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Chapter 11 - Voting
and divisions
Special majorities
The procedures of the Senate provide for special majorities for two
kinds of procedural motions. A motion to
rescind an order of the Senate (SO 87) and a motion
for the suspension of
standing orders moved without notice (SO 209) require an
absolute majority to be carried. In the past the standing orders provided for
special majorities for other questions.
Since the standing orders were adopted in 1903 the question has been
raised whether any provision for a special majority in the standing orders is
unconstitutional. Such a provision may be contrary to section 23 of the
Constitution, which strongly implies that all questions in the Senate must be
determined by the simple majority prescribed by the section. Against this
seemingly conclusive argument that any provision for a special majority is
contrary to section 23, it has been argued that it is open to the Senate,
having regard to section 50 of the
Constitution, which provides for the Senate to make rules and orders for the
conduct of its proceedings, to determine that particular questions should be
determined by a special majority. This argument may have greater force in
relation to procedural as distinct from substantive questions. (See remarks by
Chairman of Committees Best, SD, 17/6/1903, p. 980; joint opinion of the
Attorney-General and Solicitor-General, SD, 20/5/1969, pp 1384-5.)
In 1968-69 a majority of the Senate, in effect, accepted the argument
that requirements for special majorities are unconstitutional, and overturned
the provisions in the standing orders for special majorities. Rulings by the
President that motions to suspend standing orders without notice require an
absolute majority were dissented from by the majority of the Senate, in
accordance with standing order 198. The relevant
standing orders, however, were not changed, and were subsequently adhered to
and enforced (ruling of President Laucke, 17/9/1980, J.1549; of President Young, 22/9/1982, J.1096-7). It has
since been accepted by the Senate that those standing orders are in force. In
relation to the requirement for an absolute majority for the suspension of
standing orders, senators have used contingent notices
of motion in order to
circumvent that requirement (see Chapter 8, Conduct of Proceedings, under
Suspension of standing orders).
For a more detailed account of the controversy over section 23 of the
Constitution and special majorities, see ASP, 6th ed., pp
393-9.
No account is taken
of any vacancy in the Senate in
determining whether there is an absolute majority. In other words, an absolute
majority remains a majority of the whole number of senators, 39 out of 76
senators, although there may be only 75 or fewer senators actually in office
(ruling of President Givens, SD, 27/6/1924, p. 1670).
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