructions
to a committee to which a bill is referred. These
instructions may be incorporated into the motion referring the bill to the
committee, which may, for example, direct the committee as to the particular
aspects of the bill it is to examine and the particular sources of information
it is to employ. Matters other than those provided for by the bill may also be
referred to the committee (ruling of Deputy
President Nicholls, upheld by the Senate, 21/6/1950,
J.92-3; see also 19/3/1987, J.1704-5; 9/12/1987,
J.390; 10/12/1992, J.3289).
The Senate may refer the clauses or
provisions of a bill to a committee rather than the bill itself (8/4/1974,
J.92; 30/10/1974, J.307; 31/3/1977,
J.69; 25/6/1992, J.2639-40). This is usually done so
that a bill may be proceeded with by the Senate while a committee considers
particular provisions, or so that a committee can consider provisions of a bill
yet to be received by the Senate (see below for the circumstances in which
referral of provisions of a bill is taken to be the equivalent of referral of
the bill).
The Senate may
also refer different parts of bills to different committees (28/9/1978,
J.387-88; ruling of President Sibraa, 11/10/1990, J.322-3; 26/11/1990, J.476). Different aspects of the same
bills may be referred to different committees, including a combination of
select and standing committees (New Tax System bills, 24, 25/11/1998, J.143-50,
166). For a reference of proposed amendments to a bill to a select committee,
see 25/11/2003, J.2708-9. For a reference to a Senate committee of
proposed government amendments to be moved in the House of Representatives to
bills not before the Senate, see 26/6/2002, J.488. For the establishment of a
select committee to consider a bill when amendments were the subject of
disagreement between the Houses and under consideration in committee of the
whole, see 28/11/1994, J.2542-44.
Clauses of bills may be omitted in
committee of the whole with a view to referring them to a committee
subsequently (28/5/1986, J.1019; 7/10/1987,
J.146; 8/12/1987, J.372; 9/12/1987,
J.376‑7; 25/6/1992, J.2640).
Having referred
a bill to a committee, the Senate can withdraw the referral (23/3/1999,
J.595).
It is normal for a motion referring a
bill to a committee to specify a day by which the committee is to report, so
that the Senate maintains control of the progress of the bill and knows when it
may return to the bill.
When a bill is
returned from a standing committee it may be proceeded with at once if a
reporting date has been fixed for the committee, but if there is no fixed
reporting day the sitting day after the report is presented is the first day
for proceeding with the bill (SO 115(3)). This provision ensures that
senators know when the bill is likely to be considered again.
When a bill is referred to a committee at
any stage, standing order 115(3) operates and the bill may not be
further considered until the committee has reported. When the provisions of a
bill are referred to a committee before the bill is received by the Senate and
the bill is received subsequent to the referral, the further consideration of
the bill after its introduction is an order of the day for future consideration
in accordance with standing order 115(3), unless the Senate explicitly
otherwise provides. The rationale of this is that in this circumstance the
Senate refers the provisions of a bill to a committee as an alternative to
referring the bill when it is received so that the committee can commence its
inquiry before the bill is received. When provisions of a bill or particular
parts of a bill are referred to a committee after the bill has been received by
the Senate, standing order 115(3) does not operate and the bill may
be proceeded with by the Senate before the committee reports, unless the Senate
explicitly otherwise provides. The rationale of this is that referral of
provisions of a bill occurs after the bill is received only with the intention
that a committee may inquire into the operation of the bill without delaying
proceedings on the bill in the Senate, and the referral of part of a bill to a
committee does not prevent the Senate proceeding with other parts of the bill
(in that circumstance, it is for the Senate to determine whether it will omit from
the bill the parts referred to a committee).
Appropriation bills, however, provide a
special case: the referral to legislation committees of estimates under
standing order 26 does not prevent the Senate proceeding
with bills containing those estimates, although it does not usually do so. (See
Chapter 13, Financial Legislation, under Scrutiny of expenditure proposals:
Estimates/Legislation Committees.)
The practice is
to allow a bill subject to standing order 115(3) to be taken to the stage of
the second reading being moved, on the basis that this is normally the first
substantive stage of the bill, although on a strict interpretation of the procedure
further consideration of the message after receipt should probably be
automatically deferred. After the second reading is moved, consideration of the
bill is automatically deferred until the committee reports, and the bill is so
listed on the Notice Paper.
When a bill is
referred to a committee with a fixed reporting date, and the committee reports
early, the bill cannot be proceeded with until the due date, except by leave or
a suspension of the standing order (New Business Tax System (Consolidation and
other Measures) Bill (No. 1) 2002, 18/11/2002, J.1131; Telstra (Transition
to Full Private Ownership) Bill 2003, 27/10/2003, J.2622).(See Supplement)
If a committee
to which a bill has been referred, or to which the provisions of a bill have
been referred before the receipt of the bill by the Senate, presents an interim report on the bill, and the
final report is not presented before the due reporting date, the bill remains
listed on the Notice Paper as a reference to the committee, and, if the bill is
before the Senate, as a bill for consideration at a future time (namely, when
the committee presents its final report), until the Senate determines a motion
to grant the committee an extension of time to report. The rationale of this is
that there is a presumption in favour of the committee that the bill will not
be proceeded with until the final report is presented, unless the Senate, by
rejecting a motion for an extension of time to report, makes a deliberate
decision to allow the bill to proceed without waiting for the final report.
The consideration of bills by standing or
select committees allows more effective scrutiny of legislative proposals than
is possible in the whole Senate. Committees may directly question ministers and
officials responsible for framing bills, and hear evidence from organisations
and persons who have an interest in legislation or who are likely to be
affected by it. Apart from providing committees and the Senate with better
means of understanding and evaluating proposed legislation, this opens the
legislative process to public participation and allows the views of the public
to be heard directly in the parliamentary forum.
Exposing bills
to this heightened scrutiny makes for better legislation. Amendments to make
improvements to bills are more likely to emerge from the process. If the
framers of legislation know that it is to be subjected to this kind of
scrutiny, and to the critical examination of those likely to be affected by it,
they are likely to give more care and attention to their proposals, in
anticipation of explaining them to Senate committees.
Committees are
also able to combine greater scrutiny of bills with a more economical use of
parliamentary time, because several committees may consider a number of bills
simultaneously.
It is not the
practice of the Senate to delegate to committees the power to amend bills, but
they may recommend amendments, which may then be considered by the Senate. That
consideration is apt to be expedited by the work of committees.
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