208  Powers, privileges and immunities not affected

Except so far as is expressly provided, these standing orders do not restrict the mode in which the Senate may exercise and uphold its powers, privileges, and immunities.

Amendment history

Adopted: 19 August 1903 as SO 437 but renumbered as SO 432 for the first printed edition

1989 revision: Old SO 447 renumbered as SO 208; minor streamlining of expression

Commentary

Agreed to without debate in 1903, this standing order could nonetheless have been the subject of President Baker’s remarks a short time earlier when he opined on the Senate’s power to expel one of its members (in relation to the debate on SO 204):

We cannot by standing orders curtail or extend our privileges. Our standing orders are framed and have validity only under the following section: –

Each House of the Parliament may make rules and orders with respect to:

(i) the mode in which its powers, privileges and immunities may be exercised and upheld;

We cannot by standing orders give ourselves any new powers, privileges and immunities. Unless it is done by statute, they remain the same as those of the House of Commons. If these standing orders proposed to give us any new power which the House of Commons does not possess they would be ultra vires, and if they proposed to limit our powers they would be equally ultra vires, because by standing orders the Senate can only provide for the mode in which its powers, privileges and immunities, may be exercised and upheld, and for the order and conduct of its business and proceedings.[1]

President Givens would later rule that a clear direction in the Constitution as to the powers of the Senate overrides any standing order or practice of the Parliament.[2]

In the first known commentary on this standing order in the 1938 MS, Edwards wrote:

This standing order may be regarded as a “saving clause”. Section 50 of the Constitution gives each House of the Parliament power to make rules and orders with respect to the mode in which its powers, privileges and immunities may be exercised and upheld. This standing order, therefore, shows that the Senate retains complete freedom to order its own business.

Subsequent commentators have concurred.[3]

Section 50 of the Constitution