3.1
As outlined in Chapter 2, the common genesis of Westminster principles for managing disorder stem from the historical precedent of the United Kingdom House of Commons. The rich history behind the development of practice and procedure within that Parliament lends credence to the mechanisms used within the House of Representatives today.
3.2
Different Westminster-style parliaments may share a common heritage, but they often evolve and mature in different ways and the Committee is conscious that these developments may lead to divergent practices that could help inform the development of any new powers or practices for the House.
3.3
To this end, the Committee corresponded with a number of similar Westminster-style parliaments regarding this inquiry. The submissions received helped the Committee understand both the common threads of standing orders regarding managing disorder, as well as the divergent paths that different legislatures can take when circumstances necessitate change.
3.4
The Committee also gathered the opinions of a number of current Members of the House of Representatives in a private forum, to gauge the general feeling towards the way in which the Chamber is currently managed, and whether there is a need for, or even a desire for, change.
Practice and procedure in other parliaments
3.5
The sanctions and procedures for dealing with disorder are relatively similar across other Australian parliaments and some other international parliaments, although there are some differences. Most have procedures for naming and suspending a Member, with some variation in the period of suspension or the penalties applied.
3.6
Presiding Officers in a large number of these jurisdictions have the ability to order a Member to withdraw from their respective Chamber (similar to standing order 94(a)). The period of time ranges between 30 minutes and up to 24 hours, with many requiring the Member to withdraw for the remainder of the sitting (until the Chamber stands adjourned). There are also some jurisdictions that leave the time of withdrawal at the discretion of the Chair (normally with an upper limit).
3.7
The majority of parliaments researched also include a power to suspend or adjourn proceedings as a result of grave disorder, or to have a Member or visitor removed by the Serjeant-at-Arms (or equivalent parliamentary officer).
3.8
The following table provides a summary of the sanctions for disorder relating to withdrawal or suspension for the parliaments that provided submissions or were researched for the inquiry:
Table 3.1: Summary of sanctions for disorder by jurisdiction
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Australia (Federal)
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Senate
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N/A
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Remainder of sitting day;
Seven sitting days;
Fourteen sitting days.
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Odgers’ notes: ‘The procedures relating to disorder are salutary in that the responsibility for maintaining order is imposed on the whole Senate, rather than the chair or any other particular authority. This principle is reflected in the rule that any senator may move a suspension motion, and the Senate must vote on it.’
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Australian Capital Territory
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Legislative Assembly
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N/A
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Three sitting hours;
Two sitting days;
Three sitting days
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Member may participate in committee proceedings but may not lodge notices, questions, petitions or matters of public importance.
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New South Wales
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Legislative Council
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A period of time as the Chair may decide but not beyond the end of the sitting.
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Any period the House decides (until the House terminates suspension and/or Councillor apologises).
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Withdrawal may be ordered if Councillor called to order three times in one sitting.
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New South Wales
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Legislative Assembly
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Up to 3 hours or remainder of the sitting day.
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Two sitting days;
Four sitting days;
Eight sitting days.
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Removal may be directed if Member called to order three times in one sitting. Removal excludes Member from Parliamentary precincts and Member cannot take part in any proceeding of the House or its committees, even if committee business is being conducted outside of the precincts.
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Northern Territory
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Legislative Assembly
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One hour.
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Twenty-four hours;
Two meeting days;
Three meeting days.
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Members ordered to withdraw can vote in divisions or be counted for quorum.
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Queensland
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Legislative Assembly
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Up to one hour or remainder of the sitting day.
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As specified in motion to suspend, not exceeding seven sitting days, or fourteen days if the Member refuses to obey the direction of the Speaker.
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Option to allow withdrawn Member to vote in divisions.
Suspended Members excluded from parliamentary precinct.
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South Australia
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Legislative Council
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N/A
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Remainder of sitting;
One week;
One month.
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Member must withdraw from the precincts of the Council upon suspension.
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South Australia
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House of Assembly
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N/A
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Remainder of sitting;
Three sitting days;
Eleven sitting days.
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Tasmania
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Legislative Council
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N/A
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Twenty-four hours;
Seven days;
Twenty-eight days.
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Member must withdraw from the precincts of the Council upon suspension.
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Tasmania
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House of Assembly
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Any period up to 24 hours.
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Twenty-four hours;
Seven days;
Twenty-eight days.
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Members ordered to withdraw can vote in divisions or be counted for quorum.
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Victoria
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Legislative Council
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Up to thirty minutes.
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Remainder of that sitting or period decided by House.
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Members ordered to withdraw can vote in divisions. Time for withdrawal carries over to next sitting if not expired at adjournment.
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Victoria
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Legislative Assembly
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Up to one and a half hours.
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Remainder of that sitting or period decided by House.
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Members ordered to withdraw can vote in divisions. Time for withdrawal carries over to next sitting if not expired at adjournment.
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Western Australia
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Legislative Council
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N/A
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One sitting day;
Four sitting days;
Thirteen sitting days.
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Suspended Members excluded from Chamber and galleries, committee meetings and may not have a notice of motion given or moved, a question asked or a petition presented on their behalf during the suspension.
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Western Australia
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Legislative Assembly
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Remainder of sitting day.
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Two sitting days;
Four sitting days;
Thirteen sitting days.
If Member continues to offend before leaving, may incur a penalty of three further sitting days per offence.
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Withdrawal may be ordered if Member called to order three times in one sitting.
Suspended Members are excluded from the Chamber, galleries & committees. Notices may not be given (including through another Member), questions on the Notice Paper in the name of the Member are postponed and may not be answered.
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New Zealand
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House of Representatives
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Up to remainder of sitting day.
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Twenty-four hours;
Seven days;
Twenty-eight days.
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Members ordered to withdraw may not return to Chamber to ask/answer questions, nor have another Member ask a question on their behalf, but can vote in divisions.
If a Member suspended refuses to leave the Chamber, they are (without further question being put) suspended for the remainder of the calendar year.
Members receive a salary penalty for the period of the suspension on second, third and subsequent offences.
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Canada
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House of Commons
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Remainder of sitting day.
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Period specified by the House.
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Speaker can refuse to recognise a Member and even skip over questions for that party during question period.
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Canada
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Senate
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N/A
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N/A
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In cases of grave disorder, Speaker may suspend sitting for up to three hours.
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United Kingdom
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House of Commons
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Remainder of sitting day.
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Five sitting days;
Twenty sitting days;
until the House resolves that the suspension terminates.
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Salary of suspended Members withheld for the duration of the suspension.
Member may voluntarily withdraw from Chamber for remainder of sitting without invoking a standing order.
Member may be forced to vacate their seat if suspended for more than ten sitting days, following a report from the Committee on Standards.
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United Kingdom
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House of Lords
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N/A
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As specified by motion in the House.
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Motion to suspend (or expel) must follow a recommendation from the Committee for Privileges and Conduct in cases where the Member has breached the Code of Conduct.
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South Africa
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National Assembly
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Remainder of sitting day.
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Five sitting days;
Ten sitting days;
Twenty sitting days.
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Member ordered to withdraw must leave the precincts of parliament.
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India
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Lok Sabha (Lower House)
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Remainder of sitting day.
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Period not exceeding the remainder of the session.
Automatic suspension for serious disorder can occur for five consecutive sitting days or the reminder of the session, whichever is less.
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Member suspended must leave the precincts of parliament.
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India
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Rajya Sabha (Upper House)
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Remainder of sitting day.
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Period not exceeding the remainder of the session.
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Member suspended must leave the precincts of parliament.
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Source: Multiple standing orders and submissions.
3.9
The table above outlines the different provisions of similar parliaments, though the common thread of sanctions for managing disorder are evident throughout the examples outlined.
3.10
The discretion of the Chair to order a Member to withdraw from the Chamber for a short period, as well as the practice of naming and suspending a Member following a motion agreed by the House, are shared across most of the jurisdictions. However, there are some recurring variations:
Whether a Member retains voting rights during a period of suspension;
Whether a Member can continue to participate in non-Chamber duties (committees etc.);
Whether a Member is required to leave the entirety of the parliamentary precinct during the period of suspension; and
Whether a Member forfeits salary during the period of suspension (normally after a naming).
3.11
It is also of note that eight of the twenty-two parliaments (36.4 per cent) identified do not have a formal ‘withdrawal’ provision, leaving only the more serious option of ‘naming’ a disorderly Member.
Evidence from Members
3.12
The Committee agreed that in order to capture the wider opinion of Members regarding the current sanctions available to manage disorder, there was a need for direct consultation. Accordingly, the Committee held a private roundtable to discuss the effectiveness of the current standing orders. This roundtable was available for all Members of the House of Representatives to attend on an ‘open’ basis.
3.13
In order for honest and open feedback, the roundtable was transcribed, but the transcript remains in-camera and any general comments made below are not attributed to any individual Member.
3.14
The general consensus amongst the Members in attendance was that the current provisions for managing disorder within the House still substantively fulfilled their intended function:
94(a) – to quickly remove a distracting disorderly Member without further serious ramifications; and
94(b) – the more serious mechanism of ‘naming’ a Member to get the House’s support to remove a disorderly Member for a longer period of time.
3.15
The Members present were not convinced of the need for further sanctions. Most Members felt that there were unacceptably elevated levels of 94(a) suspensions, especially during Question Time; however, noting that the number of ejections varied greatly across individual Members, as well as under respective Speakers.
3.16
The contested nature of whether a 94(a) suspension was a deterrent was acknowledged as being intrinsically linked to the nature and makeup of the Chamber. If a government has a slim majority (like in this current Parliament), their Members are less likely to conduct themselves in a disorderly fashion, in case their suspension puts their voting majority at risk.
3.17
This balance is also affected by a Member’s scheduled participation in Chamber business. Members acknowledged that if they had a question scheduled, or were due to speak on a bill or during the Matter of Public Importance discussion, they were less likely to ‘speak up’ during Question Time. There was also acknowledgement of the perception that being ejected from the Chamber multiple times could be seen as reducing their representative role for their electorate.
3.18
Inversely, some Members identified that being ejected under standing order 94(a) could be seen as a ‘badge of honour’, or may be used as a mechanism for being recognised by their electorate as passionate on a particular subject. If a question was asked of a Minister on a specific topic, and a Member was ejected during their answer, they may even use that as evidence of their advocacy on that subject.
3.19
Ultimately though, as acknowledged during the roundtable, ‘…each individual has their choice how they want to behave in the chamber’.
3.20
Discussion occurred around whether Members who had been ordered to withdraw a number of times over a given period could potentially face a longer period of exclusion. However, there was little support for such a measure, with Members advocating for more informal controls and liaison between Whips and the Speaker to manage behaviour.
3.21
There was acknowledgement of the theatre of Question Time and that it was not an accurate reflection of the normal workings of Parliament. Also, universal acknowledgement was forthcoming of the good job that the current Speaker was doing in maintaining order, especially during escalating tensions in Question Times over recent months.
Committee comment
3.22
The Committee noted with interest the different and varied methods with which similar parliaments manage disorder within their respective Chambers, noting their common Westminster heritage, and their shared focus on managing disorder.
3.23
Of further note were the mixed methods in which similar parliaments manage the type of minor disorder that the House manages through standing order 94(a) suspensions. The differentiation in time periods for suspensions, as well as the differences in the effects that such suspensions have on a Member’s voting or participation rights was noted with interest.
3.24
The Committee acknowledged that in a number of jurisdictions, the Chair has some discretion with regard to the length of time a Member is ordered to withdraw. The power to eject a disorderly Member for anywhere up to the end of the sitting is significant, particularly if this includes removal of voting privileges or exclusion from the parliamentary precinct.
3.25
This variable sanction base shows that different Westminster-style parliaments, though often sharing the same heritage and rules of conduct from the UK House of Commons, have developed in different ways over their lifetime, existing now as separate entities with divergent cultures and means to manage disorder.
3.26
Similarly, the observations of Members of the House of Representatives gathered at the roundtable private hearing conducted for the inquiry highlighted that the perception of how disorder is managed can vary even within a parliament. While some Members may see merit in strengthening sanctions against disorderly conduct, others perceive such proposals as a threat to the nature of debate in the House of Representatives and the rights of Members to fulfil their duties.