Speaker’s rulings
A ruling is a decision or determination made by the Chair on a matter to do with the business or operation of the House. Usually a ruling will be given in response to a point of order (see below), when a Member queries or challenges in some way an aspect of proceedings or debate. In some circumstances, however, a ruling may be given without a point of order having been taken—for example, a Member may propose to move a motion or an amendment, and the Chair may intervene immediately of his or her own volition and rule the proposed motion or amendment out of order. The Speaker must preserve order in the Chamber to enable business to be conducted properly. In order to do this the Speaker must rule fairly on points of order and be very familiar with the standing orders and the practices of the House. The Speaker’s statements and rulings must be sufficiently clear and authoritative for Members to accept them.
The question sometimes arises as to whether rulings are ‘binding’ and, in a literal sense, the answer is ‘no’, but the question is more complex than it may appear. There have been many rulings given over the years which are consistent with one another, consistent with the standing orders and conventions of the House, and which are supported, implicitly or explicitly, by the House. Such rulings form part of the body of practice which continues to govern the operations of the House and rulings with that status are, in effect, regarded as binding, although even then Speakers are able to give rulings which take account of new factors or considerations. In this way rulings and interpretations may be developed and adapted over time. From time to time rulings may be given which are inconsistent with previous rulings and interpretations, and which may be made in circumstances which do not allow sufficient opportunity for reflection. Even though such rulings may go unchallenged at the time, it would be incorrect to say that they are binding on future occupants of the Chair.
The Speaker has stated that House of Representatives Practice is the authoritative source of precedent.
The situation in the House of Representatives is in contrast with that in the United Kingdom House of Commons, where many rulings are given after the Speaker has been forewarned of the subject by a Member who may advise that he or she will take a point of order on it, and the Speaker thus has an opportunity to take account of any relevant precedents and of all the considerations involved. The situation is also different in the Senate where a President’s ruling which has not been dissented from is considered to have a standing equivalent to a resolution of the Senate.
The Speaker may also make private rulings, that is, when not in the Chair. Such rulings may not be related to the actual proceedings in the House. This may occur for instance when a Member seeks the Speaker’s guidance on a point of procedure relating to future proceedings in the House. Private rulings in effect serve to clarify points of practice and procedure and have the same authority as rulings from the Chair and may be supplemented by rulings from the Chair.
Points of order
The principal standing orders relating to points of order and Speaker’s rulings are standing orders 86 and 87 which state that:
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a Member may raise a point of order with the Speaker at any time;
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the matter takes precedence until it is disposed of by the Speaker giving a ruling on it;
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if a Member wishes to dissent from a ruling, the dissent must be declared at once. A motion of dissent, which must be submitted in writing, shall, if seconded, be proposed to the House and may be debated immediately.
House practice is that a point of order must be raised immediately. It is not acceptable to raise points of order concerning proceedings earlier in the day or concerning proceedings of a previous day.
A Member has a right to make his or her point of order without interruption except by the Chair. However, there may be circumstances when a point of order on a point of order may be justified—for example, when points of order which are inordinately long, frivolous or of dubious validity or when unparliamentary language is used. It would be expected that the Chair would normally intervene in these cases but a point of order on the point of order could be made. On occasion the Chair may hear further points of order before ruling, or grant other Members indulgence to speak to clarify a situation. However, there is no obligation on the Chair to exercise such discretion. The Chair may rule on a point of order as soon as he or she feels in a position to do so.
The opportunity to raise a point of order should not be misused to deliberately disrupt proceedings or to respond to debate. If perceiving this to be the case, Speakers have cut short the point of order until the Member interrupted by the point of order has finished speaking, or refused to hear it. Speakers have also cut short a point of order when they believe they are aware of the issue being raised.
The Speaker may make his or her decision on a point of order clear by directing the Member who has raised it to resume his or her seat and/or returning the call to the Member who had been speaking. The Chair has refused to hear a point of order while a Minister was moving a motion. Members have been disciplined by the Chair for raising spurious or frivolous points of order, for introducing debate when raising a point of order, and for persisting with matters after the Chair has ruled.
Dissent from rulings
Standing order 87 provides that, if a Member dissents from a ruling of the Speaker, the objection or dissent must be declared at once. A Member moving a motion of dissent must submit the motion in writing. If the motion is seconded, the Speaker shall then propose the question to the House, and debate may proceed immediately. Time limits for the debate are: whole debate 30 minutes; mover 10 minutes; seconder 5 minutes; Member next speaking 10 minutes; any other Member 5 minutes. A dissent motion may be moved in the Federation Chamber (see Chapter on ‘The Federation Chamber’).
Any motion of dissent must be moved at the time the ruling is made, and no amendment may be moved to the motion as a ruling must be either accepted without qualification or rejected. A Member cannot move dissent from a ruling which has just been supported by a vote of the House. Conversely, once a dissent from the Speaker’s ruling has been carried then the Chair cannot repeat the ruling until the House reverses its decision on the ruling.
A dissent motion has lapsed for want of a seconder, and a dissent motion has been withdrawn by leave. A proposed dissent motion has been ruled out of order when it referred to a matter that had happened two days before. The Speaker has refused to accept a motion that a Member be heard and the Member has then attempted to move dissent, but the Speaker stated that there was nothing to dissent from. When two proposed matters of public importance have been submitted and the Speaker has selected one, it has been held that a motion of dissent was out of order as no ruling had been given. It is not in order to move dissent in relation to the allocation of the call, which is a matter for the Chair’s discretion. A motion of dissent may not be moved in respect of a direction that a Member leave the Chamber. The Speaker has not accepted a motion of dissent when the question before the Chair was that ‘the question be now put’, as standing order 81 obliges the Chair to put that question immediately without amendment or debate. The Speaker has declined to accept a motion that a Member moving a motion of dissent be not further heard, but on other occasions such motions have been accepted and agreed to. In speaking to a motion of dissent a Member may not make a personal reflection on the Speaker.
There have been several occasions when the House has agreed to a motion dissenting from the Speaker’s ruling. Any dissent from the Speaker’s ruling is not necessarily interpreted as a censure of the Speaker.
In 1931 a motion of dissent was moved against a ruling given by Speaker Makin. During the debate on the motion, which was subsequently negatived, Speaker Makin participated and stated:
It has been the invariable rule, when a motion has been submitted inviting the House to disagree with Mr Speaker’s ruling, for the Speaker to reply from the Chair … I shall make my statement from the Chair …
However, it has become the established practice for the Chair not to participate during debate on a motion of dissent from a ruling except, for instance, to explain or clarify a procedural matter, as the question is in the hands of the House and for it to decide.
In 1962 a Member moved dissent from a ruling by the Deputy Speaker. The Speaker took the Chair and in the division on the motion of dissent the Deputy Speaker voted against the dissent, which was negatived. The Speaker ruled that it was in order for the Deputy Speaker to vote in the division. On another occasion, having been relieved in the Chair by the Speaker, a member of the Speaker’s panel whose ruling had been subject to dissent voted in favour of the dissent.
Table 6.1 Motions of dissent from rulings
|
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Moved
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Negatived
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Agreed to
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Withdrawn, lapsed, etc.
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Speaker
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133
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106
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6
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21
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Acting Speaker
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12
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10
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–
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2
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|
Deputy Speaker
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45
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37
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1
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7
|
|
Total
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190
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153
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7
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30
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To end December 2017
Table does not include dissent motions ruled out of order, or dissent in the Federation Chamber or former committee of the whole.
The practice of dissenting from a Speaker’s ruling is not shared by the lower Houses of other major Westminster-style Parliaments, namely, the United Kingdom, Canada and India. Before the dissent provision was abolished in the Canadian House of Commons, Laundy stated:
In practice, the rule tends to encourage Members to challenge Speakers’ rulings, and when carried to extreme lengths … its use can seriously undermine the authority of the Chair and lead to a serious disruption of business. It is also open to criticism on the ground that a Speaker, in order to avoid the damage to his prestige and authority which the rejection of one of his rulings by the House would inevitably involve, might tend to rule as a matter of course in favour of the majority in order to ensure that his rulings will be sustained. Thus, whatever advantages may be claimed for such a rule, there can be no question that its disadvantages are of a very serious nature indeed.
In 1986 the Procedure Committee recommended that the House should abolish the dissent procedure, but the recommendation was not adopted.
Interpretation of the Constitution or the law
Speakers have generally taken the view that, with the exception of determination of points of procedure between the two Houses, the obligation to interpret the Constitution does not rest with the Chair and that the only body fully entitled to do so is the High Court. Not even the House has the power finally to interpret the terms of the Constitution.
The most frequent determination of points of procedure between the two Houses has occurred in relation to Senate amendments to bills or pressed requests for amendments, where the rights or responsibilities of the House were considered to be affected. Typically, the Speaker has directed the attention of the House to the constitutional question which the message transmitting the purported amendment or the pressed request has involved, and referred to the requirements of section 53 of the Constitution. The decision as to whether the House would receive and entertain the message has been left with the House. It is felt that the Speaker is not acting as an interpreter of the Constitution in these cases but acting as the custodian of the privileges of the House.
In any matter which might involve or touch on the constitutional rights or powers of the House, the view has been taken that, other things being equal, the Speaker should not take decisions which could have the effect of limiting these rights or powers. On 10 June 1999 the Speaker was asked to rule against an amendment to the effect that a Member was not in breach of section 44(v) of the Constitution. It was argued that the amendment was unconstitutional and out of order because of the provisions of section 376 of the Commonwealth Electoral Act which allow reference of such matters to the Court of Disputed Returns. The Speaker allowed the amendment to stand, stating that the matter should be allowed to proceed because the House was master of its own destiny. On 13 October 1999 the Speaker was asked to rule on an amendment to the effect that a private Member be censured and ordered to produce a document believed to be in his possession and from which he had quoted. The Speaker was asked to rule the amendment out of order on the grounds that the House did not have the power to order a private Member to produce documents. The Speaker stated that it was not his intention to limit the power of the House to determine what could or could not be produced, that the House was master of its own destiny and that the matter could be put.
In relation to the interpretation of the law, the Chair has ruled:
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a question of law should be asked of the Attorney-General, not the Speaker;
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it is not the duty of the Speaker to give a decision on (to interpret) a question of law; and
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a very heavy tax would be imposed if the Speaker, as soon as any motion or bill were introduced, were expected to put the whole of the Crown Law Offices into operation in order to see whether what was proposed to be done was in accordance with the law.