115  Committal

1. After the second reading, a bill shall be considered in a committee of the whole immediately, unless:
   1. the bill is referred to a standing or select committee; or
   2. no senator has:
      1. circulated in the Senate a proposed amendment or request for amendment of the bill, or
      2. required in debate or by notification to the chair that the bill be considered in committee of the whole.
2. After a bill has been read a second time a motion may be moved:
   1. without notice for referring the bill to a committee;
   2. on notice for an instruction to the committee of the whole.
3. he further consideration of a bill referred to a standing or select committee shall be an order of the day for:
   1. where a day is fixed for the report of the committee, that day; or
   2. where no day is fixed for the report of the committee, the sitting day next occurring after the day on which the committee reports on the bill.
4. 1. Where proposed expenditure has been considered and reported on by a legislative and general purpose standing committee, an appropriation bill authorising that proposed expenditure shall not be considered in committee of the whole, unless, prior to the further consideration of the bill subsequent to the second reading, a senator has circulated in the Senate a proposed amendment or request for amendment of the bill.
   2. Where an appropriation bill is considered in committee of the whole in accordance with this paragraph:
      1. the only questions put by the chair shall be:
         1. that any amendment or request for amendment moved to the bill be agreed to, and
         2. that the bill be reported with any amendment or request for amendment agreed to by the committee; and
      2. debate shall be confined to the purpose of any amendment or request for amendment moved to the bill.
   3. At any stage of the consideration of an appropriation bill, other than in committee of the whole, an amendment, other than an amendment or a request for an amendment to the bill, arising from a recommendation of a legislative and general purpose standing committee, may be moved to the question before the chair.
5. When the order of the day relating to a bill which is the subject of a committee report pursuant to standing order 24A is called on, the following procedures shall apply:
   1. A motion may be moved without notice that the report of the committee be adopted (if the committee has recommended amendments to the bill, this motion shall have the effect of amending the bill accordingly, but may not be moved if other proposed amendments to the bill have been circulated in the Senate by a senator).
   2. If a motion under subparagraph (a) is moved, following the disposal of that motion a motion may be moved by a minister, or, in respect of a bill introduced into either House of the Parliament other than by a minister, by the senator in charge of the bill, that consideration of the bill be an order of the day for a future day, or that the bill not be further proceeded with.
   3. If no motion under subparagraph (a) or (b) is agreed to, a motion may be moved without notice that the bill again be referred to the committee for reconsideration, provided that such motion:
      1. indicates the matters which the committee is to reconsider, and
      2. fixes the day for the further report of the committee,
      and if such motion is agreed to the bill shall stand referred to the committee, and the further consideration of the bill shall be an order of the day for the day fixed for the further report of the committee.
   4. If no motion under subparagraph (b) or (c) is agreed to, consideration of the bill shall be resumed at the stage at which it was referred to the committee, provided that, if the consideration of the bill in committee of the whole has been concluded and the committee has recommended amendments to the bill or requests for amendments, the bill shall again be considered in committee of the whole.
6. On a motion on notice and a motion under this standing order to refer a bill to a committee, and on an amendment for that purpose to a question in respect of any stage in the passage of a bill after its second reading, a senator shall not speak for more than 5 minutes, and at the expiration of 30 minutes, if the debate be not sooner concluded, the President shall put the question on the motion and any amendments before the chair, but if a senator wishes to move a further amendment at that time, that amendment may be moved and shall be determined without debate.

Amendment history

Adopted:

• Paragraph (1) (part), 19 August 1903 as SO 189 but renumbered as SO 188 for the first printed edition
• Paragraph (2), 1 August 1934, J.459–61 (to take effect 1 October 1934) as SO 196A
• Paragraph (3), 11 March 1932, J.45–46, as SO 197

Amended:

• 9 September 1909, J.121 (to take effect 1 October 1909) (paragraph (1) amended to remove provision for referral to a select committee by motion after second reading in consequence of an alternative provision being inserted elsewhere)
• 14 October 1991, J.1579–81 (paragraph (3) amended in respect of restoration of bills to the Notice Paper following committee reports)
• [6 May 1993, J.96–100 (procedures for consideration of appropriation bills in committee of the whole adopted as an order of continuing effect)]
• 24 August 1994, J.4059–51 (to take effect 10 October 1994) (reference to legislation committees inserted as a consequence of the 1994 restructure of the committee system – later superseded)
• 13 February 1997, J.1447 (to take effect 24 February 1997) (incorporation of orders of continuing effect relating to the consideration of appropriation bills in committee of the whole and the referral of bills to committees– paragraphs (4) to (6))
• 3 December 2003, J.2839–40 (amendment of paragraph (1) to allow committee of the whole to be by-passed if it is not required)
• 14 August 2006 (to take effect 11 September 2006) (references to legislation committees replaced with references to legislative and general purpose standing committees, consequential on the 2006 restructure of the committee system)

1989 revision: Old SOs 196, 196A and 197 combined, structured as three paragraphs and renumbered as SO 115

Commentary

The process referred to in the commentary on SO 114 for changes to the standing orders in the early 1930s to facilitate the referral of bills to standing or select committees is largely responsible for the form and content of what became SO 115 after the 1989 revision.

Consideration of the nation-Building Funds Bill 2008 in committee of the whole (Photo courtesy of AUSPIC)

The original version of paragraph (1), adopted in 1903 without debate, provided for the Senate to resolve itself into a committee of the whole immediately after the second reading of a bill, unless a motion was moved for the referral of the bill to a select committee or for an instruction to the committee of the whole. This standing order was amended in 1909 to remove provision for the reference of bills to select committees by motion after the second reading, in consequence of the Senate’s agreement to an amendment providing for such references by the alternative means of a second reading amendment (see SO 114). These amendments in 1909 were the first results of a sustained examination of the whole process for referring bills to committees, a process not put into practice for some decades.

The recommendation of the 1929 select committee on the advisability of standing committees for the Standing Orders Committee to examine how the standing orders could be amended to facilitate the reference of bills to either standing or select committees resulted in the adoption of what is now paragraph (3) in 1932, while paragraph (2) was adopted in 1934 following a further review by the Standing Orders Committee of the referral provisions.[1] It was one of several provisions adopted at the time but is the only one remaining, the others having been deleted during the 1989 revision as superfluous or not reflecting actual practice.

Although the establishment of a system of legislative and general purpose standing committees in 1970 led to more bills being referred to standing committees, it was not until the adoption of the recommendations of the Select Committee on Legislation Procedures in 1989 that bills began to be referred to committees on a systematic basis.[2] Orders adopted on 5 December 1989, to come into effect the following year, established the Selection of Bills Committee to make recommendations to the Senate about which bills should be referred to which committees. The orders provided that where a bill was so referred, further consideration of the bill automatically became an order of the day for the day fixed for the committee to report.[3] The earlier version of paragraph (3) provided that a future day be fixed for further consideration of a bill once a report on it had been presented. A motion was required to fix the day.

The potential inconsistency between these two provisions, purely on the basis of different methods of referral of a bill, was considered by the Procedure Committee and was one of the subjects covered in its Second Report of 1991 (PP No. 466/1991). The committee suggested that the procedure operating under the new orders be adopted with appropriate modifications to take into account the situation where no reporting date was fixed:

Under the new procedures a day is always fixed for a committee to report on a bill. Under the standing orders it is not necessary to fix a day for a committee to report on a bill. Where the reporting day is known, it is reasonable that the bill may be proceeded with on that day, but where there is no fixed reporting day Senators could well be taken by surprise by a bill being proceeded with immediately after the presentation of the committee report. (pp. 5–6)

The committee’s suggestion for SO 115(3) in its current form was adopted on 14 October 1991.[4]

SO 115 deals with a variety of issues relating to the committal of bills, including:

• when bills are committed;
• circumstances in which they may not be committed;
• alternatives to committal;
• mechanics associated with the alternative of referral to a committee, including post-reporting arrangements and time limits for debates on the reference of bills;
• the scope of committee of the whole proceedings on appropriation bills that have been reported on by committees considering estimates; and
• further proceedings on bills to which amendments have been recommended by committees pursuant to a reference by the Selection of Bills Committee under SO 24A.

The scope of committee of the whole proceedings on appropriation bills whose particulars had been the subject of extensive inquiries by estimates committees had long exercised the Senate. For details, see Odgers’ Australian Senate Practice, 12^th edition, Chapter 13, under “History of expenditure scrutiny”. Paragraph (4) derives from orders adopted on 6 May 1993[5] and incorporated into the standing orders in 1997. These orders represented a second major attempt to limit committee of the whole debate on appropriation bills, the first having failed.

Estimates committees had been intended as a replacement for the committee stage on appropriation bills but, by the end of the 1980s, the committee stage was effectively a re-run of the estimates process. On 5 December 1989, the Senate adopted a recommendation of the Select Committee on Legislation Procedures limiting debate in committee of the whole to matters in respect of which reports of estimates committees, or reservations attached to them (by any senator), had made recommendations.[6] The purpose of the orders was soon defeated by senators attaching extensive reservations to estimates reports so, in 1992, the Procedure Committee re-examined the question of how to restrain the ever-expanding consideration of estimates.[7]

This second solution involved substituting the committee of the whole stage with supplementary rounds of estimates hearings, particularly to follow up unanswered questions on notice. See commentary on SO 26 for details. Paragraph (4) thus provides for a committee stage on appropriation bills only if amendments or requests for amendments have been circulated before the further consideration of the bill subsequent to its second reading. Both the questions to be put in respect of the amendments or requests, and the scope of debate, are strictly limited. Recommendations from committees considering estimates may be moved as amendments to the motion for any stage of the bills other than in committee of the whole. These measures have had the effect of allowing full scope for consideration of estimates by committees while preventing a re-run of this consideration at the committee stage of the appropriation bills.

Paragraph (5) also had its origins in the recommendations of the Select Committee on Legislation Procedures and shares a common purpose of ensuring that where committees are delegated a particular aspect of the legislative process, that work is not duplicated by the chamber. It was initially adopted as part of the orders of the Senate of 5 December 1989 for the reference of bills to committees.[8] Under the provisions of this paragraph:

• amendments recommended by a committee may be adopted by a motion without notice and the bill amended accordingly;
• future consideration of the bill may be ordered, or the bill not proceeded with;
• the bill may be sent back to the committee with specified matters for reconsideration;
• consideration of the bill may be resumed at the stage at which it was referred to the committee.

A motion to adopt the report of a committee and amend a bill accordingly may not be moved if senators have circulated other proposed amendments to the bill. This preserves the rights of senators to initiate amendments and have them considered by a committee of the whole. However, if there are no such amendments, the work of a committee which has considered legislation may be dealt with expeditiously. The capacity to send a bill back to a committee with specified matters for reconsideration has not been utilised to any significant extent, probably reflecting the time pressures which apply to the consideration of most bills.

Finally, paragraph (6) from the same source imposes time limits on motions for the reference of bills to committees of 30 minutes in total and 5 minutes per speaker. These time limits apply to the adoption of Selection of Bills Committee reports and all motions or amendments to refer bills to committees, including Business of the Senate motions but not second reading amendments. The intention of this paragraph is to ensure that motions to refer bills to committees do not have any debating time advantage over motions to adopt reports of the Selection of Bills Committee. These time limits do not apply to motions containing terms of reference in addition to the bills themselves, or to parts or provisions of bills, or amendments, or to anything other than the whole bill only.