Private Members’ business
A private Member is defined by the standing orders as a Member other than the Speaker or a Minister.[26] This definition, indirectly, provides additional opportunities to opposition leaders.[27]
During the private Members’ business period notices and orders of the day relating to private Members’ business are called on by the Clerk in the order in which they appear on the Notice Paper—that is, as previously determined by the Selection Committee. Standing and sessional orders have been suspended to allow other Members to move motions in the absence of the Members who had given notices accorded priority,[28] although leave may be sufficient for this.[29] Priority must be given to notices of intention to present private Members’ bills.[30] Subject to this requirement, the Selection Committee must provide for the consideration of private Members’ notices to alternate between those of government and non-government Members.[31]
A Member may withdraw a notice of motion or of intention to present a bill even though it has been accorded priority,[32] and may alter the date in respect of which a notice has been given after it has been given priority.[33]
Removal of private Members’ business from the Notice Paper
An item of private Members’ business which has not been called on for eight consecutive sitting Mondays is removed from the Notice Paper.[34] However, an item removed from the Notice Paper in this way can be reinstated by means of a new notice.
Consideration in government time
From time to time, standing orders are suspended to permit specified items of private Members’ business to be called on and considered during government business time. This course has been taken to permit immediate consideration of a matter of which notice has just been given, such as a censure or no confidence motion,[35] to initiate debate on a matter of particular significance to the Parliament[36] or to the community[37] or to bring on a matter when the time factor is significant, such as a motion for the disallowance of delegated legislation (regulations, ordinances, and so on),[38] in order to enable a vote to be taken (see page 794) or to enable a matter to be disposed of expeditiously.[39] Such action may also be taken when the Government has decided to support a private Member’s bill, to provide time for further debate and facilitate speedy passage.[40]
A suspension of standing orders for any of these purposes is usually a government initiative and attempts by private Members alone to obtain precedence to a particular item of business without government support have invariably been unsuccessful.
Selection Committee determinations do not apply to items being taken in government time, and unless otherwise ordered the ‘normal’ times provided elsewhere in standing order 1 apply. In the case of a motion this is 20 minutes for the mover of the motion and 15 minutes each for other Members. In the case of a private Member’s bill, the mover of a motion for the second reading may speak for 30 minutes, and other Members ‘leading’ for the Government or the Opposition may also speak for 30 minutes, with any other Member able to speak for 15 minutes.[41]
Voting on private Members’ business
When an item of private Members business is to be voted on, it has been the practice in the past for the vote to take place in government business time, following the suspension of standing orders.[42] This practice was continued when, in the 43rd Parliament, express provision was made for the Selection Committee to recommend items of private Members’ business to be voted on.[43]
To date the practice has been for the Leader of the House, during government business time on Thursday morning, to move a motion without notice to suspend standing orders in order to call on immediately specified private Members’ orders of the day—the items specified being items recommended by the Selection Committee to be voted on.[44]
Private Members’ motions
The procedures applying to the moving of motions are described in the Chapter on ‘Motions’. The procedures for private Members’ motions are the same as for motions moved by a Minister except that motions are required to be seconded. The time for each debate and for each Member speaking is set by the Selection Committee—for example, the mover of a motion and the Member next speaking may be allotted 10 minutes each, and other Members five minutes each.[45] Amendments are sometimes moved to private Members’ motions.[46]
By decision of the Selection Committee, the usual practice is that motions considered during the time available under the private Members’ business provisions are not voted on at that time, the debate being adjourned and made an order of the day for the next sitting (in practice, usually a subsequent private Members’ day). When the Selection Committee has determined that debate on a motion should continue on a future day, the motion cannot be voted on (unless standing orders are suspended[47]), and for that reason the debate cannot be closured.[48]
When the Selection Committee selects a private Members’ motion to be voted on the practice has been for it to be called on outside of the times reserved for private Members’ business—see above. Some private Members’ motions brought before the House involve issues of social and/or moral significance, often referred to as matters of conscience, such as euthanasia, abortion or homosexuality,[49] or issues concerning the parliamentary institution. By arrangement within the parties, when such motions have been voted on these have generally been decided by a free vote or conscience vote.[50] Outright government support for a private Member’s motion, in its original form, is less common when the motion is put forward by an opposition Member.[51] However, since regular opportunities for votes to occur on private Members’ motions became available in the 43rd Parliament (see above) the practice has developed of Members moving to amend their own motions immediately prior to the vote, with a view to making their terms more acceptable to Members on both sides of the House and thus increasing the chances of agreement.[52]
If a private Member’s motion is agreed to, the Government does not necessarily consider itself bound by its terms. For example, in 1965 the House agreed to the following motion:
That as the Canberra Advisory Council is but part elected and believing that the citizens of Canberra have a right to say whether or not they want fluoridation of their water supply this House is of opinion that a referendum on the question should be held.[53]
No action was taken by the Government in the terms of the resolution.[54]
Private Members’ bills
The procedures which apply to the processing of private Members’ bills are substantially the same as those for government bills described in the Chapter on ‘Legislation’. Upon the respective notice being called on by the Clerk, the Member in whose name the notice stands[55] presents the bill and may speak to it for no longer than ten minutes.[56] The Member may present an explanatory memorandum on the bill and leave is not required for this.[57] The bill is then read a first time and the motion for the second reading set down on the Notice Paper for the next sitting.[58] In the Federation Chamber, the bill having already been presented, the Member speaks for ten minutes when the order of the day for the first reading is called on.[59]
The occasion for the moving and consideration of the bill’s second reading, and the times to be allocated for debate, are matters for the Selection Committee.[60] When the sponsor of a private Member’s bill has not been available another Member has moved the second reading on his behalf.[61]
Although there is no exemption from the requirement in the standing orders concerning the seconding of motions for a motion for the second or third reading of a bill moved by a private Member, in practice a seconder is called for only on the second reading when the principles of the bill are under consideration.[62] If a private Member’s bill passes the second reading stage, a seconder is not called for when motions such as that for the third reading are moved, the House having already affirmed its support for the bill.[63]
If the Selection Committee has recommended that the bill be voted on, the practice has been that the vote occurs during government business time following the suspension of standing orders—see page 794. The recommendation is taken to apply to all stages of the bill. If the motion for the second reading of any private Member’s bill is agreed to by the House, further consideration is accorded priority over other private Members’ business and the Selection Committee may determine times for consideration of the remaining stages of the bill.[64] The consideration in detail stage may then take place during private Members’ business time in the Federation Chamber, with voting on amendments (and the third reading) occurring later in the House at the time other items of private Members’ business are voted on.[65] Private Members’ bills have been referred to committees for advisory reports.[66]
As with private Members’ motions, private Members’ bills have sometimes related to matters of social and/or moral significance, such as euthanasia[67] and superannuation entitlements of same-sex couples.[68] The extent of government support in respect of successful private Members’ bills has varied. In the case of the Matrimonial Causes Bill 1955, the Member who initiated the bill remained in charge of it through all stages in the House.[69] In the case of the National Measurement (Standard Time) Amendment Bill 1991, the Member who initiated the bill having moved the second reading, a Parliamentary Secretary moved the third reading.[70] In the case of the Parliament Bill 1974, the Member who initiated the bill having moved the second reading, another Member moved the third reading. The bill was amended at the committee (consideration in detail) stage on the motion of a Minister.[71] On the bill being returned from the Senate with amendments, it was taken over by the Government and was listed on the Notice Paper under government business.[72]
When a private Member’s bill has passed the House and been transmitted to the Senate, its sponsorship in the Senate may be by either a private Senator[73] or a Minister in the Senate.[74] Similarly, private Members[75] and Ministers[76] have taken responsibility for private Senators’ bills when they have been received in the House. A private Member takes responsibility for a private Senator’s bill by moving, on the occasion of the bill’s first reading in the House, that the second reading be made an order of the day for the next sitting. The bill is then listed on the Notice Paper under Private Members’ business. If a Minister moves this motion the bill is listed as government business.[77] The principles adopted by the House to guide the Selection Committee in respect of private Members’ business include a provision that when a private Member has responsibility for the carriage of a bill transmitted from the Senate, the bill is to be accorded priority (following the question for the second reading being put to the House) in the same way as a private Member’s bill is accorded priority by standing order 41(e).[78]
In 2011 Senate amendments to a private Member’s bill were reported during government business time and the motion that the amendments be considered immediately was moved by a Minister; however, the subsequent motion that the House agree to the amendments was moved by the Member who had initiated the bill.[79]
The term ‘private Member’s bill’ should not be confused with the term ‘private bill’. Private bills, as known in the United Kingdom, conferring powers or benefits on individuals or bodies of persons, do not feature in the Australian Parliament.
Drafting
House staff are the first source of assistance to private Members in drafting matters. The assistance of a consultant drafter has been obtained in cases of particular difficulty or technical complexity, or when there is high demand. Private Members have traditionally also had some access to the Office of Parliamentary Counsel for help in such matters, although the primary and overriding priority of that office is to serve the Government. Any dealings between a Member and a parliamentary drafter are confidential. In 1975 private Members’ access to assistance from Office of Parliamentary Counsel drafters was an issue on which the House and the Senate could not agree. The Senate amended the Parliamentary Counsel Bill 1975 to provide that a section of not less than two professional staff from the Office of Parliamentary Counsel be seconded to draft proposed laws, amendments and instruments at the request of private Members of Parliament in priority to services for Ministers.[80] The House disagreed to the amendment in view of the fact that the existing arrangements were considered to be more satisfactory to Members and the Government than the arrangements proposed.[81] Each House stood its ground and the bill was finally laid aside.[82]
In 1905 the Life Assurance Companies Bill, a private Member’s bill which had been passed by the House in 1904, was passed by the Senate and sent to the Governor-General for assent. The Governor-General returned the bill recommending amendments. Commenting on the proposed amendments the Minister indicated that they were ‘purely verbal’ and did not affect the purpose of the bill. He pointed out that the initiator of the bill had not had the Parliamentary Draftsman’s assistance in drafting it and had not understood the full significance of certain words he had used in the bill.[83]
While every effort is made to meet Members’ requests for the drafting of bills, such requests cannot always be met. The constraints imposed by the Constitution—in respect of proposals with financial implications (see below), the limits on the law-making powers of the Commonwealth Parliament, and the implications of section 109—and the rules and practices of the House combine to limit the range of subjects on which private Members may introduce bills. Although the freedom apparently available to members of some other legislatures is therefore not enjoyed by Members of the House, another consequence is that legislative proposals which are introduced in the House all have a certain status.[84] Members often give notice of private Members’ motions to advance proposals not suitable for inclusion in a bill, and this course has the advantage of allowing Members greater freedom to express their intentions.
Financial initiative
A private Member may not initiate a bill imposing or varying a tax or requiring the appropriation of revenue or moneys. This would be contrary to the constitutional and parliamentary principle of the financial initiative of the Executive—that is, that no public charge can be incurred except on the initiative of the Government. This principle and its significance is discussed more fully in the Chapter on ‘Financial legislation’.
The financial initiative in regard to appropriation is expressed in section 56 of the Constitution, and is extended in standing order 180 as follows:
- All proposals for the appropriation of revenue or moneys require a message to the House from the Governor-General recommending the purpose of the appropriation in accordance with section 56 of the Constitution.
- For an Appropriation or Supply Bill, the message must be announced before the bill is introduced.
- For other bills appropriating revenue or moneys, a Minister may introduce the bill and the bill may be proceeded with before the message is announced and standing order 147 (message recommending appropriation) applies.
- A further message must be received before any amendment can be moved which would increase, or extend the objects and purposes or alter the destination of, a recommended appropriation.
In the application of this standing order, a proposed increase in expenditure funded by an existing appropriation is considered to be a proposal for an appropriation, requiring a message from the Governor-General. The same applies to a proposed change to the objects and purposes or destination of an existing appropriation.
It would not be possible for a private Member to obtain the Governor-General’s recommendation for an appropriation. Furthermore, of those bills requiring a Governor-General’s message, only those brought in by a Minister may be introduced and proceeded with before the message is announced. Therefore, only a Minister may bring in a bill which appropriates public moneys.[85]
The financial initiative in regard to taxation, which restricts private Members from initiating taxing bills, is expressed in, and given effect by, standing order 179:
Only a Minister may initiate a proposal to impose, increase, or decrease a tax or duty, or change the scope of any charge. Only a Minister may move an amendment to the proposal which increases or extends the scope of the charge proposed beyond the total already existing under any Acts of Parliament. A Member who is not a Minister may move an amendment to the proposal which does not increase or extend the scope of the charge proposed beyond the total already existing under any Acts of Parliament.
In 1988, following presentation of an Income Tax Assessment Amendment Bill initiated by a private Member, the Chair noted that the bill sought to restore an earlier interpretation of a provision of the Act. The Chair understood that the bill did not seek to increase or alleviate tax, although it could be argued that a reduction would occur in the sum a person might pay because of the restored interpretation. The Chair stated that it was felt appropriate to permit the Member to initiate the proposal, although its validity in procedural terms was not clear.[86] Private Members’ bills have sought to amend the Customs and Excise Tariff Acts to introduce mechanisms by which a decrease in duty could be effected by subsequent parliamentary action.[87] In 2002 a private Member’s bill made provision for the Taxation Commissioner to assess certain amounts, which were stated in the objects clause of the bill as intended to be used in the calculation of a tax to be imposed and administered by another Act; and in the calculation of increased expenditure to be appropriated by another Act.[88] In the same year, having introduced a bill providing for the assessment and collection of a levy, a Member presented as a document a copy of a proposed companion bill providing for the imposition of the levy.[89]
A motion proposing to suspend standing orders to permit a private Member to move to increase the scope of a proposed tax has been ruled out of order, as it would allow an action contrary to a fundamental principle of the scheme of government established by the Constitution.[90]
Impact
Bills initiated by private Members are a small proportion of the legislation dealt with by the House, although the introduction of new procedures for private Members’ business in 1988 saw a significant increase in their number. Private Members introduced 59 bills between 1901 and 1987. This figure had doubled within the next 5 years. Between 1988 and June 2010 about 10 private Members’ bills per year, on average, were introduced. The revised procedures introduced at the start of the 43rd Parliament led to a further increase (21 introduced during 2011).
Table 16.1 lists all private Members’ bills which have passed into law since Federation. By mid 2012, twenty five non-government bills had passed into law—nine initiated by private Members, eleven by private Senators and five by the Speaker and the President. In addition, the provisions of other private Members’ bills have become law by being incorporated into government legislation.
Some notable examples of legislation passed by the Parliament have resulted from the actions of private Members or Senators, for example:
- In 1924 the Electoral (Compulsory Voting) Bill, which introduced compulsory voting at Federal elections, was initiated in the Senate by a private Senator, and when transmitted to the House was sponsored by a private Member.
Table 16.1 Private Members’ bills passed into law
Bill
| Initiator
|
Life Assurance Companies 1904 (Lapsed in Senate at second reading stage; proceedings resumed in Senate in 1905—Act No. 12 of 1905)
| Mr L. E. Groom
|
Conciliation and Arbitration 1908 (Lapsed in Senate at committee stage; proceedings resumed in Senate in 1909—Act No. 28 of 1909)
| Senator Needham*
|
Electoral (Compulsory Voting) 1924 (Act No. 10 of 1924)
| Senator Payne
|
Defence (No.2) 1939 (Act No. 38 of 1939)
| Mr Curtin
|
Supply and Development (No. 2) 1939 (Act No.40 of 1939)
| Mr Curtin
|
Matrimonial Causes 1955 (Act No. 29 of 1955)
| Mr Joske
|
Australian Capital Territory Evidence (Temporary Provisions) 1971 (Act No. 66 of 1971)
| Senator Murphy*
|
Parliament 1974 (Act No. 165 of 1974)
| Mr L. K. Johnson
|
Wireless Telegraphy Amendment 1980 (Act No. 91 of 1980)
| Senator Rae
|
Senate Elections (Queensland) 1982 (Act No. 31 of 1982)
| Senator Colston
|
Income Tax Assessment Amendment 1984 [No. 2] (Act No. 115 of 1984—assented to as Income Tax Assessment Amendment (No. 5) 1984)
| Senator Evans*
|
Smoking and Tobacco Products Advertisements (Prohibition) 1989 (Act No. 181 of 1989)
| Senator Powell*
|
Parliamentary Presiding Officers Amendment 1992 (Act No. 163 of 1992)
| Senator Colston*
|
Euthanasia Laws 1997 (Act No. 17 of 1997)
| Mr K. J. Andrews
|
Adelaide Airport Curfew 1999 (Act No. 29 of 2000)
| Mrs Gallus
|
Therapeutic Goods Amendment (Repeal of Ministerial responsibility for approval of RU486) 2006 (Act No. 5 of 2006)
| Senator Nash
|
Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment 2006 (Act No. 172 of 2006)
| Senator Patterson
|
Evidence Amendment (Journalists’ Privilege) 2011 (Act No. 21 of 2011)
| Mr Wilkie
|
Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) 2011 (Act No. 166 of 2011)
| Senator Brown
|
Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) 2011 (Act No. 182 of 2011)
| Mr Bandt
|
* sponsored by the Government in the House of Representatives.
- In 1957 a private Member initiated in the House the Matrimonial Bill to provide for uniform divorce laws. The bill passed the second reading but then lapsed. The objects of the measure were incorporated in the Government’s Matrimonial Causes Bill which was passed in 1959.[91]
- In 1974 a private Member introduced the Parliament Bill which was similar to a bill previously introduced by a private Senator which had lapsed after the first reading stage in the Senate. The bill’s primary purpose was to determine the site of the new Parliament House, an issue which had defied final resolution for many years. The 1974 bill ultimately passed both Houses, in an amended form, and became law.
- The Government’s Industrial Relations Legislation Amendment Bill (No. 2) of 1992 included provisions to amend the Conciliation and Arbitration Act 1904 in respect of a matter addressed in a private Member’s bill introduced three times between 1990 and 1992.[92]
- In 1995 the Parliament passed the Anzac Day Bill 1994. This bill was initiated by the Government, but the Government’s actions followed the actions of one private Member in moving a motion on the subject and of another in preparing and giving notice of his intention to introduce a private Member’s bill.[93]
- In 1995 the Parliament passed the Government’s Sydney Airport Curfew Bill 1995, which took up in amended form the objects of a private Member’s bill, the Sydney Airport Curfew (Air Navigation Amendment) Bill 1995,[94] after a report on that bill by the Standing Committee on Transport, Communications and Infrastructure.
- In 2002 the government-sponsored Superannuation Guarantee Charge Amendment Bill was enacted. This made compulsory superannuation contributions payable quarterly, a matter originally proposed by a private Member’s bill.[95]
- In 2011 the government Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Bill incorporated principles of a private Member’s bill on the same matter which had been introduced by the Leader of the Opposition.[96]
Table 16.2 Bills sponsored by the Speaker and passed by House
|
Bill
| Initiator in House
|
Parliamentary Privileges 1987 Passed into law (Act No. 21 of 1987).
| Speaker Child
|
Public Service (Parliamentary Departments) Amendment 1988 Passed House only.
| Speaker Child
|
Public Service (Parliamentary Departments) Amendment 1993 Passed House only.
| Speaker Martin
|
Parliamentary Service 1997 Passed both Houses (amended in Senate). House did not agree to Senate amendments; bill laid aside.
| Speaker Halverson
|
Parliamentary Service (Consequential Amendments) 1997 Passed into law (Act No. 189 of 1997).
| Speaker Halverson
|
Parliamentary Service 1997 [No. 2] Passed both Houses (amended in Senate). House did not agree to Senate amendments; bill laid aside.
| Speaker Sinclair
|
Parliamentary Service 1999 Passed into law (Act No. 145 of 1999).
| Speaker Andrew
|
Parliamentary Service Amendment 2001 Passed into law (Act No. 125 of 2001)
| Speaker Andrew
|
Parliamentary Service Amendment 2005 Passed into law (Act No. 39 of 2005)
| Speaker Hawker
|
- The government Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 followed the Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bills 2005 and 2010, bills introduced with a similar aim by a private Member in earlier Parliaments.[97]
- The government Australian Citizenship Amendment (Defence Families) Bill 2012 followed the Australian Citizenship Amendment (Defence Service Requirement) Bill 2012, a private Member’s bill dealing with the same matter.
One of the more significant non-government bills from a parliamentary point of view was the Parliamentary Privileges Bill which was assented to in 1987, having been sponsored by President McClelland and Speaker Child.[98] Other bills introduced by the Presiding Officers have related to the administration of the Parliament. In 1999 the Parliamentary Service Bill, which had been presented by Speaker Andrew, was assented to. It provided a new legislative framework for the parliamentary departments and paralleled changes sponsored by the Government in respect of the public service generally.