197  Interruption of speaker: points of order or privilege

1. A senator shall not interrupt another senator speaking, except:
   1. to call attention to a point of order or privilege; or
   2. to call attention to the lack of a quorum.
2. A senator may draw attention at any time to a point of order or a matter of privilege arising in the proceedings then before the Senate.
3. A question of order or a matter of privilege so raised suspends the consideration and decision of every other question until determined.
4. On a question of order being raised the senator called to order shall sit down.
5. The President may hear argument on the question, and may determine it forthwith, or at a later time, at the President’s discretion.
6. Time taken in raising and determining points of order during a debate shall not be regarded as part of the amount of time allowed for a senator to speak in a debate or ask a question or for a debate.

Amendment history

Adopted: 19 August 1903 as SOs 413, 416, 417 and 419 (corresponding to paragraphs (1) to (4)) but renumbered as SOs 408, 411, 412 and 414 in the first printed edition

Amended:

• 10 September 1909, J.126 (to take effect 1 October 1909) (paragraph (5) added as SO 415A but renumbered as SO 425 for the 1909 edition)
• 13 February 1997, J.1447 (to take effect 24 February 1997) (paragraph (6) added as a generalisation of a rule in former sessional orders relating to time limits on questions and motions to take note of answers)

1989 revision: Old SOs 422, 425, 426, 428 and 430 combined into one, structured as five paragraphs and renumbered as SO 197; removal of reference to an obsolete procedure that allowed senators to require that words used in debate be taken down by the Clerk; focus of paragraph (2) moved from points of order or privilege that have “arisen since the last sitting of the Senate” to matters “arising in the proceedings then before the Senate”; expression streamlined and language modernised

Commentary

Except as provided under SO 196, there is no provision for interrupting a senator to move that the senator be no longer heard or that the question be now put, procedures also known as the “gag”.[1] The only bases on which a senator may be interrupted are prescribed by SO 197. Agreed to without debate in 1903, paragraphs (1) to (4) were modelled on NSW and South Australian practices.

Future President, Senator Thomas Givens (ALP, Qld) expressed strong views in 1909 about how points of order should be determined (Source: Commonwealth Parliamentary Handbook)

This standing order is also the foundation for the protection of senators against interjections from other senators and has been the subject of countless rulings. In practice, the Chair exercises discretion and frequently allows interjections which enhance or elucidate the debate, but always protects a senator who requests it.[2] In 1917, President Givens ruled during debate on an urgency motion that interjections were particularly unfair when senators were subject to time limits, a ruling that would be even more pertinent when general time limits were introduced in 1919.[3]

Hansard does not record interjections unless they are replied to or acknowledged by the senator speaking.[4]

Any senator may take a point of order at any time about the proceedings. The Chair may hear arguments on the point of order, and may rule on it immediately or at a later time after consideration. The Chair has a discretion not to hear further arguments on a point of order. A temporary chairman of committees may refer a point of order to the President for determination. A ruling may also be deferred if it is necessary to check the Hansard transcript or the tape of proceedings first.

Discussion on the addition of paragraph (5) in 1909 was prefaced with a declaration by then President Gould that no debate would be necessary on the proposal as it simply embodied the Senate’s practice. Not so, according to future President Givens who argued that the discretion of a President to determine a point of order without hearing arguments on it was a problematic development, more likely to lead to motions of dissent and encourage chairs to be autocratic. The immediate past Chairman of Committees, Senator Pearce (ALP, WA), countered with the argument that the present practice of hearing arguments led to “a lot of useless discussion” and that no Presiding Officer would risk his position by seeking to tyrannise the chamber with an immediate determination when any senator could move dissent. The vote was carried by 14 votes to 11.[5]

A ruling has the force of an order of the Senate unless it is challenged and overturned (see SO 198). Significant rulings are published at the end of the terms of Presidents, in accordance with a recommendation of the Standing Orders Committee in 1910.[6] Presidents’ rulings continue to be an important source of guidance to the Senate in dealing with procedural questions that are either new or, because of changing circumstances, require a new solution. From the beginning, Presidents, in making rulings, have leaned towards the interpretation which preserves or strengthens the powers of the Senate and the rights of senators.[7]

Matters of privilege are now dealt with in accordance with SO 81 and are often referred to the Standing Committee of Privileges which has been in existence since 1966.[8] In the early years of the Senate, referrals to a select committee of privileges were extremely rare, most matters of privilege being resolved on the floor of the Senate, having arisen since the last meeting of the Senate or having been raised by motion on notice.[9] Edwards gives numerous examples in the 1938 MS, including:

• publication by the press of papers tabled in the Senate (6/12/1909, J.249)
• misrepresentation in newspapers of proceedings in the Senate (15 August 1924, J.247)
• reflections on Parliament by a senator in a speech (18 August 1903, J.129; 20 August 1903, J.135)
• disclosure of the contents of select committee documents and publication of select committee evidence (30 November 1909, J.225)
• continuance of a session from year to year (25 June 1919, J.346)
• suspension of a senator and proposed deletion of proceedings from the Journals and Hansard (22 May 1918, J.177)

On none of these occasions, however, does it appear that senators interrupted other senators speaking to raise points of privilege.

For consistency with SO 81, the 1989 revision involved a limitation on the right of a senator to interrupt another to raise a point of order or privilege by restricting the right to proceedings then before the Senate. Any matter of privilege that had arisen since the last sitting of the Senate was now required to be raised in accordance with SO 81. Points of order relating to past proceedings, while extremely rare, could nonetheless continue to be raised by a question to the President when there was no other business before the Chair.[10]

The interruption of a senator to call attention to the lack of a quorum is also rare, most quorum calls occurring between speakers in order to buy time for the next speaker to reach the chamber. Occasionally, senators may express their displeasure at a particular turn of events by calling quorums in the middle of another senator’s speech. Such a call does not affect an individual senator’s speaking time (see SO 52(7)).

The origins of paragraph (6) are relatively recent. Time limits on the asking and answering of questions without notice were adopted on a trial basis in 1992. The resolution excluded time taken to raise and determine points of order from the time for asking and answering questions, as did the resolution providing for time limits on motions to take note of answers, adopted around the same time. Both procedures were renewed as sessional orders on 24 November 1992 before being incorporated into the standing orders in 1997. As part of that exercise, paragraph (6) was added as a generalised rule, excluding the time taken to raise and determine points of order from an individual senator’s speaking time, the overall time for the debate and the time for questions.[11] A similar generalised rule on excluding the time taken to form a quorum was added to SO 52. These rules provided explicit authority to “stop the clock” on an interrupted senator and so preserve shrinking speaking opportunities from potentially mischievous erosion by political opponents.

The 1989 revision provided an opportunity to remove a procedure whereby a senator could interrupt another senator speaking to require words used in debate to be taken down by the clerk, for the purpose of objecting to them.[12] It had not been used for many years and had previously been flagged for deletion in a ruling of President McMullin in 1957, although the Standing Orders Committee did not oblige with a recommendation.[13] Edwards notes in the 1938 MS that the procedure had been rarely used in the Senate or in any Parliament. He cites an early twentieth century work on the procedure of the House of Commons which indicated that the Speaker had described the procedure of “taking down” insulting words as obsolete and not to be employed.[14]