No. 5 - Suspension of Standing Orders
The Senate normally
conducts its business in accordance with standing orders. These are procedural rules to facilitate the
orderly conduct of business and protect the rights of individual senators. They are made by the Senate under the
authority of section 50 of the Constitution.
At any time the
Senate may decide to vary the way it does business, perhaps by making temporary
changes to the standing orders or by overriding or adding to them for a
particular purpose. These variations are
made by a decision (or resolution) of the Senate following a motion (or
proposal). Motions usually require
notice (see Brief Guide No. 2—Notices of Motion).
On occasion, however,
the Senate may decide that there is an urgent need to override the standing
orders to take action that the standing orders would otherwise prevent. In these circumstances, there are two ways in
which the Senate dispenses with its normal rules in order to take a different
course of action:
What is leave?
Leave is the
unanimous consent of all senators present in the chamber and is determined by
the chair after he or she ascertains whether there is any objection to a
particular course of action being followed.
Major and minor departures from the standing orders may occur with
leave, provided that there is unanimous consent.
In what circumstances are standing orders suspended?
When leave is either
unlikely or refused, a senator may move for standing orders to be suspended to
enable a course of action to be followed.
This requires the agreement of a majority of the Senate (standing order 209). If such a motion is moved without notice, it requires the
agreement of an absolute majority of the whole Senate (39 senators). With
notice, it requires only a simple majority (a majority of senators voting).
A motion to suspend
standing orders is often connected with the need to rearrange the Senate’s
business, including for the purpose of initiating a completely new item of
business. Although a minister may move a
motion without notice at any time in connection with the conduct of business (standing
order 56),
other senators may not. In some cases, a
suspension of standing orders may be designed to give other senators the same
powers as ministers to rearrange business.
But not even a minister may initiate completely new business without
notice, so ministers may sometimes move for the suspension of standing orders
to achieve this.
If a motion to
suspend standing orders is moved during the consideration of a matter,
including in committee of the whole, it must be relevant to the matter. For example, if the Senate is considering a
bill, a senator may not move to suspend standing orders to bring on another
item, unless the debate on the bill is first concluded or adjourned.
Because, given its
current composition, it is difficult to obtain the agreement of an absolute
majority of the Senate, most motions to suspend standing orders are moved by a
special type of notice called a contingent
notice, which means they can be agreed to by a more easily achievable
simple majority.
Contingent notices
A contingent notice
is a notice that a particular motion will be moved when a certain event happens
or a certain stage in the proceedings is reached. Contingent notices may be framed in general
or specific terms.
An example of a general contingent notice is one that
all non-government party leaders and independent senators have on the Notice Paper to enable them to suspend
standing orders to rearrange the order of business before the Senate:
To
move (contingent on the Senate on any day concluding its consideration of any
item of business and prior to the Senate proceeding to the consideration of
another item of business)—That so much of the standing orders be suspended as
would prevent the senator moving a motion relating to the conduct of the
business of the Senate.
This is commonly used
when a senator is refused formality for a General Business notice of motion
(see Brief Guide No. 2—Notices of Motion) and
wishes to initiate an immediate debate on the motion.
Three steps are
involved in using this kind of contingent notice.
The first step is for
the senator to move the motion to suspend standing orders in the terms in which
it appears in the Notice Paper under
“Contingent Notices of Motion”. This
motion may be debated for up to 30 minutes with each speaker allowed up to 5
minutes. As it is a procedural motion,
the mover does not have a right of reply (see Brief Guide No. 4—Rules of Debate).
If step one is agreed
to, the second step is to move the motion for which the suspension has been
sought; that is, a motion relating to the conduct of the Senate’s
business:
That
a motion to .... may be moved immediately and have precedence over all other business
this day till determined.
Although this motion
may be debated, it is rarely spoken to as it is simply a means to the desired
end which is to enable a senator to move a particular motion. If step two is agreed to, the final step is
the moving of the substantive motion.
It has been ruled
that a contingent notice of this type may be used only once by any senator on
any one occasion (see Odgers’ Australian Senate
Practice, 11th edition, page 169 for further details).
An example of a specific contingent notice is as
follows:
To
move (contingent on the President presenting a report of the Auditor-General on
any day or notifying the Senate that such a report had been presented under standing
order 166)—That so much of the standing orders be suspended as would prevent
Senator [name of senator] moving a motion to take note of the report and any
senator speaking to it for not more than 10 minutes, with the total time for
the debate not to exceed 60 minutes.
In this case, the
substantive motion is built into the terms of the suspension and no
intermediate step is necessary. Step one
is to move the motion as it appears in the Notice
Paper. If this is agreed to, the
effect is that the senator may then move the substantive motion to take note of
the report. Time limits have already
been agreed to because they are built into the terms of the suspension.
Contingent notices
remain on the Notice Paper and are
thus available for use unless they are withdrawn by the senator who gave them
or unless they are “spent”. A contingent
notice is spent (of no further use) if the contingency, or event on which it
depends, has passed.
The Notice Paper currently includes a range
of contingent notices, enabling senators to move for the suspension of standing
orders in the following circumstances:
-
between items of business—to
rearrange business or to provide for a completely new item of business
(such as a censure motion, for example);
-
on presentation of an
Auditor-General’s report—to enable a motion to be moved to take note of
the report and for the debate to continue for up to an hour;
-
at consideration of government
documents on Tuesdays and Wednesdays at 6.50 pm—to rearrange the order in
which the documents will be called on;
-
when a minister moves that a bill
is urgent under standing order 142 (the
“guillotine”)—to provide for that motion to be debated;
-
when a minister moves a motion to
allot time for an urgent bill—to provide for an unlimited debate on that
motion;
-
when the time allotted to an
urgent bill expires—to provide for the time to be extended;
-
when a motion to debate a matter
of urgency under standing order 75 is moved—to enable
an amendment to be moved to the motion;
-
at placing of business—to
rearrange the order of business on the Notice
Paper;
-
on any senator being refused leave
to make a statement—to enable the senator to make the statement;
-
on any senator being refused leave
to table a document—to move that the document be tabled;
-
at the end of Question Time—to
move that Question Time be extended until 28 questions have been asked and
answered.
Using these notices,
and with the agreement of a simple majority, senators may in urgent cases move
for the suspension of standing orders to do a range of things that they would
otherwise be prevented by the standing orders from doing.
What is the effect of suspending standing orders?
Standing orders may
be suspended only for the particular purpose mentioned in the motion (standing order 210). So, for example, if a senator who is refused
formality for a General Business notice of motion successfully follows the
3-step process referred to above, the only standing orders which are suspended
are those which would prevent the motion being moved. All other standing orders, such as those
relating to the rules of debate (see Brief Guide No. 4—Rules of Debate),
continue to apply.
A suspension of
standing orders lasts for the period specified in the relevant motion. In a rearrangement motion, for example, moved
after a suspension of standing orders has been agreed to, the item of business
to be given precedence is usually given precedence over all other business that day until determined (voted
on). If that item is not resolved by the
end of that day, then it has no special precedence on the following day unless
a new suspension is agreed to. The
timing of a suspension motion of this type affects what business is actually
displaced. See Odgers’ Australian Senate Practice, 11th edition,
page 170 for further
details. Precedence may also last over a
period of days. On one occasion, a
private senator’s bill was given precedence over Government Business until
proceedings on the bill were concluded.
The effect of this was that over several days the bill was considered
when the Senate would otherwise have been considering Government Business.
Need assistance?
For assistance with
any of the matters covered by this guide, government senators or their staff
should contact the Clerk Assistant (Table), on extension 3020; and
non-government senators or their staff should contact the Clerk Assistant
(Procedure), on extension 3380.
February 2005
This publication is available electronically at http://www.aph.gov.au/senate/pubs/guides/index.htm
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