98    Calling for divisions

1. When the President states, on putting a question, that the “ayes” or the “noes” have it, that opinion may be challenged by senators calling “divide”.
2. A division may be called for only by senators who have given their voices against the majority as declared by the President.
3. At any time before the tellers are appointed a call for a division may be withdrawn by leave of the Senate, the division shall not be proceeded with, and the decision of the President which was challenged shall stand.

Amendment history

Adopted:

• 19 August 1903 as SOs 157 and 158 (corresponding to paragraphs (1) and (3))
• 20 August 1975, J.860 (and see 19 August 1975, J.851, 853–54) as SO 164A after 6 months’ trial as a sessional order (corresponding to paragraph (2))

Amended: 2 December 1965, J.427 (to take effect 1 January 1966) (“opinion” replaced “decision” in paragraph (1))

1989 revision: Old SOs 164, 164A and 165 combined into one, structured as three paragraphs and renumbered as SO 98; language modernised and expression streamlined

Commentary

Many questions in a deliberative assembly are decided on the voices, either unanimously or by the minority consenting not to dispute the opinion of the Chair. For contentious matters, however, or where there is doubt about where the majority lies, provision is made for a recorded vote or division where the names of senators are recorded in lists of those voting for or against the question. The Senate’s first division occurred on its first day of meeting, before there was even a Chair. It was on the process for choosing the President. Although the Hansard provides no clues, it may have been thought that the first question was best decided by division in the absence of a Chair to call the result. Although the Clerk would no doubt have been chairing the proceedings until the election of a President, the Clerk’s role was probably limited to allocating the call to speak by pointing at the chosen senator (see SO 6 and the “painful procedure”) rather than taking on the onerous duty of offering an opinion on whether the “Ayes” or “Noes” had it. Whatever the case, the actual process for taking the division would have been familiar to most senators from their experience in the colonial assemblies.

The 1938 MS noted that the standing orders relating to divisions were so detailed and complete that there was very little scope for general commentary. Their straightforwardness is reflected in the small number of amendments made to these standing orders since 1903.

A subtle change was made in 1965 as part of the general tidying up exercise that had been dragging on for several years. References to the “opinion” rather than the “decision” of the President in calling the question for the “Ayes” or “Noes” reinforced the status of the President as being subject to the will of the Senate rather than exercising power independently.[1]

The adoption of paragraph (2) as SO 164A in 1975 was not without controversy. It had its origins in rulings of the President that senators agreeing with the Chair’s call could not force a division on the minority.[2] The new standing order was recommended by the Standing Orders Committee in its Second Report for Fifty–Sixth Session (PP No. 276/1974) and debated in February 1975. Several senators argued against its adoption, initially as a sessional order, as a restriction on the rights of senators voting in favour of a question to have their names so recorded. Senator Marriott (Lib, Tas), for example, maintained that it took away “the right of any honourable senator to make the Senate members stand and be counted, to have it go into the records whether such members voted and if they did vote, how they voted”.[3] Against such arguments, the Manager of Government Business in the Senate, Senator Doug McClelland (ALP, NSW) pointed out that the amendment reflected universal practice in all other Westminster-style parliaments:

In no other Parliament in the world that pursues the Westminster system – this applies to State parliaments throughout Australia and to the House of Commons – can the winning side force a division on the losing side.[4]

Notwithstanding opposition, the amendment was adopted as a sessional order and, after six months’ operation, as a new standing order on 20 August 1975.[5]

After a division is called for it may be withdrawn by leave of the Senate (unanimous consent of all senators present) up to the point at which the President appoints the tellers. This procedure is used where divisions are called for mistakenly or where there has at first been some uncertainty as to how particular senators are voting.[6]

While there are no restrictions on calling for divisions, SO 57 places restrictions on holding divisions at particular times. Divisions called for during these times are deferred (see SO 57).