2.1
This chapter proposes minor amendments to the standing orders of a technical nature based on the Committee’s consideration of the current standing orders, its observations of the practices of the current Parliament, and its consideration of recommendations of Procedure Committees of previous parliaments.
2.2
The standing orders identified and amendments suggested are in the order as they appear in the standing orders.
2.3
Two minor technical and consequential amendments are identified at the end of the chapter that will be recommended for administrative Clerk’s amendments.
Standing order 1 – Maximum speaking times
2.4
Time limits for debates and speeches are set out in standing order 1.
Times for ‘Member next speaking’
2.5
The speech time limits for a motion to suspend standing orders moved without notice are:
Seconder (if any)5 minutes
Member next speaking10 minutes
Any other Member5 minutes
2.6
Usually, after the mover and seconder speak, the call will be given to a Member from the other side, speaking against the motion. The intent behind the speech time limits for this debate (as with most debates) is that equal time is allocated to the mover and to the first Member to speak to the motion from the other side of the House. It is intended that the ‘Member next speaking’ in standing order 1 would be speaking against the motion.
2.7
On 13 June 2017, a Shadow Minister moved, without notice, to suspend standing orders to bring on a Government bill. After the seconder spoke for five minutes, no Member from the Government side sought the call so an Opposition Member was called to speak and was allocated ten minutes. A Government Member then rose, was given the call and spoke for approximately three minutes until the time allocated for the debate expired. In this case, the mover, seconder and the Member next speaking were all non-Government Members, speaking in support of the motion.
2.8
This incident highlighted the need for a minor amendment to the standing orders to clarify the intention that the first Member speaking from the other side should be given increased speaking time, not a Member from the same side as the mover.
2.9
This issue arises with regard to speaking times for motions to suspend standing orders moved without notice, motions to suspend standing orders moved on notice relating to the programming of government business, and dissent motions. The Committee recommends that standing order 1 be amended to clarify that for each of these debates, the Member next speaking against the motion be given increased time (in each case, 10 minutes).
2.10
The Committee understands that, in practice, it might be difficult on occasion to know immediately whether or not the Member next speaking is speaking for or against the motion (particularly if the Member next speaking is a non-aligned Member). There might also be instances where both sides of the House wish to speak in support of a motion, such as a motion to suspend standing orders relating to the programming of government business. While such practical implications should be considered further, the wording suggested in Attachment A could help guide any potential standing order amendment.
Time limits for second reading speeches
2.11
The Selection Committee, established under standing order 222, determines the program for committee and delegation business and private Members’ business for each sitting Monday, and selects bills for referral to committees.
2.12
During the 43rd and 44th Parliaments, the Selection Committee could set speaking times for both government and private Members’ bills. This power was never used for government bills and was removed at the start of the 45th Parliament. The committee retains the ability to set times for second reading speeches for private Members’ bills. The relevant entries in standing order 1 were not consequentially updated. Standing order 1 should be amended to resolve this inconsistency.
Responses to ministerial statements
2.13
Standing order 63A currently allows that:
‘When the House has granted a Minister leave to make a ministerial statement, the House shall be deemed to have granted leave for the Leader of the Opposition, or Member representing, to speak in response to the statement for an equal amount of time.’
2.14
However, standing order 1 does not provide a time limit for statements by leave of the House, including responses to ministerial statements. Standing order 1 should be amended to clarify that following a ministerial statement, the Leader of the Opposition, or Member representing, may speak for an equal amount of time, in accordance with standing order 63A.
Committee comment
2.15
The identified issues relating to standing order 1 are consequential to changes or updates to other standing orders, which have not been adequately reflected in the table at standing order 1.
2.16
The Committee recommends that the table be updated (as per the outlined amendments in Appendix A) to ensure that the quick reference afforded by the table of maximum time limits is accurate.
2.17
The Committee recommends that standing order 1 be amended as outlined in Appendix A.
Standing order 8 – First meeting for new session following prorogation other than for a new Parliament
2.18
An acknowledgement of country is a respectful public recognition of the traditional custodians of the land on which a proceeding takes place and is a way to demonstrate respect for Aboriginal and Torres Strait Islander protocols at the commencement of an event.
2.19
The standing orders were amended in September 2010 to provide for the Speaker to make an acknowledgement of country, just prior to the reading of prayers, at the start of each sitting day (standing order 38).
2.20
In introducing the change, the then Leader of the House (Mr Albanese) stated:
Finally, I highlight one of the reforms in this package that is not about the technical workings of the House but about ensuring the parliament is more respectful to the traditional owners of the land on which it meets. The election of the government in November 2007 and the subsequent opening of the 42nd Parliament in February 2008 for the first time in the history of the Commonwealth saw a traditional ‘Welcome to Country’ and smoking ceremony performed by Indigenous elders for the opening of the federal parliament.
The government apologised to the stolen generations. On 23 June 2010 the government introduced a historic reform with amendments to the standing orders to ensure the formalisation of the role and place of a traditional ‘Welcome to Country’ in the opening of a new parliament. We did that yesterday in the parliamentary forecourt.
If this package of reforms passes the House, tomorrow will bring another historic event. The day’s proceedings will commence with the Speaker making an acknowledgment of country. Standing order 38 will be amended to include that acknowledgement, which will occur prior to prayers.
2.21
No corresponding change was made to the procedure set down for the first meeting of a second or subsequent session of parliament (standing order 8).
2.22
Whilst a second or subsequent session is now a rare occurrence, the prorogation of the first session of the 44th Parliament and the subsequent first meeting of the second session of the 44th Parliament on 18 April 2016 saw the Speaker make an acknowledgement of country, when technically the standing orders did not require it.
2.23
The Committee recommends that standing order 8(c) be amended to include an acknowledgement of country, as is provided for at the start of other sitting days:
(c) The Speaker shall make an acknowledgement of country and read Prayers.
Standing order 39 - Announcements concerning inquiries and presentation of reports (committee and delegation business)
39(a) - Announcements concerning inquiries
2.24
Standing order 39(a) currently allows that the Chair or deputy Chair of a committee may make a statement relating to an inquiry during the periods for committee and delegation business on Mondays. This opportunity can be used to update the House on the conduct or progress of an inquiry.
2.25
This standing order has been interpreted so as to include opportunities for both the Chair and deputy Chair to make statements in relation to an inquiry.
Committee comment
2.26
The Committee acknowledges that allowing both the Chair and deputy Chair to make a statement reflects the intention of the committee system, in allowing bipartisan consideration of policy matters.
2.27
It might assist with interpretation to amend the wording of standing order 39(a) to reflect House practice.
2.28
The Committee recommends that standing order 39(a) be amended to read ‘The Chair and/or deputy Chair of a committee may make a statement…’.
Standing order 41 - Private Members’ business
41(c) - Private Members’ bills—second reading
2.29
Standing order 1 provides that for the second reading of a private Member’s bill, the mover may speak for 10 minutes at the time of presentation and 5 minutes ‘In continuation, on resumption of debate (if required by mover)’.
2.30
This procedure was introduced at the beginning of the 44th Parliament on recommendation of the Procedure Committee in the previous Parliament:
The Committee agrees that, in the interests of efficiency, the procedure for presenting private Members’ bills should be brought into line with that for presenting Government bills. The Committee recommends that Members be allocated 10 minutes for a second reading speech instead of the current 10 minutes for a presentation statement. If required, a Member could speak in continuation for a further 5 minutes when the debate is resumed.
2.31
Standing order 41(c) provides that the Member who has presented the bill ‘may speak to the second reading for no longer than 10 minutes at the time of presentation and 5 minutes on resumption of the debate’, with the Selection Committee determining any times for consideration of the remainder of the second reading debate.
Committee comment
2.32
To ensure consistency between standing order 1 and standing order 41(c), standing order 41(c) should be amended to reflect that the five minutes extra speaking time for the mover, on resumption of debate, is in continuation, and only if required by the Member.
2.33
The Committee recommends that standing order 41(c) be amended to read:
(c) Subject to this standing order, the first and second reading shall proceed in accordance with standing orders 141 and 142. The Member who has presented the bill may speak to the second reading for no longer than 10 minutes at the time of presentation and 5 minutes, in continuation, on resumption of the debate (if required by mover). The Selection Committee may determine times for consideration of the remainder of the second reading debate.
Standing orders 82-85 – Debate of urgent matters
2.34
Standing orders 82-85 set out procedures to limit debate or to set a timetable for debate on a bill or motion declared ‘urgent' by a Minister. These provisions have been referred to as the ‘guillotine’. Ministers can use this procedure when they want a bill or motion to proceed as quickly as possible or to impose a specific shortened debate time.
2.35
Under these standing orders, a Minister may declare a motion or bill before the House to be ‘urgent’. The question is then put immediately that the motion or bill be considered urgent. If the question is agreed to, a Minister may move a motion specifying times for debate on the motion or on any stage of the bill.
2.36
In practice, the ‘guillotine’ procedure has not been used since 2 November 2006. Instead, Leaders of the House in successive governments have moved to suspend standing orders to set a timetable for the debate of urgent matters (also known as debate management motions). This practice is more streamlined than the formal guillotine procedure. Debate management motions also provide greater flexibility, for example motions have included provision for a group of bills to be considered together and for a limit on the number of speakers.
2.37
The last suspension of standing orders to limit debate on a bill occurred on 19 October 2016, in relation to the Fair Work (Registered Organisations) Amendment Bill 2014.
2.38
This process was instigated by the Leader of the House, pursuant to notice, moving that so much of the standing orders be suspended as would prevent the following from occurring:
1
resumption of debate on the second reading of the bill being called on and the first Opposition Member immediately called to speak;
2
at the conclusion of the speech of the first Opposition Member on the second reading of the bill, the Prime Minister being called immediately to conclude the second reading debate and the question then being put immediately on the second reading of the bill, a Governor-General's message being reported and the question being put immediately on the third reading of the bill; and
3
any variation to this arrangement to be made only by a motion moved by a Minister.
2.39
The limitation of debate to a small number of Members and immediate conclusion of the second reading debate, Governor-General’s message and third reading, is one example of the type of debate management motion used on a bill (or number of bills).
2.40
Technically, the motions to manage debate for the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 on 5, 6 and 7 December 2017, which allowed for debate on a private Member’s bill during the time allotted for government business, and to allow the House to conclude other business prior to adjourning for the year, were debate management motions. The Committee is not considering them in relation to this issue of the ‘guillotine’ and urgent bills.
2.41
In its 2016 report, the Procedure Committee suggested amending standing orders 82-85 (debate of urgent matters) and standing order 1 (maximum speaking times) to better align with current practice.
2.42
That report identified proposed amendments to the relevant standing orders, but suggested that they required further consideration.
Committee comment
2.43
The Committee agrees with the view of its predecessor that redundant procedures in standing orders 82-85 should be updated to reflect the practice of successive parliaments.
2.44
The standing orders should reflect the way in which the House chooses to conduct its business. The Committee considers that the adoption of standing orders to govern debate management motions is preferable to the current practice whereby standing orders are suspended to manage urgent matters.
2.45
The Committee agrees that the amendments to standing orders 82 85, and a consequential amendment to standing order 1, proposed by the former Committee are appropriate and should be adopted.
2.46
The Committee recommends that standing orders 82-85 be amended as outlined in Appendix A.
Standing order 105 – Replies to written questions
2.47
Standing order 105 requires questions in writing submitted by a Member under standing order 98, along with the Minister’s written reply, to be published in Hansard. This has traditionally been to allow for a permanent public record of the question and answer to be available to anyone interested in accessing that information.
2.48
With the introduction of the ParlWork online platform during this Parliament, House questions in writing and Ministers’ written replies are now publicly available through that medium and their replication in Hansard is a duplication of production.
2.49
Additionally, answers are not necessarily printed in Hansard immediately. Time may elapse between receipt of the answer and the next sitting day, and space restrictions may also delay publication of answers.
2.50
In 2013 the Senate created an online database of Questions on Notice (as of 5 February 2013 onwards) after resolving to no longer require questions and answers to be recorded in the Senate’s Hansard transcripts, and amending their standing orders accordingly. This amendment was made as a result of the Senate Standing Committee on Procedure’s first report of 2012.
2.51
The current availability of questions and answers through ParlWork is limited to the current Parliament, so in order for a similar change for House questions, the Department of the House of Representatives would need to create a similar permanent online source for questions and answers, so that they no longer need to be published in Hansard.
Committee comment
2.52
The Committee believes that the process that the Senate has been undertaking for the last five years, to publish questions and answers electronically, therefore freeing up space in Hansard and ensuring timely publication, has merit.
2.53
The introduction of the ParlWork platform would appear to herald the appropriate time for the House to also electronically publish and store the questions and answers.
2.54
The Committee therefore recommends that the Department of the House of Representatives prioritise the creation of an online repository to capture the online publication of questions and answers from this Parliament into the future.
2.55
The Committee also recommends that once a permanent repository is in place, standing order 105 be amended to remove the requirement to publish questions in writing and their answers in Hansard.
2.56
The Committee recommends that standing order 105(a) be amended to read:
(a) A Minister’s written reply to a question must be delivered to the Clerk. The Clerk shall provide a copy of the reply to the Member who asked the question, and the question and reply shall be published in Hansard.
The Committee further recommends that the Department of the House of Representatives prioritise the creation of an online repository of questions in writing and replies to them, to replace their publication in Hansard.
Standing order 122 – Questions put on proposed amendments
2.57
When a question on a proposed amendment is put, and no Member objects, the Chair puts the question in the form ‘That the amendment be agreed to’ (standing order 122(b)).
2.58
Standing order 122(a)(i-iii) provides alternative wording depending on whether the purpose of the amendment is to insert, omit or substitute words.
2.59
For example, if the purpose is to omit certain words in order to add other words, the question is ‘That the words proposed to be omitted stand part of the question’. Depending on the result of that question, a further question may be put ‘that the words proposed be inserted’.
2.60
In 2011, the former Committee suggested trialling the shortened form ‘That the amendment be agreed to’ for all amendments. Following that report, the Speaker advised the House that the traditional forms had caused some confusion and that he would use the simplified form for the remainder of that Parliament, unless any Member objected and required the traditional form to be used in a particular case.
2.61
In subsequent parliaments the use of the simplified form has become standard practice and the forms provided for by standing order 122(a)(i-iii) are no longer used. The last use of any of the forms of alternative wording was on 5 March 2014.
Committee comment
2.62
The Committee believes that the traditional forms of putting the question on amendments could now be considered obsolete and standing orders 122 and 123 (as consequential amendments) should be amended to align with current practice, deleting the traditional forms altogether.
2.63
The Committee recommends that standing orders 122 and 123 be amended to read:
122Questions put on proposed amendments
(a) The Speaker shall put a the question reflecting the purpose of on a proposed amendment -
(i) If the purpose is to omit certain words, the question shall be—
That the words proposed to be omitted stand part of the question.
(ii) If the purpose is to omit certain words in order to insert or add other words, the question shall be—
That the words proposed to be omitted stand part of the question.
If this question is resolved in the affirmative, the amendment is disposed of: if negatived, the Speaker shall put a further question—
That the words proposed be [inserted, or added].
(iii) If the purpose is to insert or add certain words, the question shall be—
That the words proposed be [inserted, or added].
(b) If no Member objects, instead of the questions in paragraph (a), the Speaker may put the question—
That the amendment be agreed to.
123Restrictions on amendments to be moved
(a) A proposed amendment must not be inconsistent with a previous decision on the question.
(b) An amendment may not be moved to an earlier part of the question:
(i) after a later part has been amended, or
(ii) after an amendment to a later part has been proposed and the proposal has not, by leave, been withdrawn.
(c) When it is moved to omit words in the main question in order to insert or add others, no amendment to the words proposed to be inserted or added may be moved until the question ‘that the words proposed to be omitted stand part of the question’ has been determined.
(d) Only an amendment which adds other words may be moved to words which the House has resolved stand part of the question, or which have been inserted in, or added to, a question.
(e)(c) Each proposed amendment shall be disposed of before another amendment to the original question can be moved.
Standing order 153 – Questions to be put
Return of bill with unresolved question
2.64
A bill being debated in the Federation Chamber can be returned to the House under standing order 197, either on a motion moved without notice by a Minister in the Federation Chamber or in the House, or by a programming declaration made in accordance with standing order 45.
2.65
During the consideration of a bill in the Federation Chamber, if a question is put (amendment be agreed to, bill be read a second time etc) and cannot be decided on the voices, the question is unresolved and reported to the House for resolution there (SO 188).
2.66
Standing order 195 provides that the Federation Chamber may continue proceedings on a bill regardless of unresolved questions unless agreement to an unresolved question is necessary to enable further questions to be considered. If progress cannot be made, the Federation Chamber shall return the bill to the House for further consideration.
2.67
If a bill is reported with amendment(s) or unresolved question standing order 153 requires that the matter shall be dealt with in the following order (emphasis added):
i.
A separate question shall be proposed on each unresolved question and each shall be open to amendment or debate.
ii.
A single question shall be proposed, if necessary –
That the amendments made by the Federation Chamber be agreed to.
The question must be decided without amendment or debate.
iii.
New amendments may only be moved as a consequence of the resolution by the House of any unresolved question.
iv.
The question shall be proposed – That the bill [as amended] be agreed to. The question must be decided without amendment or debate.
Committee comment
2.68
In circumstances where a Minister has spoken again to close the second reading debate on a bill in the Federation Chamber, and the bill is reported to the House with an unresolved question, the current wording in standing order 153 provides an opportunity to reopen the second reading debate in the House. The Committee therefore recommends amending standing order 153 to remove the provision for unresolved questions to be open to amendment and debate once returned to the Chamber.
2.69
The Committee recommends that standing order 153(b) be amended to read:
(b) If a bill is reported with amendment or unresolved question, matters shall be dealt with in the following order:
(i) A separate question shall be proposed on each unresolved question and each shall be open to amendment or debate.
(ii) A single question shall be proposed, if necessary—
That the amendments made by the Federation Chamber be agreed to.
The question must be decided without amendment or debate.
(iii) New amendments may only be moved as a consequence of the resolution by the House of any unresolved question.
(iv) The question shall be proposed—
That the bill [as amended] be agreed to.
The question must be decided without amendment or debate.
Standing order 197 – Return of matters to the House
Return of item by Minister
2.70
Prior to 2013, matters could be returned to the House from the Federation Chamber (formerly the Main Committee) by way of a motion moved without notice by any Member. At the commencement of the 44th Parliament, Standing Order 197 was amended so that such a motion could only be moved by a Minister.
2.71
The practical effect of the amendment is that a Minister must be present to propose the return of an item of business to the House, otherwise another Member must be granted leave to move the motion. This creates an additional and, in the Committee’s view, unnecessary procedural step, particularly given that it is common for the Federation Chamber to conduct proceedings with no Minister present. By way of example, there have been eight occasions during the current Parliament where matters have been returned to the House, seven of which had no Minister present and so a Government Member was required to seek leave prior to moving the motion.
2.72
It appears to be unnecessary for a Minister to be required to move this motion and it may assist in the smooth flow of business between the Federation Chamber and the House if any Member could move to return items to the House.
Committee comment
2.73
The Committee believes that the provision in standing order 197 for any Member to move without notice at any time to return an item to the House should be reinstated.
2.74
It is possible that this amendment could open Federation Chamber business to diversionary or disruptive tactics, where Members return matters purely to delay proceedings or move business back to the House unnecessarily.
2.75
However, the Committee feels that the intentions of Members should be taken in the best light possible and support for the smooth operation of the Federation Chamber should be prioritised over the unlikely potential for tactical disruption.
2.76
The Committee recommends that standing order 197 be amended to read:
197Return of matters to the House
The Federation Chamber may return a matter to the House before its consideration is completed:
(a) A matter may be returned to the House on a motion moved without notice at any time by a Minister Member—
That further proceedings be conducted in the House.
The motion shall be put without amendment or debate. If the Federation Chamber agrees to, or is unable to resolve, this question, the bill or order of the day shall be returned to the House. Consideration in the House must continue from the point reached in the Federation Chamber and the House must resolve any issues that the Federation Chamber reports.
(b) The House may at any time require a matter to be returned for further consideration, on a motion moved without notice by a Minister Member. The matter must be set down for consideration at a later hour that day.
(c) An item of government business may be returned to the House by a programming declaration made in accordance with standing order 45.
Clerk’s amendments
2.77
The following two amendments are considered to be clerical errors or consequential inconsistencies in wording in the standing orders, and as such will be communicated to the Clerk of the House as suggestions for possible Clerk’s amendments.
Standing order 2 – Definition of ‘document’
2.78
Currently the definition of a document in standing order 2 is an almost direct mirror of the definition in the Acts Interpretation Act 1901, being:
document means any record of information, and includes:
(a) anything on which there is writing; and
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and
(d) a map, plans, drawing or photograph.
2.79
However, the definition in section 2B of the Acts Interpretation Act 1901 refers to ‘plan’ rather than ‘plans’ in paragraph (d). A small typographical correction as a Clerk’s amendment will align the standing orders with the legislation.
2.80
The Committee recommends that the definition of ‘document’ in standing order 2 be corrected to match the definition in section 2B of the Acts Interpretation Act 1901.
Standing order 80 – Closure of a Member speaking
2.81
A Member may move closure to another Member’s speech (That the Member be no longer heard) at any time, with a few exceptions. This order is interpreted as applying to the speech currently in progress and doesn’t prevent speaking again on the same question (such as in consideration in detail), where allowed for by the standing orders. Standing order 80 provides that any Member may move that a Member who is speaking, except a Member giving a notice of motion or moving the terms of a motion, be no longer heard. If the question is agreed to, the Member speaking must immediately resume his or her seat.
2.82
The reference to a Member giving a notice of motion is redundant and should be removed as a Clerk’s amendment, as provision for a Member to give an oral notice of motion whilst speaking in the Chamber was removed from standing order 106 in 2008.
2.83
The Committee recommends that standing order 80 be amended to read:
80Closure of a Member speaking
If a Member is speaking, other than when giving a notice of motion or moving the terms of a motion, another Member may move—
That the Member be no longer heard.
The question must be put immediately and resolved without amendment or debate.