2.1
Section 50, subparagraph ii of the Constitution provides the authority for each House of the Parliament to make the rules and orders with respect to the order and conduct of business and proceedings. These are ultimately delivered in the standing orders.
Standing orders relating to order and disorder
2.2
Standing order 60 states that order in the House shall be kept by the Speaker or the occupier of the Chair of the House at the time. Likewise, as provided by standing order 187, order is kept in the Federation Chamber (formerly named the Main Committee) by the Deputy Speaker or the occupier of the Chair of the Federation Chamber at the time.
2.3
The standing orders relating to disorder (standing orders 88 to 96) detail the behaviours that are considered disorderly and the actions available to the Speaker or occupant of the Chair to enforce order in the House.
2.4
Under standing order 91, a Member’s conduct is considered disorderly if the Member has:
persistently and wilfully obstructed the House;
used objectionable words, which he or she has refused to withdraw;
persistently and wilfully refused to conform to a standing order;
wilfully disobeyed an order of the House;
persistently and wilfully disregarded the authority of the Speaker; or
been considered by the Speaker to have behaved in a disorderly manner.
2.5
Other behaviours considered disorderly include the act of calling for a quorum when one already exists, and suggesting that the Speaker has ulterior motives or bias in deliberative decisions or in actions.
2.6
Standing order 187 describes the procedures for the maintenance of order in the Federation Chamber. Disorder in the Federation Chamber may be addressed in the House following a report from the Deputy Speaker.
Current sanctions against disorderly conduct
2.7
Chapter eight of the standing orders sets out general rules for debate and behaviour in the Chamber. Standing orders 94 to 96 in particular outline the sanctions available to the Speaker in dealing with disorderly conduct. These range from a direction to leave the Chamber for one hour (introduced in 1994), to the ‘naming’ of a Member, which results in a motion for the suspension of that Member from the service of the House for a period of time.
Naming and suspension
2.8
The naming of a Member under standing order 94(b) is, in effect, an appeal to the House to support the Chair in maintaining order. Once named, a motion for the Member to be suspended from the service of the House must be moved (usually it is the Leader of the House or the Minister leading for the Government at the particular time who moves the motion for the suspension of the Member). If the motion is carried, the Member is suspended for:
24 hours on the first occasion;
three consecutive sittings following the day of suspension for the second occasion in the same calendar year; or
seven consecutive sittings following the day of suspension for the third and subsequent occasions in the same calendar year.
2.9
The period of suspension after a Member is named has changed three times since the first sitting of Federal Parliament in 1901, mainly to ensure that suspension periods are linked to sitting periods and not calendar days.
2.10
The naming of a Member usually occurs immediately after an offence has been committed but this is not always possible. For example, Members have been named at the next sitting as a result of incidents that occurred at the adjournment of the previous sitting of the House.
2.11
Members have been named and suspended from the House 318 times since Federation. Eighty-seven of those occasions have occurred since the introduction of 94(a) withdrawals in 1994.
Table 2.1: Instances of Members named and suspended since the 37th Parliament
|
|
|
|
|
|
|
37th
|
10
|
1
|
0
|
11
|
|
38th
|
10
|
3
|
2
|
15
|
|
39th
|
11
|
0
|
0
|
11
|
|
40th
|
14
|
0
|
2*
|
16*
|
|
41st
|
7
|
0
|
1
|
8
|
|
42nd
|
14
|
0
|
0
|
14
|
|
43rd
|
4
|
0
|
0
|
4
|
|
44th
|
7
|
1
|
0
|
8
|
|
45th (up to 27 October 2017)
|
0
|
0
|
0
|
0
|
Source: Chamber Research Office, House of Representatives
*Includes two Senators named and suspended from a joint sitting in the House of Representatives Chamber.
2.12
A Member suspended from the service of the House is excluded from the Chamber, its galleries and the room in which the Federation Chamber is meeting, and may not participate in Chamber-related activities. Thus petitions, notices of motion and matters of public importance are not accepted from a Member under suspension. A suspended Member is not otherwise affected in the performance of his or her duties.
2.13
In earlier years, notices of questions were accepted from a Member after their suspension, although this has not been the recent practice. Notices of motions standing in the name of a suspended Member have been called on, and, not being moved or postponed, have been lost, and discussions of matters of public importance have not proceeded as the proposer was suspended from the service of the House.
2.14
Suspension from the service of the House does not exempt or prevent a Member from serving on a committee of the House. The payment of a Member’s salary and allowances is not affected by a suspension.
Direction to leave the Chamber
2.15
Standing order 94(a) enables the Speaker to direct a disorderly Member to leave the Chamber for a period of one hour. This grants the Speaker power to order the withdrawal of an offending Member on those occasions when it is considered that formal naming and suspension would be inappropriate, excessive or too disruptive to the business of the House.
2.16
This standing order has been in force since 1994 and was first recommended by the Procedure Committee in 1986. The committee recommended that a provision be inserted into the standing orders enabling the Chair to order a disorderly Member to withdraw from the House for one hour or the remainder of the sitting (whichever was lesser). In 1992 the committee recommended that the Speaker specify the period for withdrawal, but that the Member be allowed to enter the Chamber to vote in divisions. The committee once again recommended a one hour withdrawal in 1993, without the ability to vote in divisions. The latter suggestion is ultimately the mechanism that was adopted as standing order 94(a).
2.17
In its 1993 report, the Committee noted the seriousness of naming a Member and that the process was time-consuming and itself disruptive. It considered that order in the House would be better maintained if the Speaker were to have available a disciplinary procedure of lesser gravity, but of greater speed of operation. The Committee saw its proposed mechanism as a means of removing a source of disorder rather than as a punishment, enabling a situation to be defused quickly before it deteriorated, and without disrupting proceedings to any great extent.
2.18
Whilst the 1992 report suggested that the suspended Member should be able to participate in divisions during suspension, the later report in 1993 recommended that ‘the Member concerned be barred from participating in all activity in the Chamber and Main Committee for the period of his or her withdrawal, including divisions and quorums.’ The inability of a Member to participate in Chamber activity does not extend to committee activity or affect their access to the rest of the parliamentary precinct.
2.19
The standing orders contained a withdrawal provision from March 1950 to August 1963 to ‘deal with disorder based on House of Commons procedure’ where the Member was not permitted to return during the same sitting except by permission of the Chair. This provision was redrafted on recommendation of the Standing Orders Committee in its 1962 report, to make it clear that it did not apply to ordinary offences and that the Member was required to be named immediately after withdrawal.
2.20
To varying degrees, the use of standing order 94(a) has been constant since its introduction. Up until 27 October 2017, the standing order has been invoked 1685 times, with a significant increase in its use in recent parliaments. See Table 2.2 below for more detail.
2.21
Eighteen sittings have resulted in eight or more Members being ejected under the standing order, all of which have occurred since 2005. The most ejections in a single sitting day occurred on 27 November 2014, when eighteen Opposition Members were ordered to withdraw during questions without notice (Question Time).
2.22
The power to order a Member to withdraw under standing order 94(a) is used most commonly during Question Time. Up until the end of the 44th Parliament, 83.4 per cent of withdrawals under standing order 94(a) occurred during Question Time.
Table 2.2: Instances of Members ordered to withdraw under standing order 94(a) since introduction in the 37th Parliament
|
|
|
|
|
|
|
|
37th
|
14
|
2
|
0
|
16
|
0.1
|
|
38th
|
52
|
5
|
1
|
58
|
0.3
|
|
39th
|
100
|
10
|
0
|
110
|
0.5
|
|
40th
|
69
|
10
|
2
|
81
|
0.4
|
|
41st
|
206
|
9
|
0
|
215
|
1.1
|
|
42nd
|
137
|
15
|
2
|
154
|
0.9
|
|
43rd
|
243
|
28
|
2
|
273
|
1.5
|
|
44th
|
501
|
14
|
0
|
515
|
2.7
|
|
45th (up until 27 October 2017)
|
248
|
15
|
0
|
263
|
3.0
|
Source: Chamber Research Office, House of Representatives
Disorder in the Federation Chamber
2.23
If disorder occurs in the Federation Chamber the Deputy Speaker does not have the power to name a Member but may direct the Member or Members concerned to leave the room for 15 minutes under standing order 187. Alternatively he or she may suspend or adjourn the sitting. Following the suspension or adjournment, or the refusal of a Member to leave when so directed, the Deputy Speaker reports the disorder to the House. Any subsequent action against a Member under standing order 94 may only be taken in the House.
Urgent action
2.24
The Speaker can order a grossly disorderly Member to leave the Chamber immediately under standing order 94(c), if the Speaker determines that there is an urgent need to protect the dignity of the House. When the Member has left, the Speaker must immediately name the Member, and shall put the question for suspension without a motion being necessary.
2.25
This particular power has never been used, but the equivalent standing order prior to 1963 (standing order 303) was used on 26 occasions before the distinction was made in the standing orders in 1963 about what constituted disorderly conduct in the House.
Grave disorder
2.26
In the event of grave disorder occurring in the House, the Speaker, without any question being put, can suspend the sitting and state the time at which he or she will resume the Chair; or adjourn the House to the next sitting (standing order 95).
2.27
This power has been invoked on multiple occasions, most recently when protesters in the public gallery interrupted Question Time on 30 November 2016. On this occasion the Speaker suspended proceedings until the ringing of the bells.
Removal of persons
2.28
The Serjeant-at-Arms can remove a visitor or person other than a Member who disturbs the operation of the Chamber or the Federation Chamber, or take them into custody. If the Serjeant-at-Arms takes a person into custody, the Speaker must report it to the House without delay (standing order 96).
Developments over time
2.29
The majority of the current standing orders outlined above have remained substantially intact since their introduction into the original standing orders in 1901. The concept of managing disorder from the Chair and naming a Member for misconduct are principles shared across many Westminster parliaments, stemming from the practices of the UK House of Commons.
2.30
The introduction of the ‘Direction to leave the Chamber’ power under standing order 94(a) in 1994 (then standing order 304A), is the only substantive expansion of disorder powers under the standing orders since 1901. Most other changes have either clarified or refined existing procedures (such as defining disorderly behaviour, changing the periods of suspension or responding to the creation of the Federation Chamber).
Committee comment
2.31
The principles embodied within the standing orders enable the Speaker to maintain order within the Chamber, with the implied discretion of the House that comes from the authority of the standing orders themselves. Whether the Speaker chooses to exercise those powers is entirely dependent on the occupant of the Chair and the circumstances that contribute to any disorderly behaviour. This stands true for the Chair of the Federation Chamber as well.
2.32
The relatively stable nature of the disorder provisions reflect the intention of the House to maintain order through the Speaker; however, the inclusion of the one hour exclusion under standing order 94(a) reflects the House’s desire for a mechanism that could maintain order and minimise disruption, without escalating to the more serious sanction of naming the Member.
2.33
To expand these powers further could potentially allow for more effective control of behaviour within the Chamber, or more flexibility in minimising disruption; however it could also impinge on the ability of the House to legislate and vote effectively in circumstances where a Member may be excluded under any new powers.
2.34
These potential effects and the experiences of relevant similar parliaments are covered in Chapter 3.