Chapter 12 - Legislation
Procedures for regular referral to committees
The Selection of Bills Committee
considers all bills before the Senate and makes recommendations about which
bills should be referred to committees (SO 24A). The committee does not make
decisions on its own estimation, but takes note of the general view among
senators as to which bills should be referred.
A procedure for
referring bills by adoption of reports from the Selection of Bills Committee is
provided. Such a motion may be moved immediately upon the presentation of the
report of the committee, and may be amended to refer to a standing or select
committee any bill not recommended for referral in the report or otherwise
alter the committee’s recommendation. A time limit of five minutes per speaker
and 30 minutes in total is imposed on debate on the motion, but any amendment a
senator wishes to move must be put and determined. Similar time limits apply to
other methods of referring bills (see above). The mover of the motion may speak in
reply, if time permits.
Referral of
bills may take place at any stage, but most bills are referred after the second
reading, that is, after the Senate has approved the bill in principle. (see Supplement)
Bills are
usually referred to the appropriate legislative and general purpose standing
committees, but the procedures also allow for referral to ad hoc select
committees.
The procedures do not contain any instructions as to how the committees are
to deal with bills referred to them. The committees may determine the
appropriate method of dealing with particular bills. The committees have
available to them all the committee techniques, including taking evidence from
members of the public. Some bills require only minimal examination, perhaps
clarification of some technical points with responsible ministers and
departmental officials; others merit “full treatment”, including advertising
for submissions and public hearings; and some bills require some intermediate
treatment, for example, the taking of limited evidence from interested bodies.
The committees may not amend bills, but may recommend amendments. For a
reference arising from a Selection of Bills Committee report requiring a
committee to report on a bill on the next day, see 6/12/2004,
J.215; 7/12/2004, J.246.
The procedures
also leave unrestricted the treatment which the Senate may accord a bill when
it returns from a committee. A bill which has been thoroughly examined in a
committee may nevertheless be examined in detail again in committee of the
whole. Particularly complex bills inevitably attract further detailed
consideration and further amendment in committee of the whole. This has
happened with many complex bills referred to committees.
A fast method of processing bills
returned from committees is provided, however, by means of a motion for the
adoption of a committee’s report, thereby adopting any amendments recommended by the committee.
This motion may not be moved if a senator has circulated other amendments. In
that case the bill proceeds in the normal way. This provision safeguards the
right of senators to move amendments (SO 115(5)).
About 35 percent
of all bills passed by the Senate are referred to committees under these procedures.
Amendments of the motion to adopt the committee’s reports are
reasonably common. Separate motions modifying previous orders adopting reports
of the committee have frequently been passed; proposed amendments to bills,
regulations and draft regulations have been referred to committees in
conjunction with bills (27/11/2003, J.2747). The motion to adopt a report on a bill
has been less frequently used, mainly because modifications of the committee’s
recommendations lead to complexity. The following precedents, however, are of
interest: motion to adopt standing committee report, modification of
recommended amendments, further amendments (12/11/1990, J.422); motion to adopt
standing committee report, bill not referred on Selection of Bills Committee
report (4/6/1991, J.1100); motion to adopt standing committee report, amendment
of motion to amend bill (4/6/1991, J.1111; 6/6/1991, J.1155).
Before the
adoption of these procedures in 1989 the Senate referred bills to committees on
an ad hoc basis, and depended upon an assessment by the majority of the
Senate that particular bills required examination in a committee. Many of the
bills referred were those which involved significant innovations and on which
there were diverse opinions. The consideration of such bills by committees
almost invariably led to substantial changes to the bills, which is not
surprising, because the bills referred were those most likely to be amended,
but the process of amendment was greatly facilitated by consideration in
committees. This led to a general view in the Senate that examination of bills
by committees is a productive and worthwhile process resulting in much-improved
legislation. There were therefore suggestions over many years to devise
procedures for more regular referral of bills to committees.
Those suggestions led to the
establishment in 1988 of a Select Committee on Legislation Procedures. This
committee reported at the end of 1988 (PP 398/1988). It unanimously recommended
that more bills be referred to committees and that procedures be established
for that purpose. The report of the committee pointed out, amongst other
things, that the Houses of the Commonwealth Parliament pass many more bills
than their counterparts abroad, but sit many fewer days per year, suggesting
that legislating in Australia is an over-hasty process. The select
committee, however, offered the prospect of achieving two seemingly
contradictory aims: speedier but more thorough examination of legislation by
the simultaneous consideration of a number of bills in committees. It was also
envisaged that in scrutinising legislation the standing committees would
supplement, and follow up, matters raised by the Scrutiny of Bills Committee
(see Chapter 16, Committees, under Scrutiny of Bills Committee).
The report of
the select committee was adopted on 5 December 1989, the procedures operating as sessional
orders from August 1990. The procedures were debated in the Senate on
11 September and 9, 10 and 11 October
1990, and during the debate
it was alleged that the government was attempting to curtail the procedures. A
motion to terminate the procedures at the end of June 1991 was rejected by the
Senate on 13 February
1991. The procedures were
renewed as sessional orders until they were incorporated into the standing
orders in February 1997.
The Select
Committee on Legislation Procedures also made recommendations, which were
adopted but subsequently modified by the Senate, concerning the consideration
of proposed expenditure by committees and the procedures applying to
appropriation bills. These matters are referred to in Chapter 13, Financial
Legislation.
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