Chapter 1 - The
Senate and its constitutional role
Rules and orders
Section 50 of the
Constitution authorises the Senate to make rules and orders with respect to the
mode in which its powers, privileges, and immunities may be exercised and
upheld, and the order and conduct of its business and proceedings. Standing
orders and other rules made by the Senate embody procedures designed to ensure
that parliamentary business, especially legislation, is conducted in an
orderly, open and predictable manner devoid of surprise, haste or sleight of
hand.
On 6 June 1901 the Senate adopted temporary standing orders which
were, with some exceptions, the standing orders of the House of Assembly of
South Australia. The reasons for the adoption of those particular standing
orders were that the President of the Senate, a South Australian, was familiar
with them; and that, having been used to general satisfaction by the convention
which drafted the Constitution, more senators were acquainted with them than
any other standing orders. The temporary standing orders remained in force
until 1903. On 1 September of that year the permanent standing orders came
into force. They were replaced by new standing orders adopted on 21 November 1989.
The standing orders of 1903 were intended, amongst other things, to
embody the meaning and spirit of the Constitution concerning procedure and the
relationship between the two Houses; to encompass what had been the universal
practice in state parliaments, so that the standing orders were, as far as
possible, a complete code of practice; to simplify procedure, including by
abolition of procedures and practices (based on obsolete conditions) which had
no effect or significance; and to provide standing orders identical to those of
the House of Representatives, except in those cases where difference could not
be avoided (Report of Standing Orders Committee, PP L7/1901). The 1989 standing
orders updated and consolidated those of 1903 to accord with current
procedures.
Broadly speaking, the standing orders were framed for the purpose of
enabling the Senate to be master of its own procedure, but recognising the
fundamental parliamentary rule that there should be safeguards against surprise
and haste.
In interpreting the
standing orders, a cardinal rule is that each standing order must be read in
conjunction with the others (ruling of President Givens, SD, 11/6/1914, p. 2002). The practice of the Senate is that where
there may be doubt with respect to the interpretation of a rule or order, the
chair leans towards a ruling which preserves or strengthens the powers of the
Senate and the rights of senators, rather than towards a view which may weaken
or reduce the Senate’s powers or senators’ rights.
Except so far as is expressly provided, the standing orders do not in
any way restrict the mode in which the Senate may exercise and uphold its
powers, privileges, and immunities (SO 208). This
provision saves for the Senate all powers, privileges, and immunities conferred
on it by the Constitution. Where there is a clear direction in the Constitution
as to the powers of the Senate, that direction overrides any standing order or
practice of the Parliament (ruling of President Givens, SD, 15/7/1921, p. 10148-9).
When the standing orders were considered by the Senate, a motion was
made to insert the following provision:
In all cases not provided for
hereinafter, or by Sessional or other Orders, resort shall be had to the rules,
forms and practice of the Commons House of the Imperial Parliament of Great
Britain and Ireland in force on 1 January 1901,
which shall be followed as far as they can be applied to the proceedings of the
Senate.
Although this rule had been included in the temporary standing orders
adopted by the Senate in 1901, and a similar standing order was adopted by the
House of Representatives, the Senate rejected the proposed new standing order
by 18 votes to 5. It was rightly contended that the Senate, working under a new
Constitution, ought to have its own practice and procedure.
The Senate’s first President, Senator Richard Baker, explained the
Senate’s decision thus: “The avowed intention of the Senate in omitting the
Standing Order was that in cases not positively and specifically provided for
we should gradually build up ‘rules, forms, and practices’ of our own, suited
to our own conditions”. (PP S1/1904, p. 1).
The Senate’s
decision to omit the standing order necessarily meant that succeeding
Presidents have found it necessary to give many rulings, not only in connection
with interpretation of the standing orders, but in those instances where the
standing orders are silent. As it is, the Senate has for its guidance the
practice of other houses without the bondage of following procedure which may
be unsuited to Australian conditions.
A President’s ruling which has not been dissented from by the Senate is
equivalent to a resolution of the Senate (ruling of President Baker, SD, 4/10/1906, pp 6089-90;
rulings of President Gould, SD, 9/8/1907, pp 1690-1; 18/10/1907, p. 4909).
The Senate may at
any time amend its standing orders, and the current standing orders have been
amended, or added to, on many occasions since their adoption in 1989.
Any senator may submit to the Senate a substantive motion for the alteration
of any standing order, or for the adoption of new standing orders. Such motion
requires notice in the ordinary way. The motion being agreed to, the standing
orders would be amended accordingly. The more usual practice, however, and one
which makes use of the expertise of the Procedure Committee (before 1987 called the Standing
Orders Committee), is to submit proposals to amend the standing orders to that
committee, with a request to report on the proposals. Other committees often
make recommendations for references of matters to the Procedure
Committee. Alternatively, the committee may on its own initiative present a
report recommending amendments to the standing orders, without a prior
reference from the Senate.
A report from the Procedure Committee is usually considered, sometimes in
committee of the whole, on a subsequent day. The advantages of consideration in
committee of the whole are that each recommendation of the Procedure
Committee may be considered seriatim and senators are able to speak to
each question more than once until full understanding and agreement are reached
(for procedure in committee of the whole, see Chapter 14). The committee of the
whole may make amendments to the recommendations of the Procedure
Committee. The resolutions of the committee of the whole are subject to adoption
by the Senate. A report from the Procedure Committee may be considered by the Senate,
rather than in committee of the whole. Upon the order of the day being read for
the consideration of the report, motions may then be moved to adopt
recommendations of the committee. The Senate may make modifications to the
recommendations of the Procedure Committee.
On the Senate agreeing to amendments to the standing orders, a motion
is sometimes moved that the amended standing orders come into force on some
future date. The merit of this practice is that senators have an opportunity of
considering their effect. In the absence of such a motion, the new standing
orders come into force immediately upon their adoption by the Senate.
In 1975 the
Senate resolved that certain proposed amendments to the standing orders would
operate initially as sessional orders and, unless otherwise ordered, that they
would become amendments to the standing orders at the end of six months (11/2/1975,
J.499, 860).
Sessional orders are orders which have effect only for a session of
Parliament. They are used when the Senate wishes to try out new procedures on a
temporary basis or otherwise wishes to make orders of limited duration.
The standing orders contain provisions allowing the suspension of the
standing orders and other rules of the Senate where necessary to achieve
particular purposes, subject to certain procedural safeguards (see Chapter 8,
Conduct of Proceedings, under Suspension of standing orders). These provisions
illustrate the way in which the Senate’s rules seek to allow the majority of
the Senate to act expeditiously to achieve its ends while ensuring that the
rights of minorities are not put aside, even temporarily, without due
deliberation.
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