99    Voting by President

1. The President and the Deputy President and Chairman of Committees shall in all cases be entitled to a vote.
2. The President and the Deputy President and Chairman of Committees when in the chair may vote by stating to the Senate or to the committee whether they vote with the “ayes” or with the “noes”.

Amendment history

Adopted: 19 August 1903 as SOs 159 and 160 (corresponding to paragraphs (2) and (1) respectively)

Amended:

• 5 October 1922, J.107 (relocation to old SO 178 of provision for equally divided votes to be resolved in the negative[1])
• 22 October 1981, J.589–90 (change of title of office of Chairman of Committees)

1989 revision: Old SOs 166 and 167 combined into one, structured as two paragraphs and renumbered as SO 99; language and terminology modernised

Commentary

The voting entitlement of the President is a cornerstone of the institutional design of the Senate. Section 23 of the Constitution provides:

Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

The right of the President to a deliberative vote is designed to preserve the equality of representation of the states. Had the President been given a casting vote, the state represented by the senator who happened to be President would either have had an additional vote (if the casting vote were in addition to a deliberative vote) or the power to decide issues when the other senators were equally divided (if the President had a casting vote only).[2] The President’s vote therefore carries the same weight as that of any other senator. In contrast, the Speaker of the House of Representatives cannot vote in a division in that House unless the numbers are equal, in which case he or she has a casting, or deciding, vote.[3]

Nowadays, the statement by the President or the Deputy President and Chairman of Committees as to which way they intend to vote is usually made to the tellers, but on occasion, the standing order has been followed literally.[4] Early practice (on which the proposed standing order was based[5]) was quite the opposite but debate on the proposal in 1903 revealed some dissatisfaction. On the initiative of Senator Higgs (ALP, Qld) the standing order was amended before adoption to confine the right of the President or Chairman to vote in this way to when they occupied the chair and not otherwise. Apparently, the President had not been expected to move to the right or left like other senators voting in a division in committee of the whole but to remain in his chair and state his vote to the committee (not to a teller).[6] Other senators saw this as a courtesy extended to the President which would also, through the adoption of the new standing order, be extended to the Chairman of Committees. Senator Walker (FT, NSW) recounted an unpleasant experience he had had when he dared to query a teller on how the President was voting: “The teller was simply angry with me. That is the only time I have ever had any unpleasantness in this Chamber”.[7] Senator de Largie (ALP, WA) probably summed up the mood of the Senate with this contribution:

We ought to be consistent in framing our standing orders. When we are devising a system of voting, I do not see why a particular senator should be given a privilege which is denied to others. In a committee of the whole it is no more undignified for the President to cross the floor than for any other senator to do so. If it is not thought worth while to adopt a general rule, let every senator have the right to remain in his seat and vote as he chooses. Of course it will give additional work to the tellers, and, if any confusion should result, it can only be ascribed to our desire to uphold the dignity of senators.[8]

The amendment was agreed to and the problem resolved.[9]

Neither the President nor Deputy President (and, in practice, any of the temporary chairs) is required to vote when in the chair (see SO 101). This recognises the fact that the chair, unlike any other senator, does not have the option of abstaining from the vote by leaving (or not attending) the chamber.