Chapter 10 Legislation
The Constitution vests the legislative power of the Commonwealth in the Federal Parliament, consisting of the Queen represented by the Governor-General, the Senate and the House of Representatives.1
The making of a law may be subject to complicated parliamentary and constitutional processes but its final validity as an Act of Parliament is dependent upon the proposed law being approved in the same form by all three elements which make up the Parliament.2
The Parliament has power to make laws for the peace, order and good government of the Commonwealth with respect to those matters defined by section 51 of the Constitution. Other constitutional provisions extend, limit, restrict or qualify this power, so that a full understanding of the Parliament’s legislative power can only be gained from the Constitution as a whole. The Constitution in its wording concentrates on the Parliament’s legislative power and does not detail in the same manner Parliament’s other areas of jurisdiction and functions of substantial importance.3
The Constitution contains certain provisions which affect a Parliament’s legislative process, for example, the provisions relating to:
Another constitutional provision of direct relevance to the legislative process is section 50 which grants each House of the Parliament the power to make rules and orders with respect to the order and conduct of its business and proceedings and which, for the purposes of this chapter, gives authority for the standing orders which prescribe the procedures to be followed in the introduction and passage of bills.
The normal flow of the legislative process is that a bill4 (a draft Act, or, in the terminology of the Constitution, a proposed law) is introduced into one House of Parliament, passed by that House and agreed to (or finally agreed to when amendments are made) in identical form by the other House. At the point of the Governor-General’s assent a bill becomes an Act of the Parliament.5(The legislative process is presented in diagrammatic form on the back inside cover.)
In the House of Representatives all bills are treated as ‘public bills’—that is, bills relating to matters of public policy. The House of Representatives does not recognise what in the United Kingdom and some other legislatures are called ‘private bills’6—that is, bills for the particular interest or benefit of any person or persons, public company or corporation, or local authority. Hence there is also no recognition of what are termed ‘hybrid bills’—that is, public bills to which some or all of the procedures relating to private bills apply.7
On average, more than 200 bills have been introduced into the Parliament each year in recent years. Of these roughly 90 per cent have usually originated in the House of Representatives.8 Approximately 70 per cent of all bills introduced into the Parliament finally become Acts.9 The consideration of legislation takes up some 50 per cent of the House’s time.
Provided the rules relating to initiation procedures are observed any Member of the House may introduce a bill. Until more recent times there were only limited opportunities for private Members to introduce bills, but in 1988 new arrangements were adopted and more opportunities became available (see Chapter on ‘Non-government business’).
Form of bill
The content of a bill is prepared in the exact form of the Act it is intended to become. Bills usually take the form described below, although it should be noted that not all the parts are essential to every bill. The parts of a bill appear in the following sequence:
Every bill begins with a long title which sets out in brief terms the purposes of the bill or may provide a short description of the scope of a bill. The words commencing the long title are usually either ‘A Bill for an Act to . . .’ or ‘A Bill for an Act relating to . . .’. The term ‘long title’ is used in distinction from the term ‘short title’ (see p. 338). A procedural reference to the ‘title’ of a bill, without being qualified, may be taken to mean the long title. The long title is part of a bill and as such is capable of amendment10 and must finally be agreed to by each House. The long title of a bill is procedurally significant. Standing orders require that the title of a bill must agree with its notice of presentation, and every clause must come within the title.11 In 1985 and 2002 bills were withdrawn when it was discovered that the long title on the introduced copy was different from the notice—immediately afterwards replacement bills with the correct long title were presented by leave.12 In 1984 a bill was withdrawn as not all the clauses fell within the scope of the bill as defined in the long title.13 Difficult questions can arise in this area.14 A long title which is specific and limited in scope is known as ‘restricted’, and one which is wide in scope as ‘unrestricted’. This distinction has significance in relation to relevance in debate on the bill (see p. 355) and to the nature of amendments which can be moved to the bill (see p. 367).
Like the long title, a preamble is part of a bill, but is a comparatively rare incorporation. The function of a preamble is to state the reasons why the enactment proposed is desirable and to state the objects of the proposed legislation.
The Australia Act 1986 contains a short preamble stating that the Prime Minister and State Premiers had agreed on the taking of certain measures (as expressed in the Act’s long title) and that in pursuance of the Constitution the Parliaments of all the States had requested the Commonwealth Parliament to enact the Act.15 The Norfolk Island Act 1979, the Native Title Act 1993, and the Natural Heritage Trust of Australia Act 1997 are examples of Acts with longer preambles.
Some bills contain objects or statement of intention clauses, which can serve a similar purpose to a preamble—see for example clause 3 of the Space Activities Bill 1998.16 Section 15AA of the Acts Interpretation Act 1901 provides that in the interpretation of an Act a construction that would promote the purpose or object underlying the Act, whether expressly stated or not, must be preferred (and see p. 406).
This is a short paragraph which precedes the clauses of a bill. The current words of enactment are as follows:
‘The Parliament of Australia17 enacts:’
The words of enactment have changed several times since 1901. Prior to October 1990 they were:
‘BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:’
Commenting on the original enacting formula, Quick and Garran stated:
In the Constitution of the Commonwealth the old fiction that the occupant of the throne was the principal legislator, as expressed in the [United Kingdom] formula, has been disregarded; and the ancient enacting words will hereafter be replaced by words more in harmony with the practice and reality of constitutional government. The Queen, instead of being represented as the principal, or sole legislator, is now plainly stated [by section 1 of the Constitution] to be one of the co-ordinate constituents of the Parliament.18
Clauses may be divided into subclauses, subclauses into paragraphs and paragraphs into subparagraphs. Large bills are divided into Parts which may be further divided into Divisions and Subdivisions.19 When a bill has become an Act—that is, after it has received assent—clauses are referred to as sections.
The short title is a convenient name for the Act, a label which assists in identification and indexing.20 Clause 1 of a bill usually contains its short title, and this clause describes the measure in terms as if the bill had been enacted, for example, ‘This Act may be cited as the21 Crimes at Sea Act 1999’. Since early 1976 a bill amending its principal Act or other Acts has generally included the word ‘Amendment’ in its short title. When a session22 of the Parliament extends over two or more calendar years and bills introduced in one year are not passed until an ensuing year, the year in the citation of the bill is altered to the year in which the bill finally passes both Houses. This formal amendment may be effected before transmission to the Senate after the passing of the bill by the House (when there may be a need to reprint the bill because it has been amended by the House) or before forwarding for assent.
It is not uncommon for more than one bill, bearing virtually the same short title, to be introduced, considered and enacted during the same year.23 In this situation the second bill and subsequent bills are distinguished by the insertion of ‘(No. 2)’, ‘(No. 3)’, and so on, before the year in the short title.24 Bills dealing with matters in a common general area may be distinguished with qualifying words contained in parenthesis within the short title.25 In both these cases the distinguishing figures or words in the short title flow to the Act itself and its citation.
On other occasions a bill may, for parliamentary purposes, carry ‘[No. 2]’ after the year of the short title to distinguish it from an earlier bill of identical title. This is so, for example, when it is known that the earlier bill will not further proceed in the parliamentary process to the point of enactment or when titles are expected to be amended during the parliamentary process.26 This distinction in numbering also becomes necessary for bills subject to inter-House disagreement, in the context of the constitutional processes required by sections 57 and 128 of the Constitution.
In most cases a bill contains a provision as to the day from which it has effect. Sometimes differing commencement provisions are made for various provisions of a bill—when this is the case modern practice is to set the details out in a table. Where a bill has a commencement clause, it is usually clause 2, and the day on which the Act comes into operation is usually described in one of the following ways:
- the day on which the Act receives assent;
- a date or dates to be fixed by proclamation (requiring Executive Council action). The proclamation must be published in the Gazette. This method is generally used if it is necessary for preparatory work, such as the drafting of regulations, to be done before the Act can come into force. Proclamation may be dependent on the meeting of specified conditions;27
- a particular date (perhaps retrospective) or a day of a stipulated event (e.g. the day of assent of a related Act); or
- a combination of the above (e.g. sections/schedules 1 to 6 to come into operation on the day of assent, sections/schedules 7 to 9 on a date to be proclaimed).28
Unusual commencement dates have included:
- the day after the day on which both Houses have approved regulations made under the Act;29
- a ‘designated day’, being a day to be declared by way of a Minister’s statement tabled in the House.30
Since 1989 it has been the general practice with legislation commencing by proclamation for commencement clauses to fix a time at which commencement will automatically take place, notwithstanding non-proclamation. Alternatively, the commencement clause may fix a time at which the legislation, if not proclaimed, is to be taken to be repealed.31
In the absence of a specific provision, an Act comes into operation on the 28th day after the day on which the Act receives assent.32 This period acknowledges the principle that it is undesirable for legislation to be brought into force before copies are available to the public. Modern practice is to include an explicit commencement provision in each bill. Acts to alter the Constitution, unless the contrary intention appears in the Act, come into operation on the day of assent.
An Act may have come into effect according to its commencement clause, yet have its practical operation postponed, for example pending a date to be fixed by proclamation.33 It is also possible for provisions to operate from a day to be declared by regulation. As regulations are subject to potential disallowance by either House, this practice may not commend itself to Governments. The Australia Card Bill 1986, having passed the House, was not further proceeded with following the threat of such a disallowance in the Senate.34
When provisions of a bill are contained in a schedule to the bill (see p. 340), they are given legislative effect by a provision in a preceding clause. Current practice is for the insertion of an ‘activating’ clause at the beginning of the bill (usually clause 3) providing that each Act specified in a schedule is amended or repealed as set out in the schedule and that any other item in a schedule has effect according to its terms.
A definitions or interpretation clause, traditionally located early in the bill, sets out the meanings of certain words in the context of the bill. Definitions may also appear elsewhere in a bill and for ‘amending’ bills will be included in schedules. At the end of some bills there may be a ‘dictionary’ clause defining asterisked terms cited throughout the bill.
Traditionally, the substantive provisions of bills were contained in the remaining clauses. This is still the practice in respect of ‘original’ or ‘parent’ legislation. In the case of bills containing amendments to existing Acts, the modern practice is to have only minimal provisions in the clauses (such as the short title and commencement details) and to include the substantive amendments in one or more schedules.
Historically schedules have been used to avoid cluttering a bill with detail or with material that would interfere with the readability of the clauses. In earlier times amending bills commonly included schedules setting out amendments that, because of their nature, could more conveniently be set out in a schedule rather than in the clauses of a bill. During the 37th Parliament the practice started of including in schedules all amendments to existing Acts, whether amendments of substance or of less important detail. Office of Parliamentary Counsel Drafting Direction No. 1 of 1996 made it the standard practice in respect of government bills for all amendments and repeals of Acts to be made by way of numbered items in a schedule. Other items may be included in an amending/repealing schedule (e.g. transitional provisions). Other examples of the types of material to be found in schedules are:
- the text of a treaty to be given effect by a bill;
- a precise description of land or territory affected by a bill; and
- detailed rules for determining a factor referred to in the clauses (for example, technical material in a bill dealing with the construction of ships and scientific formulas in a bill laying down national standards).
While a schedule may be regarded as an appendix to a bill, it is nevertheless part of the bill, and is given legislative effect by a preceding clause (or clauses) within the bill. Schedules are referred to as ‘Schedule 1’, ‘Schedule 2’, and so on.
Bills may also contain or be accompanied by the following documentation which, although not part of the bill and not formally considered by Parliament, may be taken into account by the courts, along with other extrinsic material, in the interpretation of an Act (see p. 406):
Table of contents
Since 1995 a table of contents has been provided for all bills.35 This table lists section/clause numbers and section/clause headings under Part and Division headings. The Table of Contents remains attached to the front of the Act.
Headings and notes
Marginal notes, footnotes, endnotes and clause headings are not taken to be part of the bill. Part, Division and Subdivision headings are deemed to be part of the bill.36
An explanatory memorandum is a separate document presenting the legislative intent of the bill in terms which are more readily understood than the bill itself. A memorandum usually consists of an introductory ‘outline’ of the general purposes of the bill and ‘notes on clauses’ which explain the provisions of each clause. When a number of interrelated bills are introduced together their explanatory memorandums may be contained in the one document. From 1986 it was the practice that an explanatory memorandum was presented to the House by a Minister at the conclusion of the second reading speech. Since 1994 the presentation of explanatory memorandums for all bills presented by Ministers (other than appropriation and supply bills) has been a requirement of the standing orders,37 and the Minister or Parliamentary Secretary presenting the bill has been required to sign the explanatory memorandum. Section 15AB of the Acts Interpretation Act 1901 provides, among other things, that in the interpretation of a provision of an Act, consideration may be given to an explanatory memorandum.38
Back to topBack to top Preparation of bills—the extra-parliamentary process
Government bills usually stem either from a Cabinet instruction that legislation is required (that is, Cabinet is the initiator) or from a Minister with the advice of, or on behalf of, his or her department seeking (by means of a Cabinet submission) approval of Cabinet. The pre-legislative procedure in the normal routine,39 regardless of the source of the legislative proposal, is that within five working days of Cabinet approval for the legislation being received by the sponsoring department, or within 10 working days if Cabinet has required major changes to be made to the original proposals, final drafting instructions must be lodged with the Office of Parliamentary Counsel40 by the sponsoring department. Parliamentary Counsel drafts the bill and arranges for its printing.41
A copy of the draft bill is provided to the sponsoring department for its clearance, in consultation with other interested departments and instrumentalities, and the Minister’s approval. During these processes government party committees may be consulted. The procedures for such consultation vary, depending on the party or parties in government. When a proposed bill is finally settled, Parliamentary Counsel orders the printing of sufficient copies of the bill in the form used for presentation to Parliament and arranges for their delivery under embargo to staff of the House or the Senate. On occasion, when there has been insufficient time for a bill to be printed, Parliamentary Counsel has faxed a copy of the bill to the House, where photocopies have been made for the Minister to present and for circulation to Members.42
The Government’s Legislation handbook states that draft bills and all associated material are confidential to the Government and may not be made public before their introduction to the Parliament, unless disclosure is authorised by Cabinet or the Prime Minister.43 Occasionally the Government may publish a draft bill and explanatory memorandum as an ‘exposure draft’ prior to its introduction to the Parliament.44
The stages through which bills pass are treated in detail in the pages which follow. Procedures for the passage of bills provide for the following stages:
- Initiation (S.O.s 138–140).
- First reading45 (S.O. 141).
- Possible referral to the Main Committee for second reading and consideration in detail stages (S.O. 143(a)).
- Possible referral to a standing or select committee for advisory report (S.O. 143(b)).
- Second reading (S.O.s 142, 145–146).
- Announcement of any message from the Governor-General recommending appropriation (S.O. 147).
- Report from standing or select committee (if bill referred) (S.O. 144).
- Consideration in detail (S.O.s 148–151).
- Report from Main Committee and adoption (for bills referred to Main Committee) (S.O.s 152–153).
- Reconsideration (possible) (S.O. 154).
- Third reading (S.O. 155).
- Transmission to the Senate for concurrence (S.O. 157).
- Transmission46 or return of bill from the Senate with or without amendment or request (S.O.s 158–165).
- Presentation for assent (S.O.s 175–177).
Each of the stages of a bill in the House has its own particular function. The major stages may be summarised as follows:
Initiation: Bills are initiated in one of the following ways:
- On notice—The common method of initiating a bill is by the calling on of a notice of intention to present the bill. The notice is prepared by the Office of Parliamentary Counsel, usually concurrently with the preparation of the bill. The notice follows a standard form:
- I give notice of my intention to present, at the next sitting, a Bill for an Act [remainder of long title].
- The long title contained in the notice must agree with the title of the bill to be introduced. The notice must be signed by the Minister47 who intends to introduce the bill or by another Minister on his or her behalf. As with all notices, the notice of presentation must be given by delivering it in writing to the Clerk at the Table. In addition, in the case of Members other than Ministers, a Member may state its terms to the House during the period for Members’ statements on Mondays.48
- Without notice—In accordance with the provisions of standing order 178, appropriation or supply bills or bills (including tariff proposals) dealing with taxation may be presented to the House by a Minister without notice—see Chapter on ‘Financial legislation’.
- On granting of leave by the House—On occasions a bill may be introduced by the simple granting of leave to a Minister to present the bill.49
- Senate bills—A bill introduced into and passed by the Senate is conveyed to the House under cover of a message transmitting the bill for concurrence. The bill is, in effect, presented to the House by the Speaker’s action of reading the message to the House.
Standing order 138 also provides for initiation by order of the House. This procedure is no longer used.50
First reading: This is a formal stage only. On presentation of a bill the long title only is read immediately by the Clerk, and no question is proposed.51
Second reading: This is the stage primarily concerned with the principle of the legislative proposal. Debate on the motion for the second reading is not always limited to the contents of a bill and may include, for example, reasonable reference to relevant matters such as the necessity for, or alternatives to, the bill’s provisions. Debate may be further extended by way of a reasoned amendment.
Consideration in detail: At this stage, the specific provisions of the bill are considered and amendments to the bill may be proposed or made.
Third reading: At this stage the bill can be reviewed in its final form after the shaping it may have received at the detail stage. When debate takes place, it is confined strictly to the contents of the bill, and is not as wide-ranging as the second reading debate. When a bill has been read a third time, it has passed the House.52
TABLE 10.1 PROCEDURES APPLYING TO DIFFERENT CATEGORIES OF BILLS
|Provisions of Constitution and standing orders relevant to class 1
Major stages followed in respect of class 2
Acts Interpretation Bill, Trade Practices Bill, Parliamentary Papers Bill.
- (a) do not contain words which appropriate the Consolidated Revenue Fund;
- (b) do not impose a tax; and
- (c) do not have the effect of increasing, or altering the destination of, the amount that may be paid out of the Consolidated Revenue Fund under existing words of appropriation in the principal Act to be amended or in another Act.
|Constitution ss. 53, 57, 58, 59, 60.S.O.s 138–164, 174–176.
Initiation on notice of intention to present; sometimes by leave; bills dealing with taxation may be presented without notice.
First reading moved; Clerk reads title; no debate allowed. Second reading moved immediately (usually); Minister makes second reading speech and presents explanatory memorandum; debate adjourned to a future day.
Bill may be referred to Main Committee for remainder of second reading and detail stage, or to a standing or select committee for an advisory report.
Second reading debate resumed; reasoned amendment may be moved; second reading agreed to; Clerk reads title.
Consideration in detail immediately following second reading. Amendments may be made.
( Report by Main Committee to House, if bill referred; House adopts report)
Third reading moved; may be debated; agreed to; Clerk reads title. Message sent to Senate seeking concurrence.
NOTE: Detail stage is often bypassed.
(a) States Grants Bill;
(b) An amending Judiciary Bill to alter the remuneration of Justices as stated in the principal Act.
- (a) contain words which appropriate the Consolidated Revenue Fund to the extent necessary to meet expenditure under the bill; or
- (b) while not in themselves containing words of appropriation, would have the effect of increasing, or altering the destination of, the amount that may be paid out of the Consolidated Revenue Fund under existing words of appropriation in the principal Act to be amended or in another Act.
|Constitution ss. 53, 56.S.O.s 147, 180–182.
Initiation on notice of intention to present, sometimes by leave.
Proceedings same as for ordinary bills except that immediately following second reading—
Message from Governor-General recommending appropriation for purposes of bill is announced and if required in respect of anticipated amendments to be moved during detail stage, a further message for the purposes of the proposed amendment is announced. Subsequent proceedings same as for ordinary bills.
APPROPRIATION AND SUPPLY
Appropriation Bills (No. 1) and (No. 2)
Supply Bills (No. 1) and (No. 2).
|Appropriation Bills appropriating money from the Consolidated Revenue Fund (usually) for expenditure for the year.If necessary, Supply Bills appropriating money from the Consolidated Revenue Fund to make interim provision for expenditure for the year pending the passing of the Appropriation Bills.
||Constitution ss. 53, 54, 56.S.O.s 165, 178, 180(b).
Message from Governor-General recommending appropriation announced prior to introduction. If required a further message for the purposes of proposed amendments is announced prior to consideration in detail.
Initiation without notice.
Proceedings otherwise same as for ordinary bills other than for sequence in detail stage.
Income Tax Bills and Customs and Excise Tariff Bills.
|Bills imposing a tax or a charge in the nature of a tax.
||Constitution ss. 53, 55.S.O.s 165, 178, 179.
Initiation without notice.
Proceedings same as for ordinary bills.
Only Minister may move amendments to increase or extend taxation measures.
NOTE: Governor-General’s message is not required.
Constitution Alteration (Establishment of Republic) 1999.
|Bills to alter the Constitution.
||Constitution s. 128.S.O. 173
Same as for ordinary bills but with additional requirement for bill to be passed by absolute majority.
Same as for ordinary bills.
|Same as for ordinary bills.
||Constitution s. 53.S.O.s 166–171.
Message from Senate reported transmitting bill to House for concurrence.
First reading; second reading moved; debate adjourned.
Subsequent proceedings same as for ordinary bills.
(Senate bills sometimes referred to Main Committee before moving of second reading)
Message sent to Senate notifying House agreement or, if amended, seeking Senate concurrence in amendments.
1. Sections 57 to 60 apply to all categories and standing orders relevant to ordinary bills generally apply to all categories.
2. Regular or normal proceedings.
Stages a House bill goes through
Bills introduced into the House may, for procedural purposes, be described as follows:
- Bills, by which no appropriation is made or tax imposed (‘ordinary’ bills);
- Bills containing special appropriations;
- Appropriation and supply bills;
- Bills imposing a tax or charge;
- Bills to alter the Constitution;
- Bills received from the Senate.
The procedures in the House for all bills have a basic similarity. The passage of a bill is, unless otherwise ordered, always in the stages of first reading, second reading, consideration in detail and third reading. For the purposes of this text procedures common to all classes of bills are described in detail under ordinary bills. As is evident in Table 10.1, significant variations or considerations apply to bills in other categories and they are described when that category is examined.
‘Ordinary’ bills for procedural purposes are those which:
- do not contain words which appropriate the Consolidated Revenue Fund;
- do not have the effect of increasing, or altering the destination of, the amount that may be paid out of the Consolidated Revenue Fund under existing words of appropriation in an Act; and
- do not impose a tax (an ordinary bill may ‘deal with’ taxation without imposing it— see Chapter on ‘Financial legislation’).
Ordinary bills are usually introduced by notice of intention to present or sometimes by leave.53 Ordinary bills ‘dealing with taxation’ may be introduced without notice.54 When the notice of intention to present the bill is called on by the Clerk, the Minister (or Parliamentary Secretary55) in charge of the bill rises and says ‘I present the [short title of bill]’. The Minister then hands a signed56 copy of the bill to the Clerk. This copy becomes the ‘original’ or ‘model’ copy of the bill.
It is the practice of the House that another Minister may present a bill for a Minister who has given notice.57 When the notice is called on by the Clerk, the Minister who is to present the bill rises and says ‘On behalf of the . . . , I present the [short title]’.58
There is no requirement for a Minister (or any Member) introducing a bill to present a printed copy. The standing order requires only that a legible copy signed by the Minister be presented to the House. Nevertheless printed copies are usually available when the bill is introduced.
The Clerk, upon receiving the copy from the Minister and without any question being put,59 formally reads the bill a first time by reading its long title.60 Once a bill is presented, it must be read a first time.61 The long title of the bill presented must agree with the title used in the notice of intention to present, and every clause of the bill must come within its title.62 Any bill presented and found to be not prepared according to the standing orders shall be ordered to be withdrawn.63
Bills have been discharged because:
- the long title did not agree with the long title given on the notice of presentation;64
- several clauses did not come within its long title;65 and
- the long title described in the Governor-General’s message recommending appropriation did not agree with the long title.66
A bill is not out of order if it refers to a bill that has not yet been introduced,67 and a bill may be introduced which proposes to amend a bill not yet passed.68
As no question is proposed or put, no debate can take place at the first reading stage. However, special provisions apply to the first reading of private Member’s bills and the Member presenting the bill may make a statement at this time (see p. 379).
Immediately after presentation, the usual practice is that the Minister moves that the bill be read a second time, makes the second reading speech and presents the bill’s explanatory memorandum. Copies of the bill and the explanatory memorandum are made available to Members in the Chamber. A bill is treated as confidential by the staff of the House until it is presented, and no distribution is made until that time. Leave has been given for the presentation of a replacement copy of a bill after it was learnt that there were printing errors in the copy presented originally.69
Back to topBack to top The application of the same motion rule to bills
The Speaker has the discretionary power under standing order 114(b) to disallow any motion which he or she considers is the same in substance as any question already resolved during the same session. Proceedings on a bill are taken to be ‘resolved’ in this context when a decision has been made on the second reading, and the rule does not prevent identical bills merely being introduced. Sections 57 (double dissolution) and 128 (constitution alteration) of the Constitution, relating to the resolution of disagreements between the Houses, provide for the same bills to be passed a second time after an interval of three months.70 These provisions over-ride the standing order.71
In using his or her discretion in respect of a bill the Speaker would pay regard to the purpose of the rule, which is to prevent obstruction or unnecessary repetition, and the reason for the second bill. Hence, in addition to the cases provided for in the Constitution, a Speaker might not seek to apply the rule to cases arising from Senate disagreement, and in the normal course of events it is only at such times that a bill would be reintroduced in the House and passed a second time. For example, there have been occasions when the Senate has rejected,72 or delayed the passage of,73 bills transmitted from the House and the House has again passed the bills without waiting the three months period. In one case the standing order providing for the same motion rule was suspended,74 although in view of the Speaker’s discretion in this matter the suspension may not have been necessary. It is also possible that a bill could seek to reintroduce provisions of a bill previously passed by the House but subsequently deleted from the bill by Senate amendment.75
Although there is no record of a motion on a bill being disallowed under the same question rule, in some circumstances the operation of the rule would be appropriate. In 1982 two identical bills were listed on the Notice Paper as orders of the day, one a private Member’s bill and the other introduced from the Senate. Had either one of the bills been read a second time, or the second reading been negatived, any further consideration of the other bill would have been preventable under the same question rule, but in the event neither bill was proceeded with.76
A number of private Members’ bills which have lapsed pursuant to the provisions of standing order 42 have been put forward again. As no resolution had been reached on the previous occasion, the same motion rule was not applicable.77
Back to topBack to top Referral to Main Committee or standing or select committee
Before the debate on the motion for the second reading is resumed, a motion may be moved without notice to refer the bill to the Main Committee for the remainder of the second reading and consideration in detail stages, or to refer the bill to a standing or select committee for an advisory report. Bills may be referred by motion on notice or by leave after the resumption of debate on the second reading.78 A motion may provide for referral at a future time.79 The Chief Government Whip, pursuant to powers bestowed by standing order 116(c) in relation to the conduct of business, rather than a Minister, usually moves the relevant motions. An amendment has been moved to a motion of referral.80
When these procedures were first introduced in 1994, referral to the Main Committee or to a committee for an advisory report occurred between the first and second reading stages. The standing order was revised in 1996 to allow, but not compel, referral following the Minister’s second reading speech, and this has become the usual practice.81 In cases where the second reading has not been moved immediately following the first reading (e.g. bills introduced from the Senate), bills have continued to be referred between the first and second reading stages, and Ministers’ second reading speeches on these bills have been delivered in the Main Committee.
The Main Committee is an extension of the Chamber of the House, operating in parallel to allow two streams of business to be debated concurrently. It is an alternative venue rather than an additional process. For a description of Main Committee procedures generally see Chapter on ‘Motions’.
In respect of legislation, proceedings in the Main Committee are substantially the same as they are for the same stage in the House. A significant difference, stemming from the lack of opportunity in the Committee for divisions, is the provision for the ‘unresolved question’. Proceedings on a bill may be continued 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 bill is returned to the House.82
At the conclusion of the bill’s consideration in detail the question is put, immediately and without debate, ‘That this bill be reported to the House, without amendment’ or ‘with (an) amendment(s)’ (‘and with (an) unresolved question (s)’), as appropriate.83 If the Committee does not desire to consider the bill in detail it may grant leave for the question ‘That this bill be reported to the House without amendment’ to be moved immediately following the second reading.84
A bill may be returned to the House at any time during its consideration by the Main Committee by any Member moving, without notice or the need for a seconder, ‘That further proceedings be conducted in the House’.85 A bill may also be recalled to the House at any time by motion moved in the House (without notice or need for seconder).86
Advisory report by standing or select committee
Pursuant to standing order 143(b) a bill may be referred to a standing or select committee for an advisory report. The motion of referral may specify a date by which the committee is to report to the House. Bills are referred to the general purpose standing committee, or to the committee formed of House of Representatives members of a joint standing committee,87 most appropriate to the subject area of the bill. The participation of Members who are interested in the bill but not on the committee is facilitated by the provision that, for the purpose of consideration of bills referred for advisory reports, one or more members of the committee may be replaced by another Member.88 In addition the normal provision for the appointment of two supplementary members to a standing committee for a particular inquiry also applies.89 Standing and sessional orders have been suspended to enable a private Member’s bill to be referred to a standing committee for an advisory report.90
Committee proceedings on a bill are similar to proceedings on other committee inquiries; the committee may invite submissions, and it may hold public hearings before reporting its recommendations to the House. The report is presented in the same manner as other committee reports, with committee members expecting to be able to make statements. Motions to take note of the report are not moved however, as opportunity for debate will occur during subsequent consideration of the bill if it is proceeded with.
After the committee has presented its report, and if the bill is to be proceeded with, the (remainder of the) second reading and the consideration in detail stages will follow in the House, or the bill may be referred for these stages to the Main Committee. The bill cannot be considered in detail until the committee has reported.91 The time for the consideration in detail stage is set by a motion moved (without notice) by the Member in charge of the bill.92 Although a formal government response may be presented,93 the Government’s response to an advisory report may also be given by the Minister in speaking to the bill. If the Government accepts changes to the bill recommended by the advisory report, these are incorporated into government amendments moved during the consideration in detail stage.
Although the standing orders provide for bills to be referred, without notice, to a committee before the resumption of debate on the motion for the second reading, referral at other times (e.g. during debate on the second reading) may occur by motion on notice94 or following the suspension of standing orders.95
Before 2004 there was only provision for bills to be referred for advisory reports to standing committees. Former standing orders provided for the possible referral of a bill to a select committee immediately following the second reading. No bills were so referred. However, two bills were referred to select committees following the suspension of standing orders. On the first occasion the bill was referred to a select committee during the consideration in detail stage.96 On the other occasion a bill was referred during the second reading stage, immediately following the Minister’s second reading speech, to a joint select committee.97
Bill referred to joint standing committee
On several occasions standing and sessional orders have been suspended to enable bills to be referred to joint standing committees for consideration and an advisory report.98
Bill referred directly by Minister
Standing order 215 establishing the general purpose standing committees provides for the referral, by the House or a Minister, of any matter, including a pre-legislation proposal or bill, for standing committee consideration. Bills have been referred to a committee by a Minister directly (that is, without action in the Chamber), prior to99 or even after100 its introduction to the House, rather than through the advisory report mechanism provided by standing order.143
Back to topBack to top Attempted referral by second reading amendment
Proposals to refer bills to committees have been put forward in second reading amendments.101 Such amendments have on all occasions been rejected by the House.
The second reading is arguably the most important stage through which a bill has to pass. The whole principle of the bill is at issue at the second reading stage, and is affirmed or denied by a vote of the House.
Moving and second reading speech
Copies of a bill having been made available in the Chamber, the second reading may be moved immediately after the first reading (the usual practice) or at a later hour.102 The arrangements for private Members’ bills provide that after the first reading, the motion for the second reading shall be set down on the Notice Paper for the next sitting.103
On the infrequent occasions when copies of the bill are not available, leave may be granted for the second reading to be moved immediately,104 or at a later hour that day.105 If leave is refused, the second reading is set down for the next sitting.106 Alternatively standing orders may be suspended to enable the second reading to be moved immediately.107 It is the practice at the commencement of a new session for a Minister to place a contingent notice of motion on the Notice Paper as follows:
Contingent on any bill being brought in and read a first time: Minister to move—That so much of the standing orders be suspended as would prevent the second reading being made an order of the day for a later hour.108
A motion pursuant to this contingent notice, only once moved in the House to date,109 requires the concurrence of only a simple majority to be effective.
If the second reading is not to be moved immediately or at a later hour, a future sitting is appointed for the second reading, and copies of the bill must then be available.110 The House appoints, on motion moved by the Minister, the day (that is, the next sitting or some later date) for the second reading to be moved.111 The motion is open to amendment and debate. An amendment must be in the form to omit ‘the next sitting’ in order to substitute a specific date or day. Debate on the motion or amendment is restricted to the appointment of a day on which the second reading is to be moved, and reference must not be made to the terms of the bill.112 The second reading is set down as an order of the day on the Notice Paper for the next sitting or a specific date.113
During the 37th Parliament the House adopted the practice of having bills presented together with explanatory memorandums, with the second reading not being moved immediately following the first reading but being made an order of the day for the next sitting. When the order was called on on a later day, the Minister moved the second reading, delivered his or her second reading speech, and further debate followed immediately. This practice was discontinued on the recommendation of the Procedure Committee, which felt that it helped Members to have the terms of the Minister’s second reading speech available when preparing their own speeches.114
There may be reasons, other than the unavailability of printed copies of the bill, for the second reading to be set down for a future day. The Government may want to make public the terms of proposed legislation, with a view to enabling Members to formulate their position over a period in advance of the Minister’s second reading speech and the second reading debate.115
The common practice, however, is for the second reading to be moved immediately after the bill has been read a first time. The terms of the motion for the second reading are ‘That this bill be now read a second time’116 and in speaking to this motion the Minister makes the second reading speech, explaining, inter alia, the purpose and general principles and effect of the bill. This speech should be relevant to the contents of the bill.117 The time limit for the Minister’s second reading speech (for all bills except the main appropriation bill for the year) is 30 minutes.118 A second reading speech plays an important role in the legislative process and its contents may be taken into account by the courts in the interpretation of an Act (see p. 406). Ministers are expected to deliver a second reading speech even if the speech has already been made in the Senate. It is not accepted practice for such speeches to be incorporated in Hansard.119 At the conclusion of his or her speech the Minister presents the bill’s explanatory memorandum,120 and sometimes other documents connected to the bill, for example, a government response to a committee report on the bill.121 Leave is not required for this.
When the second reading has been moved immediately pursuant to S.O. 142(a), it is mandatory122 for debate to be adjourned after the Minister’s speech, normally on a formal motion of a member of the opposition executive. This motion cannot be amended or debated,123 and as adjournment is compulsory, no vote is taken.124 A further question is then put ‘That the resumption of the debate be made an order of the day for the next sitting’. This question is open to amendment and debate, although neither is usual. An amendment must be in the form to omit ‘the next sitting’ in order to substitute a specific day or date, for example, ‘Tuesday next’125 or ‘11 December 1989’.126 Debate on the question or amendment is restricted to the appointment of the day on which debate on the second reading is to be resumed and reference must not be made to the terms of the bill.
Debate may not be resumed for some time, depending on the Government’s legislative program, and during this time public and Members’ attitudes to the proposal may be formulated.
An order of the day set down for a specified day is not necessarily order of the day No. 1 for that day, nor does it necessarily mean that the item will be considered on that day.127
The fixing of a day for the resumption of a debate is a resolution of the House and may not be varied without a rescission (on seven days’ notice) of the resolution.128 However, a rescission motion could be moved by leave or after suspension of standing orders. In 1973 the order of the House making the second reading of a bill an order of the day for the next sitting was rescinded on motion, by leave, and the second reading made an order of the day for that sitting.129 The purpose of fixing ‘the next sitting’ or a specific future day ensures that, without subsequent action by the House, the order of the day will not be called on before the next sitting or the specified day.
On occasions debate may ensue, with the leave of the House, immediately after the Minister has made the second reading speech.130 By the granting of leave, the mandatory provision of standing order 142(a) concerning the adjournment of the debate no longer applies, and a division may be called on any subsequent motion for the adjournment of the debate.131 Alternatively, after the second reading speech, debate may, by leave, be adjourned until a later hour on the same day that the bill is presented.132 If leave is refused in either of these cases, the same effect can be achieved by the suspension of standing orders. The contingent notice described at page 352 has been moved to this end after the Minister’s second reading speech.133
If the second reading has been set down for a future sitting day, on that day the Minister makes the second reading speech when the order of the day is called on, and debate may be adjourned by an opposition Member134 in the normal way. The second reading debate may proceed immediately however, as the provision concerning the mandatory adjournment of debate when the second reading has been moved immediately after the first reading does not apply.
As with all adjourned debates, when an adjourned second reading debate is resumed, the Member who moved the adjournment of the debate is entitled to the first call to speak.135 However, usually it is the opposition spokesperson on the bill’s subject matter who resumes the debate, and this may not be the same Member who obtained the adjournment of the debate. On resumption of the second reading debate the Leader of the Opposition, or a Member deputed by the Leader of the Opposition—in practice a member of the opposition executive—may speak for 30 minutes. The Member so deputed, generally the shadow minister, is usually, but not necessarily, the first speaker when the debate is resumed.
Nature of debate—relevancy
The second reading debate is primarily an opportunity to consider the principles of the bill and should not extend in detail to matters which can be discussed at the consideration in detail stage. However, it is the practice of the House to permit reference to amendments proposed to be moved at the consideration in detail stage. The Chair has ruled that a Member would not be in order in reading the provisions of a bill seriatim and debating them on the second reading,136 and that it is not permissible at the second reading stage to discuss the bill clause by clause; the second reading debate should be confined to principles.137
However, debate is not strictly limited to the contents of the bill and may include reasonable reference to:
- matters relevant to the bill;
- the necessity for the proposals;
- alternative means of achieving the bill’s objectives;
- the recommendation of objectives of the same or similar nature; and
- reasons why the bill’s progress should be supported or opposed.
However, discussion on these matters should not be allowed to supersede debate on the subject matter of the bill.
When a bill has a restricted title and a limited subject matter, the application of the relevancy rule for second reading debate is relatively simple to interpret.138 For example, the Wool Industry Amendment Bill 1977, the long title of which was ‘A Bill for an Act to amend section 28A of the Wool Industry Act 1972’,139 had only three clauses and its object was to amend the Wool Industry Act 1972 so as to extend the statutory accounting provisions in respect of the floor price scheme for wool to include the 1977–78 season. Debate could not exceed these defined limits.140 The Overseas Students Tuition Assurance Levy Bill 1993 was a bill for an Act to allow levies to be imposed by the rules of a tuition assurance scheme established for the purposes of section 7A of the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act 1991, and contained only three clauses, thus allowing only a limited scope for debate.
A more recent example of a bill with a restricted title was the Extension of Sunset of Parliamentary Joint Committee on Native Title Bill 2004, the long title of which was ‘A Bill for an Act to extend for 2 years the operation of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund’. It also contained only three clauses.
To a lesser extent, the relevancy rule is easily interpreted for a bill with a restricted title to amend named parts of the principal Act, even though the bill may contain a greater number of clauses than the above examples. The Speaker ruled that the scope of debate on the States Grants (Special Financial Assistance) Bill 1953 should not permit discussion of the ways in which the States might spend the sums granted, that the limits of the debate were narrow and that he would confine the debate to whether the sums should be granted or not. The Speaker’s ruling was dissented from, following which the Speaker stated that the expenditure methods of the States were clearly open for discussion.141 Good examples of amending bills with restricted titles were the Ministers of State Amendment Bill 1988, the long title of which was ‘A Bill for an Act to amend section 5 of the Ministers of State Act 1952’,142 and the Veterans’ Entitlements Amendment (Male Total Average Weekly Earnings) Bill 1998, its long title being ‘A Bill for an Act to amend section 198 of the Veterans’ Entitlements Act 1986 to allow increases in the rate of pension payable under paragraph 30(1)(a) of that Act to the widow or widower of a deceased veteran to take account of Male Total Average Weekly Earnings’.
When a bill has an unrestricted title, for example, the Airports Bill 1995, whose long title was ‘A Bill for an Act about airports’ and which contained a large number of clauses, the same principles of debate apply, but the scope of the subject matter of the bill may be so wide that definition of relevancy is very difficult. However, debate should still conform to the rules for second reading debates and be relevant to the objectives and scope of the bill. Reference may be had to the second reading speech and the explanatory memorandum to help determine the objectives and scope of a bill. General discussion of a matter in a principal Act which is not referred to in the amending bill being debated has been prevented.143
An amendment to the question ‘That this bill be now read a second time’ may be moved by any Member (but generally would be moved by an opposition Member). Known as a second reading amendment, it may only take one of two forms—that is, a ‘6 months’ amendment (see p. 362) or a ‘reasoned amendment’.144
A reasoned amendment enables a Member to place on record any special reasons for not agreeing to the second reading, or alternatively, for agreeing to a bill with qualifications without actually recording direct opposition to it. It is usually declaratory of some principle adverse to or differing from the principles, policy or provisions of the bill. It may express opinions as to any circumstances connected with the introduction or prosecution of the bill or it may seek further information in relation to the bill by committees or commissions, or the production of documents or other evidence.
Relevancy and content
The standing orders145 specify rules governing the acceptability of reasoned amendments. An amendment must be relevant to the bill.146 In relation to a bill with a restricted title, an amendment dealing with a matter not in the bill, nor within its title, may not be moved.147 In relation to a bill with an unrestricted title, an amendment dealing with a matter not in the bill, but which is relevant to the principal Act or to the objects of the bill as stated in its title, may be moved even though the clauses have a limited purpose.
For example, the Apple and Pear Stabilization Amendment Bill (No. 2) 1977 had as a long title ‘A Bill for an Act to amend the Apple and Pear Stabilization Act 1971’ and the object of the bill was to extend financial support to exports of apples and pears made in the 1978 export season. The bill dealt with extension of time of support only, not with the level of the support.148 A second reading amendment to the effect that the bill be withdrawn and redrafted to increase the level of support was in order as the level of support was provided in the principal Act.149 Even though a bill may have a very broad title, an amendment must still be relevant to the subject matter of the bill.150 Reference may be made to the Minister’s second reading speech and the explanatory memorandum to clarify the scope of the bill.
The case of the Commonwealth Electoral Bill 1966 provides a good example of acceptable and unacceptable second reading amendments. The long title was ‘A Bill for an Act to make provision for Voting at Parliamentary Elections by Persons under the age of Twenty-one years who are, or have been, on special service outside Australia as Members of the Defence Force’. A second reading amendment was moved to the effect that, while not opposing the passage of the bill, the House was of the opinion that the vote should be given to all persons in the ‘call-up’ age group. The amendment was ruled out of order by the Speaker as the broad subject of the bill related to voting provisions for members of the defence forces under 21 years, whereas the proposed amendment, relating to all persons in the ‘call-up’ age group regardless of whether or not they were members of the defence forces, was too far removed from the subject of the bill as defined by the long title to be permissible under the standing orders and practice of the House. Dissent from the ruling was moved and negatived.151 Another Member then moved an amendment to the effect that, while not opposing the passage of the bill, the House was of the opinion that the vote should be given to all persons in the Defence Force who had attained the age of 18 years.152 This amendment was permissible as the practice of the House is to allow a reasoned amendment relevant to the broad subject of the bill.
Although there have been some excessively long second reading amendments,153 these are not welcomed by the Chair. Speaker Halverson ruled154 that a second reading amendment should not be accepted by the Chair if, when considered in the context of the bill, and with regard to the convenience of other Members, it could be regarded as of undue length, and that it was not in order for a Member to seek effectively to extend the length of his or her speech by moving a lengthy amendment, without reading it, but relying on the fact that the amendment would be printed in Hansard. The Chair has directed a Member to read out a lengthy second reading amendment in full and for the time taken to do so to be incorporated into the time allocated for his speech, giving as the reason that the amendment was larger than that which would normally be accommodated and that he did not want lengthy amendments to become the norm.155 The incorporation of an extensive quotation in a second reading amendment is not allowed.156
A reasoned amendment may not anticipate an amendment which may be moved during consideration in detail.157 Following a Member’s explanation that an amendment had been drafted not with reference to the clause but with reference to the principle of the bill, an amendment which could possibly have been moved in committee (i.e. the former consideration in detail stage) was allowed to be moved to the motion for the second reading.158 The principle underlying an amendment which a Member may not move during consideration in detail, may be declared by means of a reasoned amendment. A second reading amendment to add to the question an instruction to the former committee of the whole was ruled out of order on the ground that the bill had not yet been read a second time.159
Addition of words
A reasoned amendment may not propose the addition of words to the question ‘That this bill be now read a second time’.160 The addition of words must, by implication, attach conditions to the second reading.161 The Senate has not adopted this rule, on the basis that as a House of review, it should be allowed every opportunity to project viewpoints.162
In addition to the rules in the standing orders governing the contents of reasoned amendments, it is the practice of the House that an amendment which amounts to no more than a direct negation of the principle of a bill is not in order.
Form of amendment
The usual form of a reasoned amendment is to move ‘That all words after ‘‘That’’ be omitted with a view to substituting the following words: . . .’ Examples of words used are:
- the bill be withdrawn and redrafted to provide for . . .
- the bill be withdrawn and a select committee be appointed to inquire into . . .
- the House declines to give the bill a second reading as it is of the opinion that . . .
- the House disapproves of the inequitable and disproportionate charges imposed by the bill . . .
- the House is of the opinion that the bill should not be proceeded with until . . .
- the House is of the opinion that the . . . Agreement should be amended to provide . . .
- whilst welcoming the measure of relief provided by the bill, the House is of the opinion that . . .
- the House notes with approval that, in response to public pressure, the Government has introduced this limited bill, but deplores . . .
- whilst not opposing the provisions of the bill, the House is of the opinion that . . .
- whilst not declining to give the bill a second reading, the House is of the opinion that . . .
A second reading amendment is usually moved by the relevant shadow minister during his or her speech at the start of the debate, but may be moved by any Member and at any time during the debate. By convention, if the Member has allowed sufficient time, copies of the terms of the amendment are circulated in the Chamber. The fact that the moving of a reasoned amendment permits Members who have already spoken to the second reading to speak again to the amendment may influence the use or timing of the procedure. In practice, because of the way the question on the amendment is traditionally put, it is only possible for one second reading amendment to be moved (see p. 360).
Following the suspension of standing orders to enable a number of bills to be considered together and one question to be put on any amendments moved to motions for the second readings,163 second reading amendments have been moved to six bills in one motion.164
Immediately the Member moving the second reading amendment has finished his or her speech (not during the speech), the Speaker calls for a seconder. If the amendment is not seconded, there may be no debate on the amendment and it is not recorded in the Votes and Proceedings.165 A copy of the amendment signed by the mover and seconder is handed to the Clerk at the Table.
Debate and questions put
When seconded, the Speaker states that ‘The original question was ‘‘That this bill be now read a second time’’, to which the honourable Member for . . . has moved, as an amendment, that all words after “That’’ be omitted with a view to substituting other words’. The Speaker then proposes the immediate question ‘That the words proposed to be omitted stand part of the question’.166 This question is open to debate.
A Member who moves an amendment, or a Member who speaks following the moving of an amendment, is deemed to be speaking to both the original question and the amendment. A Member who has spoken to the original question prior to the moving of an amendment may again be heard, but shall confine his or her remarks to the amendment. A Member who has spoken to the original question may not second an amendment subsequently moved. A Member who has already spoken in the second reading debate can only move a second reading amendment by leave of the House.167
The time limits for speeches in the debate are 20 minutes for a Member speaking to the motion for the second reading or to the motion and the amendment, including a Minister or Parliamentary Secretary speaking in reply. A limit of 15 minutes applies for a Member who has spoken to the motion and is addressing the amendment.168
No amendment can be moved to the words proposed to be inserted or added until the question ‘that the words proposed to be omitted stand part of the question’ has been determined.169 However, a Member may amend his or her amendment after it is proposed with the leave of the House (for example, to correct an error in the words proposed to be substituted).170 A Member has been given leave to add words to an amendment moved by a colleague at an earlier sitting.171 An amendment may be withdrawn only by leave.172
If the question ‘That the words proposed to be omitted stand part of the question’ is resolved in the affirmative, the amendment is disposed of.173 If the debate has been closed by the mover of the motion for the second reading speaking in reply before the question was put on the amendment, the question on the second reading is then put immediately.174 In other cases debate may continue on the motion for the second reading.175 The general rule that an amendment which adds other words may be moved to words which the House has resolved shall stand part of a question176 does not apply in the case of a second reading amendment, which must not propose the addition of words to the question.177 Therefore it is not possible for a further second reading amendment to be moved.178
If the question ‘That the words proposed to be omitted stand part of the question’ were to be negatived, another question would be put ‘That the words proposed [the words of the amendment] be inserted’.179 If this question was agreed to, a final question ‘That the motion, as amended, be agreed to’ would then be put.180
See also ‘Putting question on amendment’ in the Chapter on ‘Motions’.
Effect of agreeing to reasoned amendment
As the House has never agreed to a reasoned amendment, it has no precedent of its own to follow in such circumstances. Although it seems unlikely, if a reasoned amendment were carried, that any further progress would be made, it could be argued that the amendment would not necessarily arrest the progress of the bill, as procedural action could be taken to restore the bill to the Notice Paper and have the second reading moved on another occasion.
This view was taken by the Chair during consideration of the Family Law Bill 1974, on which a free vote was to take place, when the effects of the carriage of an amendment expressing qualified agreement were canvassed in the House.181 The amendment proposed to substitute words to the effect that, whilst not declining to give the bill a second reading, the House was of the opinion that the bill should give expression to certain principles.182
On that occasion a contingent notice of motion was given by a Minister that on any amendment to the motion for the second reading being agreed to, he would move that so much of the standing orders be suspended as would prevent a Minister moving that the second reading of the bill be made an order of the day for a later hour that day.183 Subsequently the Chair expressed the view that the contingent notice would enable the second reading to be reinstated. If the contingent notice was called on and agreed to, the second reading of the bill would be made an order of the day for a later hour of the day. It would then be up to the House as to when the order would be considered (perhaps immediately). If the motion ‘That this bill be now read a second time’ were to proceed, it would be a completely new motion for that purpose and open to debate in the same manner as the motion for the second reading then before the House.184
Any determination of the effect of the carrying of a second reading amendment in the future may well depend upon the wording of the amendment. If the rejection is definite and uncompromising, the bill may be regarded as having
been defeated. However wording giving qualified agreement could be construed to mean that the second reading may be moved on another occasion.
On the other hand it could be argued that the House may be better advised to follow the practice that, after a reasoned amendment of any kind has been carried, no order is made for a second reading on a future day. This would be consistent with the practice in cases of the second reading being negatived. This is the modern practice in the House of Commons.185 However, in the House of Commons reasoned amendments record reasons for not agreeing to the second reading and amendments agreeing to the second reading with qualifications are not the practice.186
Reasoned amendment in the Main Committee
The view has been taken that an unresolved question on a second reading amendment prevents further consideration of a bill in the Main Committee.187
A ‘6 months’ amendment188 is in the form ‘That the word ‘‘now’’ be omitted from, and the words “this day 6 months” be added to the question’.189 No amendment may be moved to this amendment. The question proposed upon such an amendment is ‘That the word proposed to be omitted stand part of the question’, and if this question is decided in the affirmative, the amendment is defeated and the question on the second reading is then restated. Debate may then continue on the motion for the second reading. The acceptance by the House of such an amendment would mean that the bill has been finally disposed of.190 This form of amendment is rarely used as, from a debating and political viewpoint, it suffers by comparison with a reasoned amendment. On the last occasion it was moved on the motion for the second reading, the mover proposed to add ‘this day six months in order that the Government may confer . . .’191 Although the amendment was permitted by the Chair, the inclusion of the additional words was strictly out of order.
Determination of question for second reading
When debate on the motion for the second reading has concluded, and any amendment has been disposed of, the House determines the question on the second reading ‘That this bill be now read a second time’. On this question being agreed to, the Clerk reads the long title of the bill.
Only one government bill has been negatived at the second reading stage in the House of Representatives,192 but there have been a number of cases in respect of private Members’ bills.193 The accepted practice of the House has been that in cases where the second reading has been negatived, the motion for the second reading has not been moved again.
The modern practice of the House of Commons is that defeat on second reading is fatal to a bill.194 In the Senate rejection of the motion that a bill be read a second time does not prevent the Senate from being asked subsequently to grant the bill a second reading.195
Should the Government wish to proceed further with a bill, the second reading of which has been negatived or subjected to a successful amendment, the appropriate course to take would be to have the bill redrafted in such a way and to such an extent that it becomes a different bill including, for example, a different long title. Alternatively, standing orders could be suspended to enable the same bill to be reintroduced, but this would be a less desirable course.
From time to time a bill will be introduced and remain on the Notice Paper until the reactions of the public to the proposal are able to be made known to the Government and Members generally. As a result of these representations, following an advisory report on the bill from a committee, or for some other reason,196 the Government may wish to alter the bill substantially from its introduced form. This may not always be possible because the proposed amendments may not be within the title of the bill or relevant to the subject matter of the bill and may therefore be inadmissible under the standing orders.197 In this case, and sometimes in the case where extensive amendments would be involved, a new version of the bill may be introduced. If this is done, the Government either allows the order of the day in respect of the superseded bill to remain on the Notice Paper until it lapses on dissolution or prorogation, or a Minister or Parliamentary Secretary moves for the discharge of the order of the day.198 The new version of the bill is proceeded with notwithstanding the existence or fate of a previous similar bill. Discharge of a bill may occur before the presentation of the second version,199 or after the second version has passed the House.200
Proceedings following second reading
Immediately after the second reading of a bill has been agreed to, standing order 147 requires the Speaker to announce any message from the Governor-General in accordance with section 56 of the Constitution recommending an appropriation in connection with the bill. This requirement applies to special appropriation bills only and is covered in the Chapter on ‘Financial legislation’.
Former standing orders provided for the possible referral of a bill to a select committee at this stage, but no bills were so referred. There was also provision for the moving of an instruction to a committee—very few instructions were ever moved and only one agreed to (probably unnecessarily). These obsolete provisions are discussed in previous editions.
Reference to legislation committee
Thirteen bills were considered by legislation committees pursuant to sessional orders operating from August 1978. Sessional orders were adopted in March 1981 for the 32nd Parliament;201 however, no bills were referred. The sessional orders provided that, immediately after the second reading or immediately after proceedings following the second reading had been disposed of, the House could (by motion on notice carried without dissentient voice) refer any bill, excluding an appropriation or supply bill, to a legislation committee (in effect, for its consideration in detail stage).202
Leave to move third reading/report stage immediately
The standing orders provide that, at this stage, the House may dispense with the consideration of the bill in detail and proceed immediately to the third reading.203 If the Speaker thinks Members do not desire to debate the bill in detail, he or she asks if it is the wish of the House to proceed to the third reading immediately. If there is no dissentient voice, the detail stage is superseded and the Minister moves the third reading immediately. One dissentient voice is sufficient for the bill to be considered in detail. For a bill referred to the Main Committee the equivalent bypassing of the detail stage is achieved by the granting of leave for the question ‘That the bill be reported to the House without amendment’ to be put immediately.204
The detail stage is bypassed in the consideration of approximately 75% of bills.
Former committee of the whole
The words ‘committee stage’ found in earlier publications about the procedures of the House, and also in descriptions of the practice of the Senate and other legislatures, refer to what the House now knows as the ‘detail stage’ (described below).
Prior to 1994 the consideration in detail stage in the House of Representatives was taken in a committee of the whole—that is, a committee composed of the whole membership of the House (apart from the Speaker). Committee of the whole consideration took place (in the Chamber) at the same place in proceedings as the current detail stage and procedures205 were similar to current procedures—the essential practical differences being the title (Chairman or Deputy Chairman) and seating position (between the Clerks at the Table) of the occupant of the Chair, and the time limits applying to speeches.
The abolition of the committee of the whole was one of the reforms flowing from the 1993 Procedure Committee report About time: bills, questions and working hours,206 and accompanied other changes to the legislative process, including the provision for bills to be referred to committees for advisory reports, and the establishment of the Main Committee.
Rulings and precedents relating to the consideration of bills in the committee of the whole, where appropriate, have continuing application to the consideration in detail stage, whether in the House or the Main Committee.207
After the bill has been read a second time, and if it is the wish of the House or Main Committee, the House or Committee proceeds to the detailed consideration of the bill. The function of this stage is the consideration of the text of the bill, if necessary clause by clause and schedule by schedule,208 the consideration of amendments, and the making of such amendments in the bill as are acceptable to the House or Committee. The powers of the House or Committee at this stage are limited. For instance, the decision given on the second reading in favour of the principle of a bill means that, at the detail stage, the bill should not be amended in a manner destructive of this principle, and an amendment which is outside the scope of the bill is out of order.209
While the House or Main Committee should not amend a bill in a manner destructive of the principle affirmed at the second reading, they may negative clauses the omission of which may nullify or destroy the purposes of the bill. They may also negative clauses and substitute new clauses, such a procedure being subject to the rule that any amendment must be within the title or relevant to the subject matter of the bill, and otherwise in conformity with the standing orders of the House.210
The title and the preamble (if any) are considered last. The reason for postponing the title is that an amendment may be made in the bill which will necessitate an amendment to the title.211 The purpose of postponing the preamble is that the House or Main Committee has already affirmed the principle of the bill on the second reading, and therefore has to settle the clauses first, and then consider the preamble in reference to the clauses only. The preamble is thus made subordinate to the clauses instead of governing them. No question is put on the words of enactment at the head of the bill,212 as these words are part of the framework of the bill.
The standing orders specify a strict order in which the parts of a bill should be considered—see ‘Bill considered clause by clause’ at page 368. In practice, in the majority of cases the bill is taken as a whole or groups of clauses or schedules are taken together, by leave of the House—see ‘Bill considered as a whole, or by parts’ at page 371.
Moving of motions and amendments
A motion (including an amendment) moved during consideration in detail need not be seconded.213 Although there is no requirement for notice to be given of proposed amendments, the Speaker has appealed to Members to have proposed amendments in the hands of the Clerk at least one hour before they are to be moved,214 to allow time to ensure that they are in order and to prepare the appropriate announcements for the questions to be put, and in time for them to be printed and circulated to Members before they are considered. Members are encouraged in the practice of circulating amendments as early as possible so as to enable the Minister or Parliamentary Secretary in charge of the bill and other Members to study the effect of the amendments before they are put for decision. Amendments which the Government or Opposition may wish to move only in certain circumstances—for example, depending on developments in the House or negotiations between parties—may be held under embargo by the Clerk until their release is authorised by the Minister or other Member responsible. Where amendments have been printed and circulated, it is acceptable for a Member to move ‘the amendment (or ‘amendment No. . . .’) circulated in my name’ rather than read the terms of the amendment in full. In reply to a Member’s request that a lengthy amendment be read, the Chair has stated that it is quite customary for amendments to be taken as read when they have been circulated.215
In debate on any question during consideration in detail each Member may speak an unlimited number of periods of up to 5 minutes each.216 If no other Member rises the Member who has just spoken may speak again immediately, after being recognised by the Chair. An extension of time could be agreed to, the extension not to exceed two and a half minutes. However, as there is no limit on the number of opportunities to speak, in practice it is unlikely that an extension would be sought.
Debate must be relevant to the subject matter of the clause(s), schedule(s), item(s) or amendment(s) before the House or Main Committee,217 and cannot extend to other clauses or schedules which have been, or remain to be, dealt with. Discussion of matters relating to an amendment ruled out of order is not permitted.218 When the question before the Chair is that a particular clause be agreed to, the limits of discussion may be narrow. When a bill is considered, by leave, as a whole, the debate is widened to include any part of the bill.219 However, discussion must relate to the clauses of the bill, and it is not in order to make a general second reading speech.220
If an amendment is moved to a clause (schedule, etc) upon which the House or Committee wishes to vote, the Chair may propose a question in one of the following forms:
- When the amendment is to omit words, the question proposed is ‘That the words proposed to be omitted stand part of the question’.
- When the amendment is to omit words in order to insert or add others, the question is ‘That the words proposed to be omitted stand part of the question’. If this question is agreed to, the amendment is disposed of; if negatived, a further question is proposed ‘That the words proposed be inserted (added)’.
- When the amendment is to insert or add words, the question proposed is ‘That the words proposed be inserted (added).221
(In these illustrations the word ‘words’ may be replaced by ‘paragraph’, ‘subparagraph’, ‘subclause’, ‘section’, ‘schedule’, etc.)
If no Member objects, the question may be proposed in the form ‘That the amendment be agreed to’ in any of the above contingencies,222 and this is now common practice whether or not there is to be a vote on the question. This form of putting the question is in any case necessary when two proposed amendments to omit words and insert others occur at the same place; otherwise the negativing of the first amendment by agreeing to the question ‘That the words proposed to be omitted stand’ will preclude the moving of the second amendment.
When amendments are taken together by leave, the question proposed is ‘That the amendments be agreed to’.
At the conclusion of debate the question proposed is put to the House for decision. On occasion, where leave has been given to move amendments together, further leave has been given for separate questions to be put on each.223
If a clause (or schedule, etc) is amended, a further question is proposed ‘That the clause (schedule, etc) as amended, be agreed to’.224 If the bill is being considered as a whole, the further question proposed is ‘That the bill, as amended, be agreed to’. If the title is amended, the further question proposed is ‘That the title, as amended, be the title of the bill’.225
See also ‘Putting question on amendment’ in the Chapter on ‘Motions’.
Examples of amendments ruled out of order by the Chair have been amendments that were held to be:
- not relevant to the clause under consideration;226
- not within the scope of the bill;227
- neither within the scope nor the long title of the bill;228
- outside the scope of the bill and the principal Act;229
- not consistent with the context of the bill;230
- not in conformity with the standing orders;232 or
- in conflict with the Constitution.233
The discussion of relevance in relation to second reading debate (see p. 357) is also applicable to relevance in relation to detail stage amendments. However, an amendment to a bill, the nature of which has been agreed in principle, requires a more precise test of relevance than is the case in respect of the scope of general debate, and the relevancy rules are applied strictly to amendments.
An amendment may be moved to any part of a bill, if the amendment is within the title or relevant to the subject matter of the bill and conforms to the standing orders.234 If the title of the bill is unrestricted, an amendment dealing with a matter not in the bill, but which is relevant to the principal Act or to the objects of the bill as stated in its title, may be moved, even though the clauses have a limited purpose.235 Conversely, an amendment not relevant to the objects of the bill, or not within its scope, may not be moved.
The inclusion of such words as ‘and for related purposes’ or ‘and for other purposes’ in the long title of a bill does not open the bill to the introduction of any amendment whatsoever and cannot be used as a means of circumventing the intention of the standing orders.236 The terms of the long title are not fully determinative of the scope of an amendment and regard is also had to the subject matter of the bill and to the aim of the bill as expressed in the Minister’s second reading speech.237
An amendment to add further Acts to a schedule of Acts to be amended by a Statute Law (Miscellaneous Provisions) Bill has been permitted, the long title of the bill being ‘. . . to make various amendments to the statute law of the Commonwealth . . .’.238
If the title is restricted, an amendment dealing with a matter which is not in the bill, nor within its title, may not be moved.
It is the practice of the House that amendments may not be moved to a schedule containing an Agreement to be given effect by the bill in which it is contained, but an amendment to the clauses of the bill for the purposes of withholding legislative effect from the Agreement is in order, as is an amendment moved to the approval clause of the bill.239
No amendment, new clause or schedule may be moved if it is substantially the same as one already negatived, or which is inconsistent with one that has already been agreed to, unless the bill is reconsidered.240
An amendment which purports to omit a clause or schedule is not in order as the correct course, if a clause/schedule is opposed, is to vote against the question ‘That the clause/schedule be agreed to’.
If a bill is to be considered clause by clause, the text of the bill is considered in the following order:
- clauses and proposed clauses, in numerical order;
- schedules and proposed schedules, in numerical order;
- postponed clauses (which have not been postponed to a specific point);
- preamble (if any), and
In the case of an amending bill—that is, a bill whose principal purpose is to amend an existing Act or Acts242—the schedules contain the amendments. The schedules are considered in their numerical order before the clauses, and items within a schedule are considered in their numerical order. Consecutive items which amend the same section of an Act are considered together, unless the House otherwise orders. Schedules are also considered before the clauses in the case of taxation and appropriation and supply bills.243
Proceedings on the detailed consideration of a bill begin by the Chair calling the number of the clause, for example, ‘Clause 1’, and stating the question ‘That the clause be agreed to’.244 If it is the wish of the House or Main Committee to consider a group of clauses together, for example, clauses 1 to 4, the Chair states the question ‘That the clauses be agreed to’. The question is proposed without any motion being moved. A clause may be divided: a clause has been ordered to be considered by Divisions,245 by proposed sections246 and by paragraphs.247 It has also been ordered that clauses be taken together248 but it is usual when it is desired that clauses be taken together for leave to be obtained. Leave is necessary if a Member wishes to move, as one amendment, to omit more than one clause and substitute another Part.
An amendment may be moved only when the clause to be amended is before the House or Main Committee. When a clause has been amended, the Chair proposes a further question ‘That the clause(s) as amended, be agreed to’249 before proceeding to the next part of the bill.
The procedure for dealing with proposed new clauses is to consider them in their numerical order250—that is, at the point of consideration at which the new clause is to be inserted in the bill251—or at the end of the bill in the case of a proposed addition.252 A proposed new clause can be amended in the same manner as an existing clause.253 A new clause may be out of order for many of the same reasons as an amendment (see above), and in particular will not be entertained if it:
- is beyond the scope of the bill;
- is inconsistent with clauses agreed to or substantially the same as a clause previously negatived; or
- should be moved as an amendment to an existing clause in the bill.
If more than one new clause is proposed to a bill, each is treated as a separate amendment. However, several proposed new clauses, which may comprise a new Part or Division, may be moved together by leave.254 New Parts or Divisions may only be moved together by leave.
With the exception of a schedule containing an Agreement to be given effect by a bill in which it is contained, a schedule to a bill can be amended255 or omitted and another schedule substituted256 and is treated in the same manner as a clause. Traditionally, the questions proposed were ‘That the schedule (or ‘Schedule 2’, for example) be agreed to’.257 When a schedule has been amended, the further question is put ‘That the schedule, as amended, be agreed to’.258
With the introduction of the practice of including substantive amendments to existing Acts in schedules (see p. 340), some schedules became very extensive, possibly consisting of hundreds of items. In such cases amendments could be moved to individual items, items could be omitted, or omitted and other items substituted, and items could be inserted or added.259
In the case of amending bills, schedules are considered in their numerical order before the clauses, and items within a schedule are considered in their numerical order. Consecutive items which amend the same section of an Act are considered together, unless the House otherwise orders.261
A clause,261 clauses which have been taken together by leave,262 a clause and an amendment moved to the clause,263 or a clause which has been amended,264 may be postponed. The postponement may be specific, for example, ‘until after clause 6’.265 If not specific, postponed clauses are considered after schedules and before the title, or if there is a preamble, before the preamble.266 Part of a clause may also be postponed.267
A postponement of a clause is regarded as a motion, not an amendment. The motion to postpone a clause may be debated.268 Debate is limited to the question of postponement, and the bill or the clause may not be discussed. In relation to the Family Law Bill 1974 the House agreed to a procedural motion which, inter alia, postponed clauses 1 to 47 until after clause 48,269 the clause that was attracting the attention of most Members. On occasions a motion has been moved that a clause be postponed ‘as an instruction to the Government that . . .’270 or ‘so that the Government may redraft it to provide . . .’.271 The proposed instruction was not recorded in the Votes and Proceedings.
When all clauses and schedules have been agreed to, the preamble is considered. A preamble may be debated and amended.272 The questions proposed from the Chair are ‘That the preamble be agreed to’ and, where appropriate, ‘That the preamble, as amended, be agreed to’.
Where a bill is considered clause by clause, the long title is the last part of the bill to be considered. The title is amended273 if a clause has been altered beyond the terms of a bill’s title as read a second time, as every clause within the bill must come within the title of the bill.274 The title may also be amended if a bill is amended in such a way as to reduce its scope.275 When a title is amended, the Chair proposes the question ‘That the title, as amended, be the title of the bill’. When the amendment of the title occurs in the Main Committee the amendment needs to be specially reported to the House.276
Parts of the bill may be reconsidered while it is still being considered in detail, with the leave of the House or Main Committee. A clause has been reconsidered, by leave, immediately after it has been agreed to,277 shortly after the clause has been agreed to278 and after the title has been agreed to.279 A clause, previously amended, has been reconsidered, by leave, and further amended,280 and a new clause previously inserted has been reconsidered, by leave.281 Two clauses have been reconsidered together, by leave.282
In the majority of instances leave is granted for the bill to be considered as a whole.283 The Chair asks ‘Is it the wish of the House (Committee) to consider the bill as a whole’. If there is no dissentient voice, the Chair then proposes the question ‘That the bill be agreed to’. Traditionally, if a clause was to be opposed, the question on that clause was put separately and the bill not taken as a whole. However, it may suit the convenience of the House for opposition to a clause to be treated as an amendment, and the bill taken as a whole.284
Amendments may be moved to any part of the bill when the bill is considered as a whole. As a general rule they are taken in the order in which they occur in the bill. However, amendments may also be moved in an order convenient to Members but which does not reflect the sequence of the bill, and leave is not necessary for this.285
In the case of more than one amendment, the amendments may, by leave, be moved together.286 This course may be consistent with the objectives of taking the bill as a whole. Leave may also be given for amendments to be moved in groups, for example to allow them to be considered and debated in subject groupings rather than following the sequence of the bill.287 Although Members may be willing to have groups of amendments moved together by leave, it is not always possible for this to be done in the way desired. An example would be where there were both government and opposition amendments in the same area, in which case the amendments would be taken, if possible, in a way which did not result in a decision on one amendment making the other redundant. When an amendment is made to a bill taken as a whole, the further question is proposed ‘That the bill, as amended, be agreed to’. The motion ‘That the question be put’ on the bill as a whole has been used as a form of closure to curtail the debate.288
On occasions parts of the bill may be considered together, by leave. The Chair may be aware, because of circulated amendments or personal knowledge, that a Member wishes to move amendments to particular clauses, for example, clauses 10 and 19. If the House or Main Committee does not wish to consider the bill as a whole and have the Member move the amendments together, by leave, it may, for example, be willing to consider clauses 1 to 9 together, clause 10 (to which the Member may move an amendment), clauses 11 to 18 together, and then the remainder of the bill (at which stage the Member will move the second amendment). Schedules have been taken together,289 the clauses and the schedule have been taken together,290 and a bill has been considered by Parts (clause numbers shown).291 In each instance leave was required.
On one occasion, to allow debate on the bill as a whole to continue without interruption by divisions on amendments, after each amendment had been moved and debated, the House agreed to the motion that consideration of the amendment be postponed. Debate then continued on the bill as a whole, including amendments moved up to that point. At the conclusion of the consideration in detail stage the question was then put on each postponed amendment in the order in which they had been moved.292
Report stage (for bills considered by Main Committee)
If a bill has been considered in detail by the Main Committee, when the bill has been fully considered, the question is put ‘That this bill be reported to the House, without amendment’ or ‘with (an) amendment(s)’ (‘and with (an) unresolved question(s)’), as appropriate. After this question has been agreed to, a copy of the bill certified by the Clerk of the Committee, together with schedules of any amendments made by the Committee and any questions which the Committee was unable to resolve, is transmitted to the Speaker for report to the House.293
The Speaker reports the bill to the House at a time when other business is not before the House.294 If a bill is reported from the Main Committee without amendment or unresolved question, the question is put immediately ‘That the bill be agreed to’. No debate or amendment is allowed to this question.295
If a bill is reported with amendments or with questions which the Main Committee had been unable to resolve, the report may be considered immediately if copies of the amendments or unresolved questions are available to Members,296 and this is the usual practice. Otherwise the standing orders provide that a future time shall be set for considering the report and copies of the amendments or unresolved questions must then be available. However, the report may still be considered at once by leave of the House, or, if leave is not granted, following the suspension of standing orders. Since the establishment of the Main Committee the following contingent notice of motion has appeared on the Notice Paper:
Contingent on any report relating to any bill being received from the Main Committee: Minister to move—That so much of the standing orders be suspended as would prevent the remaining stages being passed without delay.
The motion is effective if agreed to by a simple majority.
When the report is considered, the House deals first with any unresolved questions297 (these are generally proposed amendments to the bill, but unresolved second reading amendments are also possible). Separate questions, open to debate or amendment, are put on each unresolved matter, but by leave, unresolved questions may be taken together.298 The House then deals with any amendments made by the Main Committee. A single question is put ‘That the amendments made by the Main Committee be agreed to’. No debate or amendment to this question is permitted. No new amendments to the bill may be moved except if necessary as a consequence of the resolution by the House of any unresolved question. Finally, the question is put ‘That the bill (or the bill, as amended) be agreed to’. Once again, no debate or amendment of this question is allowed.299
At any time before the moving of the third reading, a Member may move without notice that a bill be reconsidered in detail, in whole or in part, by the House.300
In the days of the former committee of the whole this practice was known as recommittal—the bill being returned to the committee for reconsideration. Precedents relating to the recommittal of bills, where appropriate, have continuing relevance to reconsideration.
The motion for reconsideration must be seconded if not moved by a Minister.301 Motions have been moved to reconsider clauses to a certain extent,302 for the reconsideration of certain amendments303 or to enable further amendments to be moved.304 Clauses can be reconsidered in any sequence which the House approves.305 An amendment to alter the scope of reconsideration may be moved to the motion to reconsider—that is, by adding other clauses or schedules to those proposed to be reconsidered or by omitting certain clauses or schedules proposed to be reconsidered.306 If a bill is ordered to be reconsidered without limitation, the entire bill is again considered in detail. A bill, or that part of the bill reconsidered, may be further amended.307 In the case of a partial reconsideration, only so much of the bill as is specified in the motion for reconsideration may be considered.308 Several bills which have been taken together have been reconsidered in order that an amendment could be moved to one of the bills.309
The motion for reconsideration may be debated310 but debate is confined to the reasons for reconsideration. On the motion for reconsideration, details of a proposed amendment should not be discussed,311 nor can the general principles of the bill and the detail of its clauses be debated.312 A Member moving for reconsideration can give reasons but cannot revive earlier proceedings.313 A Member who has moved for the reconsideration of a clause is in order in speaking to a motion to reconsider another clause moved by another Member, but is not in order in moving the reconsideration of a further clause as the Member has exhausted his or her right to speak.314
There is no limit on the number of times a bill may be reconsidered, and there are precedents for a bill being reconsidered a second,315 a third316 and a fourth time.317
Third reading and final passage
After completion of the consideration in detail stage, or following agreement to the second reading if no detail stage has occurred, the House may grant leave for the motion for the third reading to be moved immediately, or a future sitting may be set for the motion.318 The latter option is, however, rarely used in practice in order to minimise unnecessary delay. The procedure for moving the third reading is based on one of the following alternatives, in order of frequency:
- in the case of the detail stage being bypassed, the House grants leave for the third reading to be moved immediately after the second reading (see p. 364);
- following the adoption by the House of a Main Committee report on a bill, leave is usually granted for the third reading to be moved immediately; or
- if leave is not granted for the third reading to be moved immediately, a Minister may move a contingent notice of motion which usually appears on the Notice Paper. The motion is traditionally in the following form:
- I move, pursuant to contingent notice, That so much of the standing orders be suspended as would prevent the motion for the third reading being moved without delay.
- This motion is effective if agreed to by a simple majority.
The motion moved on the third reading is ‘That this bill be now read a third time’.319 The motion may be debated,320 although such debates are not common. The scope of debate is more restricted than at the second reading stage, being limited to the contents of the bill—that is, the matters contained in the clauses and schedules of the bill. It is not in order to re-open or repeat debate on matters discussed on the motion for the second reading or during the detail stage, and it has been held that the debate on the motion for the third reading is limited to the bill as agreed to by the House to that stage.321 Clauses may not be referred to in detail in the third reading debate,322 nor may matters already decided during the detail stage be alluded to.323 The time limits are as for a debate not otherwise provided for—that is, 20 minutes for the mover and 15 minutes for other Members. In practice, the opportunity to speak at this time may be taken by a Member who for some reason has been unable to participate in earlier debate (perhaps because of a guillotine), or, unacceptably, by a Member attempting to continue earlier debate.
A reasoned amendment cannot be moved to the motion for the third reading.324 The only amendment which may be moved to the motion for the third reading is ‘That the word ‘‘now’’ be omitted from, and the words “this day six months” be added to, the question’, which question, if carried, finally disposes of the bill.325 The question proposed by the Chair on the moving (and seconding) of such an amendment is ‘That the word proposed to be omitted stand part of the question’, which, if agreed to, disposes of the amendment. Debate may then continue on the motion for the third reading. If the question on the amendment is negatived, a further question would be proposed ‘That the words proposed be added’326 which, if agreed to, would be followed by the question ‘That the motion, as amended, be agreed to’. If no Member objects, the question ‘That the amendment be agreed to’ may be put instead of the question ‘That the word proposed to be omitted stand part of the question’.327 A third reading amendment is rare and one has never been agreed to by the House.
When the question on the third reading is agreed to, the bill is read a third time by the Clerk reading its long title.328 At this point the bill has passed the House and no further question may be put.329 The bill, as soon as administratively possible, is then transmitted by message to the Senate seeking its concurrence (see p. 377).
The House has, on occasions, rescinded the third reading resolution. In 1945 standing orders were suspended to enable the rescission of the resolution relating to the third reading of the Australian National Airlines Bill, and to enable the third reading of the bill to be made an order of the day for a later hour. Subsequently a message from the Governor-General recommending an appropriation in connection with the bill was announced and the bill was read a third time.330
The vote on the third reading of the Constitution Alteration (Simultaneous Elections) Bill 1974, which did not attract an absolute majority as required by the Constitution, was rescinded following a suspension of standing orders. Due to a malfunction, the division bells had not rung for the full period and several Members had been prevented from participating in the division on the third reading. The question on the third reading was put again, and passed by an absolute majority.331
The resolution on the third reading of the National Health Bill 1974 [No. 2], which had been passed on the voices, was rescinded, by leave, immediately following the third reading, and the question put again, as opposition Members desired a division on the question.332
The second and third readings of the Customs Administration (Transitional Provisions and Consequential Amendments) Bill 1986 were rescinded by leave, following the realisation that the second reading had not been moved, and the order of the day was called on again.333
The recorded decisions of the committee of the whole and the House on the committee (detail) stage, report and third reading of the Copyright Amendment Bill 1988 were rescinded on motion following the suspension of standing orders, a misunderstanding having occurred during the previous consideration.334
The recorded decision of the House on the third reading of the Taxation Laws Amendment Bill (No. 5) 1994 was rescinded on motion following the suspension of standing orders. The bill was then considered in detail and amended, and the question on the third reading put again. At the previous sitting leave had been given for the third reading to be moved immediately (i.e. omitting the detail stage) and intended government amendments had not been moved.335 (See also ‘Rescission of agreement to Senate amendments’ in Chapter on ‘Senate amendments and requests’.)
Printing and distribution
Once a government bill has been drafted and approved for presentation to Parliament the Office of Parliamentary Counsel orders the printing of copies of the bill which are forwarded to the appropriate parliamentary staff. A bill is kept under embargo until it is introduced, when the custody of copies and the authority to print passes to the Clerk of the House while the bill is before the House and to the Clerk of the Senate while the bill is before the Senate.
The role of staff of the House in the distribution of bills was recognised early in the history of the House. In 1901 Speaker Holder drew the attention of Members to the fact that copies of a circulated bill had not passed through the hands of officers of the House, and expressed the view that it would be well in the future if the distribution of bills took place through the recognised channel. Prime Minister Barton stated that he would take particular care that in future all necessary distribution was done through the officers of the House. A few days later the Speaker repeated that the distribution of bills was a matter for the officers of the House, and one for which they accepted full responsibility.336
A Minister or Parliamentary Secretary on presenting a bill hands a signed copy to the Clerk at the Table. The title of the responsible Minister’s portfolio is shown on the first page of the bill. If there are any typographical errors in this copy, the errors are corrected by the Office of Parliamentary Counsel and initialled in the margin of the bill by the Minister (or Parliamentary Secretary). Similarly, private Members sign and present a copy of bills they introduce and initial any necessary corrections.337 All future prints of the bill are based on this introduction copy. Copies of a bill are circulated in the Chamber immediately after presentation.
Third reading print
If a bill has been amended at the detail stage, a ‘third reading print’, incorporating the amendment(s), is produced. The copies of the third reading print also have printed on the top left hand corner the Clerk’s certificate recording the agreement of the House to the bill and certifying that it is ready for transmission to the Senate. It is the responsibility of staff of the House to arrange for a bill’s reprinting. This may take some days in the case of a sizeable bill which has been heavily amended. The third reading print is checked carefully to ensure that the copy of the bill transmitted to the Senate accurately reflects all changes made to the bill by the House. This unavoidable delay is a factor of some importance in the programming of business in the closing stages of a period of sittings or on other occasions when it is the desire of the Government for a bill to be passed by both Houses expeditiously.338
Clerical or typographical errors in a bill may be corrected by the Clerk acting with the authority of the Deputy Speaker.339 In practice only bills introduced in the House are so amended. The Office of Parliamentary Counsel often asks for such correction, but where the matter has not been initiated by that office, its advice is first obtained as to whether or not any such amendment should be made. This type of correction is normally made prior to the transmission of the bill to the Senate but has also been made after the bill has been returned from the Senate.340
Clerk’s certificate and transmission to the Senate
When the House passes a House bill, a certificate signed by the Clerk of the House is attached to an introduced copy of the bill.341 The certificate is in the following form:
This Bill originated in the House of Representatives; and, having this day passed, is now ready for presentation to the Senate for its concurrence.
Clerk of the House of Representatives
House of Representatives
[Date bill passed House]
A copy of the bill bearing the Clerk’s certificate, together with a second copy for the Senate’s records, is placed inside a folder known as a message to the Senate.342 When a bill has been amended in its passage through the House, a copy of the third reading print, which has the Clerk’s certificate printed on it rather than affixed, is placed in the message for transmission to the Senate, instead of a copy of the unamended bill. The message takes the following form:
Message No. [ ]
The House of Representatives transmits to the Senate a Bill for an Act [remainder of long title]; in which it desires the concurrence of the Senate.
House of Representatives
[Date of despatch]
The message to the Senate is signed by the Speaker or, if the Speaker is unavailable, by the Deputy Speaker.343 Because of the unavailability of the Speaker and the Deputy Speaker, a Deputy Chairman (the former equivalent of a member of the Speaker’s panel) as Deputy Speaker has signed messages to the Senate transmitting bills for concurrence.344
In cases where standing orders are suspended to enable related bills to be considered together, the bills are transmitted to the Senate by means of one message. For example, in 1965, 32 bills relating to decimal currency, which were together read a third time in the House,345 were transmitted to the Senate within the one message.346 Similarly, on other occasions, nine Sales Tax Assessment Amendment Bills have been transmitted to the Senate in the one message.347
It is the responsibility of the Serjeant-at-Arms to obtain the Clerk’s signature on the certified copy of the bill and the Speaker’s signature on the message and, if the Senate is sitting, to deliver the message to the Bar of the Senate, where a Clerk at the Table accepts delivery. If the Senate is not sitting, the Serjeant-at-Arms delivers the message to the Clerk of the Senate. Senate practice is that the bill is reported by the President when the Senate Minister representing the Minister responsible for the bill in the House indicates that the Government is ready to proceed with the bill.348
Private Members’ bills
When the notice for a private Member’s bill is called on by the Clerk, the Member presents the bill and may speak in support of it for a period not exceeding five minutes.349 It is then read a first time. The allocation of time for debate on the bill’s second reading on a subsequent private Members’ day is determined by the Selection Committee. If the second reading is agreed to by the House, further consideration of the bill is given priority over other private Members’ business.350
A private Member’s bill may be considered during time normally reserved for government business following the suspension of standing orders.
(See also ‘Private Members’ bills in Chapter on ‘Non-government business’.)
Constitution alteration bills
The passage of a bill proposing to alter the Constitution is the same as for an ordinary bill, with the exception that the third reading must be agreed to by an absolute majority. Such a bill may be initiated in either House.
Section 128 of the Constitution provides that a bill proposing to alter the Constitution must be passed by both Houses, or by one House in certain circumstances (see below), by an absolute majority. If, on the vote for the third reading, no division is called for and there is no dissentient voice, the Speaker draws the attention of the House to the constitutional requirement that the bill must be passed by an absolute majority and directs that the bells be rung. When the bells have ceased ringing the Speaker again states the question and, if no division is called for and there is no dissentient voice, the Speaker directs that the names of those Members present agreeing to the third reading be recorded by the tellers in order to establish that the third reading had been carried by an absolute majority.351 If a bill initiated in the House is amended by the Senate and that amendment is agreed to by the House, thus causing a change to the bill, the question on the amendment must also be agreed to by the House by an absolute majority.352 It follows that an absolute majority is not required in the case of the House disagreeing to an amendment of the Senate, as there is no change to the bill as agreed to by the House.353
There was some uncertainty in the past as to whether a bill proposing to alter the Constitution required an absolute majority on the second reading as well as on the third reading.354 In 1965 the Attorney-General expressed the following opinion:
My own view is that the Second Reading of a Bill is no more than the process through which the Bill passes before it reaches the stage at which the House can decide whether or not to pass it; the passing of the Bill occurs when the question on the Third Reading is agreed to. The fact that amendments can be made in the Committee stage after the Second Reading, and that the Bill can be refused a Third Reading, or re-committed before the Third Reading is agreed to, confirms this view. I am accordingly of the opinion that an absolute majority is not required at the Second Reading stage and that there is no need to record such a majority at that stage.355
This reasoning is supported by standing order 155(c), which states ‘After the third reading the bill has passed the House and no further question may be put’. In recent years the practice has been to establish the existence of an absolute majority only on the third reading—that is, the final act in the passage of the bill through the House.
If a bill does not receive an absolute majority on the third reading, it is laid aside immediately and cannot be revived during the same session.356 However, in the case of the Constitution Alteration (Simultaneous Elections) Bill 1974, the bill failed to gain an absolute majority on the third reading357 because of a malfunction of the division bells.358 On the same day the House agreed to a suspension of standing orders to enable the vote to be rescinded and taken again.359 The question ‘That this bill be now read a third time’ was then put again and, on division, was agreed to by an absolute majority.360
Section 128 of the Constitution provides for the situation where there is a deadlock between the Houses on constitution alteration bills. It is possible under certain conditions for a constitution alteration bill twice passed by one House to be submitted to referendum (and hence, if approved, assented to and enacted) even though not passed by the other House—see ‘Constitution alteration bills passed by one House only’ in the Chapter on ‘The Parliament and the role of the House’.
The form of bills introduced into the Senate is governed by the limitations, imposed on the Senate by the Constitution, that a proposed law appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate361 (see Chapter on ‘Financial legislation’). Bills received from the Senate are therefore either ordinary bills or constitution alteration bills. Only a minority of bills introduced into the House (less than 10%) are in fact received from the Senate.
Introduction and first reading
A bill introduced into and passed by the Senate is conveyed to the House under cover of a message transmitting the bill for concurrence. The message takes the following form:
The Senate has passed a Bill for ‘‘An Act [remainder of long title]’’, and transmits it to the House of Representatives for its concurrence.
If the House is sitting, the message is delivered to the Chamber by the Usher of the Black Rod where it is received at the Bar by the Serjeant on duty and taken to the Clerk at the Table. If the House is not sitting, the message is delivered to the Clerk362 or other staff.
Inside the Senate message is a copy of the bill bearing the certificate of the Clerk of the Senate:
THIS bill originated in the Senate; and, having this day passed, is now ready for presentation to the House of Representatives for its concurrence.
At a convenient time in the day’s proceedings the Speaker reads the terms of the message to the House. The action of reading the message in effect presents the bill to the House. The bill is then read a first time without any question being put363 and, to the necessary extent, then proceeds as if it was a House bill364 (that is, ordinary bill). A message has been received from the Senate asking the House to consider immediately a bill earlier transmitted from the Senate. Consideration was not made an order of the day.365
If the second reading is to be moved immediately, copies of the bill must be available for distribution in the Chamber. Stocks of the bill are usually received from the Senate when the message transmitting the bill is sent to the House.366 Should copies of the bill not be available, leave is required to move the second reading immediately.367
It is common, following the first reading of a bill brought from the Senate, for a motion to be moved that the second reading be made an order of the day for the next sitting instead of moving the second reading immediately.368 The order of the day for the second reading of a Senate bill may be referred to the Main Committee. When, on a future sitting day, the order of the day is called on (either in the House or the Main Committee), the second reading is moved and the second reading speech made. The debate may then be adjourned to a future day.369 However, the second reading debate may proceed immediately370 as the mandatory provision concerning the adjournment of the debate when the second reading has been moved immediately after the first reading does not apply. When copies of the bill are available, it may be the wish that the second reading be moved at a later hour rather than immediately. When the second reading is moved in these circumstances at a later hour, the debate may not proceed immediately unless leave is obtained.
It is usual for a contingent notice to be on the Notice Paper enabling a Minister to move the suspension of standing orders to permit a bill received from the Senate to be passed through all its stages without delay.371 In the case of a Senate bill for which a private Member has responsibility for carriage, it has been considered that subsequent proceedings should follow the procedures for private Members’ bills (see Chapter on ‘Non-government business’).
If the bill is not amended by the House, the Clerk’s certificate is attached to the top right hand corner stating that ‘This Bill has been agreed to by the House of Representatives without amendment’. It is returned to the Senate by message in the following form:
The House of Representatives returns to the Senate the Bill for an Act [remainder of long title], and acquaints the Senate that the House of Representatives has agreed to the Bill without amendment.
When a Senate bill has been amended by the House, the bill is returned with a schedule of amendments certified by the Clerk.372
The further procedural steps involved when the Senate returns the bill with any of the amendments made by the House disagreed to, or further amendments made, are covered in the Chapter on ‘Senate amendments and requests’.
All stages without delay
Previous discussion on processes concerning bills has concentrated on the ordinary passage of legislation, that is, procedures applying when the standing orders of the House are being observed. On occasions, the House may consider it expedient to pass a bill through all its stages without delay, either by granting leave to continue consideration at each stage when consideration would normally be adjourned until the next sitting day, or by suspension of the standing orders to enable its immediate passage.
When it is felt necessary or desirable to proceed immediately with a bill which would normally require introduction on notice, a Minister (or Parliamentary Secretary) may ask leave of the House to present it. If there is no dissentient voice, the Minister presents the bill. If copies of the bill are available, the second reading may then be moved.373 If copies of the bill are not available, the Minister must obtain the leave of the House to move the second reading immediately.374 The second reading debate may then ensue, by leave. At the conclusion of the debate and any proceedings immediately following the second reading, the House may grant leave for the third reading to be moved immediately.375 Alternatively, after the detail stage has been completed, the remaining stages may proceed immediately, with the leave of the House.376
Suspension of standing orders
When it is wished to proceed with a bill as a matter of urgency, but it is not considered desirable or expedient to seek leave at the appropriate stages, or leave has been sought and refused,377 the standing orders may be suspended with the concurrence of an absolute majority if the suspension is moved without notice, or a simple majority if moved on notice, to enable the introduction and passage of a bill through all its stages without delay. It is usual for a set of contingent notices for the suspension of standing orders to be on the Notice Paper, to avoid the need for an absolute majority in these circumstances. Once the standing orders have been suspended, leave is not necessary to proceed to the various stages of the bill.378 Standing orders have been suspended to enable the introduction and passage of a bill through all stages without delay by a specified time.379 This is in effect, if not in name, a guillotine.380
It is not unusual, to meet the convenience of the House, for standing orders to be suspended to enable related bills to be considered together. A motion for the suspension of the standing orders may, depending on the particular circumstances, provide as follows:
- (a) a number of bills to be presented and read a first time together;
- (b) one motion being moved without delay and one question being put in regard to, respectively, the second readings, the detail stage, and the third readings, of all the bills together; and (if appropriate)
- (c) messages from the Governor-General recommending appropriations for some of the bills to be announced together.381
- This procedure facilitates consideration by the House of, for example, related taxation bills such as the Wool Tax (Nos 1 to 5) Amendment Bills,382 where, because of the constitutional requirement that laws imposing taxation shall deal with one subject of taxation only,383 a number of separate but related bills are presented. Such a motion to suspend standing orders used to be moved early in each session in relation to sales tax bills.384
- For the calling on together of several orders of the day for the resumption of debate on the motion for the second reading of a number of bills, with provision that they may be taken through their remaining stages together.
- For the calling on together of several orders of the day for resumption of debate on the motion for the second reading of a number of bills, with provision for:
- (a) a motion being moved ‘That the bills be now passed’; and
- (b) messages from the Governor-General recommending appropriations in respect of some of the bills being then announced together.385
- In such a case as the group of 32 bills dealing with decimal currency386 and in other cases where the passing of a number of related bills is a formal matter, this form of procedure is of great advantage in avoiding unnecessary use of the time of the House.
A suspension of standing orders to enable a number of related bills to be guillotined in the one motion has also included provisions to allow groups of the bills to be taken together.387
When there are two or more related bills before the House, it frequently suits the convenience of the House, by means of the cognate debate procedure, to have a general second reading debate on the bills as a group rather than a series of separate debates on the individual bills. A proposal for a cognate debate is usually put to the House by the Chair, seeking the agreement of the House to the proposal. The debate on the second reading of the first of the bills is then permitted to cover the other related bills, and the questions on the second reading of the subsequent bills are put (usually) without further debate. Apart from this, normal procedures apply and separate questions are put as required on each of the bills.1388 When a Member wishes to move a second reading amendment to a bill encompassed by a cognate debate other than the order of the day initially called on, the amendment may only be moved when the relevant order of the day is called on.389 The House has allowed the subject matter of 16 bills to be debated on the motion for the second reading of one of those bills.390 A group of bills relating to different subjects, but all Budget measures, has been debated cognately.391 In 2004 the main appropriation bills were debated cognately in the Budget debate with additional appropriation bills (Nos 5 and 6) of the previous financial year.392
In 1994 a standing order was introduced providing formal procedures for the cognate debate of related bills.393 This standing order was omitted in 1996 after experience with the new provisions had found them to be unduly prescriptive, and the traditional informal arrangements were resumed.
Bills declared urgent
There is no set period of time for the length of debate on any stage of a bill during its passage through the House. The length of time for debate on each stage of a bill’s passage may be influenced by such factors as:
- its subject matter—whether the bill is of a controversial nature, whether it has the general agreement of the House, or whether it is of a ‘machinery’ kind;
- the nature of the Government’s legislative program;
- the urgency connected with the passage of the bill;
- agreement reached between Government and Opposition; and
- the number of Members from each side who wish to speak on the bill.
In some cases, however, the Government may wish to curtail or limit one or more stages of debate on a bill and finds it necessary to move the closure motion (the ‘gag’), which has the effect of curtailing debate on the question immediately before the House.394 On other occasions the Government may resort to the use of the procedure for the limitation of debate (the ‘guillotine’), prescribed in detail by standing orders 82–85. A guillotine motion is usually passed prior to the commencement of the debate it proposes to limit.
The guillotine procedure was introduced to the House in 1918.395 The original standing order, adopted by a division on party lines, permitted an hour for debate on the motion for the allotment of time and ten minutes for individual speeches. These time limits were reduced in 1931 and 1950 to those currently applying (that is, 20 minutes and five minutes respectively). There was also the requirement that the declaration of urgency be approved by an affirmative vote of not less than 24 Members (which in effect then meant that at least a quorum of Members, including the occupant of the Chair, had to be present). This requirement was removed in 1950 on the grounds that it was unconstitutional.396
It was not until 1958 that the guillotine was applied to more than one bill in the same declaration of urgency, following the suspension of standing orders.397 These were related bills debated cognately. The first occasion the procedure was used for unrelated bills was in 1971—strong objection was taken and even government Members spoke against the action.398 However, this was to become a common occurrence. Statistics for the number of bills declared urgent each year since 1918 are given at Appendix 17. It can be seen that this figure increased considerably, to a record of 132 bills in 1992. The increase was attributed by Governments to the imposition from 1986 of Senate deadlines for the receipt of legislation from the House.399
The use of the guillotine declined significantly after the provision of increased debating time with the establishment of the Main Committee.400 Another contributing factor to the decline in the 37th Parliament was that with the introduction of three sitting periods each year instead of two, the Government could introduce bills during one period with the expectation that they would not pass until the next.
The preparation of the documentation necessary for use in the Chamber for the process of declaring bills urgent and allotting time and their subsequent passage, requires great care and can be very time-consuming. Also, because of the desirability of giving Members reasonable notice of government intentions in such matters, it is imperative that detailed advice of such intentions be given well in advance.
The guillotine may not be moved in the Main Committee, but, having been agreed to in the House, may be applied to bills considered in the Main Committee. However, because of the delay involved in moving business to and from the Main Committee, it is likely that in normal circumstances bills needing urgent consideration would be taken in the House.
The first step is for a Minister to declare that the bill is an urgent bill and this declaration may be made at any time.
Standing orders must be suspended if it is desired to include more than one bill in the declaration of urgency and to move one motion for the allotment of time in respect of the bills; as many as 67 bills have been dealt with together in this way.401 If the time for consideration of a bill is to continue beyond the time fixed by the standing or sessional orders for the adjournment of the House, it is necessary to include in the motion for suspension of standing orders a provision to suspend standing order 31 (automatic adjournment) for the sitting in order to avoid an interruption at that time.402 Also, if two or more bills are to be included in the declaration of urgency, and the allotment of time will provide for one or more of them to be called on and considered after 9.30 p.m., a provision to suspend the new business rule403 for the sitting must be included in the motion to suspend standing orders. The motion to suspend standing orders has also included other provisions—for example, permitting bills to be taken together and setting reduced speech time limits.404
The question ‘That the bill be considered an urgent bill’ is put immediately, no debate or amendment being permitted.405 A declaration of urgency has been withdrawn, by leave, when the House was proceeding to a division on the question.406
When a bill has been declared urgent, the declaration is also taken to apply to Senate amendments and requests,407 and a motion for allotment of time may be moved in respect of them without a further declaration of urgency.
On the declaration of urgency being agreed to, a Minister may move a motion specifying the times for any stage of the bill. It is not necessary to cover every stage.408 Examples are:
- For the initial stages of the bill409 (up to, but not inclusive of, the second reading of the bill), until . . . (rarely used).
- For the second reading410 and the reporting of a message from the Governor-General recommending an appropriation, until . . .
- In relation to the detail stage:
- (a) For the detail stage411 (or the remainder of the detail stage,412 if consideration in detail has commenced), until . . . , or
- (b) For the detail stage:
- (i) to the end of clause . . . , until . . . (and so on, clauses or parts separately or in groups)
- . . .
- (v) remainder of the detail stage, until . . .,413 or
- (c) For the detail stage (Appropriation Bill (No. 1)):
- (i) Schedule
- Department of . . . , until . . .
- Department of . . . , until . . .
- (ii) Remainder of bill until . . .414
- For the remaining stages, until . . .415
- For all stages, until . . .416
- In respect of Senate amendments (or requests):
- (a) For the consideration of the Senate’s amendments and for the remaining stages until . . .,417 or
- (b) For No. 1 etc., until . . .418
- (c) For Group 1—Amendments 1 . . .
- For Group 2—Further Amendments . . .419
The above are examples of terminating the stages of a bill at a fixed time but there are instances where it is more practicable to express the allotment of time in hours. This is the case when a bill is to be debated over a number of days and it is desirable that other business should intervene during that period. While this method has generally fallen into disuse in respect of an ordinary bill,420 it has often been used for the Appropriation Bills (Nos 1 and 2).421 On an occasion when the estimates were declared urgent and times had been fixed for their consideration, and a point of order was raised that the estimates had priority of other business until disposed of, it was ruled that the times fixed were terminating times, and that, although the estimates had been declared urgent, the House should not be prevented from conducting other business.422 Terminating times expressed in hours for a group of bills have been changed to fixed times.423
The allotment of time for a group of bills may provide for their consideration over more than one sitting day. In this case the ordinary order of business may be followed at the commencement of proceedings on the second sitting day before consideration of the outstanding bills is resumed.424
It has been the practice in recent years for the Minister to move an allotment of time in respect of ‘all stages of the bills’ when several bills are under guillotine together and the second reading debate on the first of the bills has not been resumed.425 Where standing orders have been suspended to enable one motion for the allotment of time to be moved for several bills, the details may vary depending on whether amendments are to be moved—where there are no amendments provision may be made for ‘the remaining stages’, but where there are amendments the allotment would allow for a consideration in detail stage. The reporting of a message from the Governor-General recommending an appropriation is not necessarily included in the motion for allotment of time.426
The allotment of time may break up the detail stage,427for example:
- (1) groups of clauses;428
- (2) parts, groups of clauses (with exceptions), postponed and excepted clauses, new clauses, Schedule, remainder of detail stage;429
- (3) clause 1 (clause 2 to be considered postponed), groups of articles in the schedule, schedules of the schedule, postponed clause 2 and remainder of detail stage;430
- (4) to the end of a particular Part, remainder of detail stage;431 or
- (5) section of a clause, remainder of clause, new clauses, groups of clauses, remainder of detail stage.432
An allotment of time may be varied by motion without notice without an additional declaration of urgency.433
A Minister may move the allotment of time for a bill which has been declared urgent, either immediately, as is usual, or at any time during any sitting of the House but not so as to interrupt a Member who is speaking.
Debate on the motion for the allotment of time may not exceed 20 minutes, each Member speaking being allowed five minutes. Time taken to deal with a motion of dissent from a ruling of the Chair is counted as part of the 20 minutes434 (a closure may be moved to such a motion435). An amendment may be moved to the motion for allotment of time,436 and it has been found necessary, when midnight has intervened during consideration of the motion, for the word ‘tomorrow’ to be omitted from the motion and the word ‘today’ substituted.437 When the time allotted for consideration of the second reading of a bill has expired during the debate on the motion for allotment of time, the Chair has ruled that it was in order to put the questions on the allotment of time and on the second reading.438 The allotted time has been extended for the second reading,439 for the second reading and the detail stage,440 and has been extended and further extended for the detail and remaining stages.441 In the consideration of Appropriation Bill (No. 1) a motion may be moved, without notice, to vary the order of consideration of proposed expenditures,442 and the time allotted for the consideration together of the proposed expenditures for two departments has been varied to allow the proposed expenditures to be considered separately for stated times.443
When the time for each stage expires in accordance with the allotment of time, the debate is interrupted and the Chair puts (1) the question immediately before the Chair and (2) any other question necessary to conclude proceedings for that stage.444 At the expiration of time for the detail stage, the immediate question is put by the Chair and a further question is then put on the remainder of the bill. This includes postponed clauses, and any amendments, new clauses and schedules, copies of which have been circulated by the Government at least two hours before the end of the allotted time, which are treated as if they have been moved.1
If an allotment of time is in the form ‘for the remaining stages’, at the expiry of time the immediate question before the Chair is put and then any further question is put which is needed to dispose of the business before the House—for example, the question ‘That the remaining stages of the bill be agreed to’.446 However, if there are government amendments (which have been circulated at least two hours before the end of the allotted time) to be taken into account in such circumstances and the time for the remaining stages of the bill has expired before the detail stage has been reached, or when time has been allotted for the completion of the detail stage but it has expired, the House determines immediately the question ‘That the bill and the amendments (and/or new clauses) circulated by the Government be agreed to’. The final question is then put ‘That the bill be now read a third time’.447
If the allotment of time agreed to relates to the remaining stages of the bill, and the time expires during the second reading debate, and there are circulated government amendments to be taken into account, the following sequence is followed:
- question—That the words proposed to be omitted stand part of the question (if there is a second reading amendment);
- question—That the bill be now read a second time;
- message(s) from the Governor-General to be announced;
- question—That the bill and the amendments (new clauses and schedules) circulated by the Government be agreed to;
- question—That the bill be now read a third time.448
By resolving that particular stages of certain bills should conclude at specified times, the House overrides, by deliberate decision, the requirement in the standing orders for a motion for a future day to be fixed for the third reading. It is therefore in order for the Minister to move that the bill be read a third time without the grant of leave. Even when debate concludes before the expiry of time, the current practice is that leave is not required. However, where it is the wish of the House to proceed to the third reading immediately (that is, to bypass consideration in detail), leave is required for this.449
When the expiry of time has prevented opposition or other non-government Members from moving intended amendments which had been circulated, the Chair has allowed the unmoved amendments to be incorporated in Hansard so that their intentions could be recorded.450 If the time expires while a Member is moving a motion to suspend standing orders, the motion lapses.451
The closure motion cannot be moved while any proceedings in respect of which time has been allotted are being considered.452 This prohibition also applies to a motion for reconsideration of a bill, as such a motion is considered to come within ‘the remaining stages of the bill’. However, the closure can be moved on the motion for allotment of time.453 The closure can also be moved on a motion moved after the second reading to refer the bill to a select committee, if it has not been included in the motion for allotment of time.454 Such a motion would not be considered to be included in the motion for allotment of time if the bill is considered in the following stages: (1) second reading; (2) detail stage; (3) remaining stages. It would be considered to be included if the bill is considered as follows: (1) second reading; (2) remaining stages.
A motion to reconsider the bill may be moved at the appropriate time during consideration of the remaining stages of a bill.455
The House has only once divided a bill. In August 2002 the Research Involving Embryos and Prohibition of Human Cloning Bill 2002 was divided into two bills—the Prohibition of Human Cloning Bill 2002, and the Research Involving Embryos Bill 2002. As the standing orders make no provision for the division of a bill, a motion was first moved, following a statement by the Speaker, to suspend standing orders and to specify the necessary procedural arrangements.456 This motion was extensively debated and agreed to on division. Pursuant to the procedures thus adopted, after the conclusion of the second reading debate on the original bill, instead of the question on the second reading, the question ‘That the bill be divided into . . . (contents of each bill specified)’ was put to the House.457 This question having been agreed to, separate questions (without further debate) were put on the second reading of the two new bills. Further proceedings on each of the bills followed the normal course.
The division of a bill by the House in which it did not originate has not been accepted. The House has not been amenable to Senate attempts to divide House bills—see ‘Division of a House bill by the Senate’ in the Chapter on ‘Senate amendments and requests’.
When the House is dissolved or prorogued all proceedings come to an end and all bills on the Notice Paper lapse. If it is desired to proceed with a bill that has lapsed following a dissolution a new bill must be introduced, as there is no provision for proceedings to be carried over from Parliament to Parliament. However, both Houses have provisions for the resumption of business that has lapsed due to a prorogation of Parliament.458
Any bill which lapses by reason of a prorogation before it has reached its final stage may be proceeded with in the next session at the stage it had previously reached, provided that a periodical election for the Senate or a general election has not taken place between two such sessions. (The proviso in relation to a general election is necessary because on occasions the Parliament has been prorogued prior to the House being dissolved for the purposes of an election.) A further proviso is that the House in which the bill originated must agree to the resumption of proceedings. The procedure is as follows:
- If the bill is in the possession of the House in which it originated and has either not been sent to the other House459 or, if it has been sent, has been returned by message,460 it may be proceeded with by a resolution of the originating House, restoring it to the Notice Paper. For example, the Financial Corporations Bill 1973 was restored to the Notice Paper of the House.461 In the Senate examples are the Estate Duty (Termination) Bill 1973  and the National Health Bill (No. 3) 1973  (both private Senators’ bills).462 The stage which the bill had reached at prorogation may be made an order of the day for the next sitting463 or for a specified future day.464 Speaker Holder, in a private ruling, held that a bill cannot be proceeded with on the day of the resolution to restore, as it must first be restored to and printed on the Notice Paper.465 More recently, a bill has been proceeded with immediately after the House has agreed to a motion that the proceedings be resumed immediately at the point where they were interrupted.466
- If the bill is in the possession of the House in which it did not originate, it may be proceeded with by resolution of the House in which it is, restoring it to the Notice Paper, if a message has been received from the originating House requesting resumption of consideration. Following prorogation of the lst Session of the 28th Parliament on 14 February 1974 the House requested the Senate to resume consideration of the Australian Industry Development Corporation Bill 1973 and the National Investment Fund Bill 1973,467 and the Senate requested resumption of consideration of the Legislative Drafting Institute Bill 1973 and the Parliament Bill 1973.468 The House orders consideration of messages requesting resumption of consideration to be made an order of the day for the next sitting (the most common practice) or for a specified future day.
Bills appropriating revenue and moneys are deserving of special consideration in this context. The Constitution provides:469
A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated.
On occasions when the House has agreed to resume consideration of a lapsed bill appropriating revenue or moneys which, of constitutional necessity, originated in the House, and in respect of which a message from the Governor-General recommending an appropriation had been announced in the previous session, a new message is announced.470 This has occurred before the motion to resume proceedings was moved,471 and immediately after the motion to restore was agreed to.472 None of the bills on which the House has asked the Senate to resume consideration has involved an appropriation, but the matter has been canvassed in the Senate.473 Senate requests for resumption of consideration do not relate to appropriation bills (or taxation bills) as they are bills which the Senate may not originate.
Motions to resume proceedings on bills interrupted by prorogation and motions to request the Senate to resume consideration may be debated. Any bill so restored to the Notice Paper is proceeded with in both Houses as if its passage had not been interrupted by a prorogation, and, if finally passed, is presented to the Governor-General for assent. If the House in which the bill originated does not ask for the resumption of proceedings, the bill may be re-introduced.474
In 1990 the Senate, following suspension of its standing orders, sent a message requesting the House to resume the consideration of a bill which had lapsed in the House at the dissolution of the previous Parliament. The House returned a message to the Senate to the effect that the request was irregular in that it requested action prevented by the standing orders of the House and accepted parliamentary practice, and suggesting that the Senate should introduce the bill again and transmit it to the House in accordance with normal procedures. The Senate subsequently acted as suggested.475
The Constitution provides that on the presentation of proposed laws for assent, the Governor-General declares, according to his discretion but subject to the Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves assent for the Queen’s pleasure, or he may recommend amendments.476 Before assenting, the Governor-General formally receives written advice from the Attorney-General as to whether there are any amendments that the Governor-General should recommend, and as to whether the Governor-General should, in the Attorney-General’s opinion, reserve the bill for the Queen’s pleasure. This advice, known as the ‘Attorney-General’s Certificate’, is prepared by the Office of Parliamentary Counsel.
Back to topBack to top Preparation of bills for submission for assent
When a bill which originated in the House of Representatives has finally passed both Houses in identical form, the assent copies of the bill are printed, incorporating any amendments not yet incorporated and some minor adjustments, including a special cover and the addition to the back page of the Clerk’s certificate stating that the bill originated in the House and has finally passed both Houses.477The Clerk’s certificate in the circumstances of the passage of a normal bill is:
I HEREBY CERTIFY that this Bill originated in the House of Representatives and has been finally passed by the Senate and the House of Representatives.
On the back page of the assent copy of a bill are printed the words of assent used by the Governor-General as follows:
IN THE NAME OF HER MAJESTY, I assent to this Act.
If a bill were to be reserved for assent, the Governor-General would cross out these words and write in the following:
I reserve this proposed law for Her Majesty’s pleasure.
The question has been raised as to whether it would be more correct to use the word ‘bill’ or the constitutional expression ‘proposed law’ instead of ‘Act’ in the words of assent. The Parliamentary Counsel has expressed a view for the retention of the word ‘Act’, on the ground that the Governor-General assents to the bill and converts it into an Act, uno ictu.
Four copies of bills are presented to the Governor-General for assent. When assented to, two copies are returned, one for the originating House and one for the other House. The Governor-General’s Office retains one copy and forwards another to the Office of Parliamentary Counsel.
It is desirable to have bills available for the Governor-General’s assent before a Parliament is prorogued or the House is dissolved.478 This may mean that there is not sufficient time for the specially printed assent copies of the bill to be prepared, and ordinary copies (that is, a print of the bill with manuscript amendments) may have to be submitted to the Governor-General. Where this occurs, the normal assent copies are obtained as soon as possible and forwarded to the Official Secretary to the Governor-General with a note seeking the Governor-General’s signature for permanent record. This procedure may also be adopted in other circumstances where a clearly demonstrable need for urgent assent exists.
The Governor-General advises each House by message of the assent to bills, and the messages are announced in each House.479
It has become the practice for the first bill to be assented to by a newly-appointed Governor-General to be presented by the Speaker in person, accompanied by the Clerk of the House. The Attorney-General has sometimes been present also, and, as a formal procedure, at the Governor-General’s request, provided advice as to the desirability of assent. The Speaker informs the House accordingly.480
Other than on rare occasions the Governor-General, in the Queen’s name, is pleased to assent to the bill immediately. The Queen may disallow any law within a year from the Governor-General’s assent, an action which has never been taken. Such disallowance on being made known by the Governor-General by speech or message to each of the Houses of Parliament, or by proclamation, would annul the law from the day when the disallowance was made known.481
Bills reserved for the Queen’s assent482
Resulting from the Statute of Westminster in the United Kingdom in 1931 and the passing of the Statute of Westminster Adoption Act 1942483 by the Australian Parliament, the necessity was removed of reserving for the Queen’s assent certain shipping and related laws. The Constitution484 provides that proposed laws containing any limitation on the prerogative of the Crown to grant special leave of appeal from the High Court to the Privy Council shall be reserved for Her Majesty’s pleasure. However, since the passing of the Privy Council (Limitation of Appeals) Act 1968485 and the Privy Council (Appeals from the High Court) Act 1975,486 the latter bill being the last bill of any kind reserved for the Queen’s assent,487 it would appear that there will be no further bills coming within this ground of reservation.
In respect of other bills reserved for the Queen’s assent, in the lack of any legal requirement a decision would probably be based on the appropriateness of the bill (Flags Act 1954) or the appropriateness of the occasion (that is, the Queen’s presence in Canberra), or both (Royal Style and Titles Act 1973488). In the latter case the Prime Minister informed the House that the Queen had indicated that it would give her pleasure to approve the legislation personally.489
A proposed law reserved for the Queen’s assent shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen’s assent the Governor-General makes known, by speech or message to each House, or by proclamation, that it has received the Queen’s assent.490
Back to topBack to top Presentation of constitution alteration bills
On the passage of a constitution alteration bill through both Houses, it is necessary to present a copy of the bill to the Governor-General in order that a referendum may be held. A certificate, signed by both the Clerk and the Speaker and indicating the date of final passage, is printed at the top of the first page of the bill in the following terms:
THIS Proposed Law originated in the House of Representatives, and on [date], finally passed both Houses of the Parliament. There was an absolute majority of each House to the passing of this Proposed Law. In accordance with section 128 of the Constitution, the Proposed Law is required to be submitted to the electors.
In the case of a constitution alteration bill which has twice passed the House and which has on each occasion been rejected by the Senate, or the Senate has failed to pass it or passed it in a form not agreeable to the House of Representatives, both bills passed by the House are presented to the Governor-General with certificates signed by the Clerk and the Speaker. For example, the certificates in respect of the Constitution Alteration (Simultaneous Elections) Bill 1974 was on the first occasion as follows:
THIS Proposed Law originated in the House of Representatives and on 14 November 1973 was passed by the House of Representatives by an absolute majority as required by section 128 of the Constitution. The Proposed Law was transmitted to the Senate on 15 November 1973 and had not been returned to the House of Representatives at the date of the prorogation of the Parliament on 14 February 1974.
and on the second occasion:
THIS Proposed Law originated in the House of Representatives and on 6 March 1974 was passed by an absolute majority as required by section 128 of the Constitution. The Proposed Law was transmitted to the Senate for its concurrence on 6 March 1974 and has not to date been returned to the House.
The certificate in respect of the Constitution Alteration (Mode of Altering the Constitution) Bill 1974 introduced on the first occasion was in the following form:
THIS Proposed Law originated in the House of Representatives, and on 21 November 1973 was passed by the House of Representatives by an absolute majority as required by section 128 of the Constitution. The Proposed Law was transmitted to the Senate for its concurrence on 21 November 1973. On 4 December 1973 the Senate returned the Proposed Law with amendments to which the House of Representatives did not agree. On 5 December 1973 the Senate insisted upon its amendments disagreed to by the House. The House insisted on disagreeing to the amendments insisted on by the Senate and the Bill was laid aside.
The certificate in respect of the bill introduced on the second occasion was similar to that for the Constitution Alteration (Simultaneous Elections) Bill as indicated above.
Where a constitution alteration bill has been approved by the electors, and no petition disputing the referendum has been filed in the time allowed by law, the following certificate is printed on the bill and signed by the Clerk and the Speaker:
THIS is a copy of the Proposed Law as presented to the Governor-General, and, according to the Constitution, in pursuance of a Writ of His Excellency the Governor-General, submitted to a Referendum of the Electors. The period allowed by law for disputing the Referendum has expired, and no petition disputing the Referendum, or disputing any return or statement showing the voting on the Referendum, has been filed. The said Proposed Law was approved in a majority of the States by a majority of the Electors voting, and also approved by a majority of all the Electors voting.
The Bill is now presented to the Governor-General for the Queen’s assent.
The Constitution makes provision for the Governor-General, in practice on the advice of the Attorney-General, to return to the House in which it originated, a proposed law presented for assent with a recommendation for amendment.491 On all occasions of such amendments the Governor-General has acted on advice when it has become apparent to the Government, after a bill has passed both Houses, that further amendment to the bill is desirable, for example, by reason of an error in the bill. On all but one occasion (see below) the Houses have agreed to the amendments recommended.
Standing order 176 supplements the constitutional provision concerning amendments recommended by the Governor-General to bills presented for assent. Such amendments are considered and dealt with in the same manner as amendments proposed by the Senate. Any amendment is recommended by message and is considered by the House.492
When the House has agreed to any amendment proposed by the Governor-General with493 or without494 amendment, such amendments, together with any necessary consequential amendments, are sent to the Senate for its agreement. The House transmits to the Senate by message a copy of the Governor-General’s message, together with a copy of the bill forwarded for assent, acquaints the Senate of the action the House has taken in respect of the amendment, and requests the concurrence of the Senate.495 Any amendments made by the Senate are dealt with in the same manner as amendments made by the Senate to House bills. The Senate returned the message of the Governor-General recommending amendments in the Customs Tariff (British Preference) Bill 1906, together with a copy of the bill as presented for assent, and acquainted the House that the Senate had disagreed to the amendments recommended by the Governor-General. The message from the Senate was ordered to be taken into consideration immediately and the House resolved not to insist on the amendments disagreed to by the Senate.496 The Governor-General reserved the bill for the King’s assent which was never given.
Amendments recommended by the Governor-General to Senate bills and which have been agreed to by the Senate are forwarded for the concurrence of the House by means of message. The form of the message is similar to that of the House and conveys recommended amendments of the Governor-General and an assent copy of the bill.497 The message is considered in the same manner as amendments made by the Senate on the House’s amendments to bills first received from the Senate.498
When recommended amendments are made, the assent copy of the bill is reprinted and presented again to the Governor-General for assent. The Speaker and the Clerk sign letters to the Governor-General and the Official Secretary, respectively, confirming that the recommended amendments have been made. If any amendments recommended have been disagreed to by the House, or if no agreement between the two Houses is arrived at prior to the last day of the session, the Speaker shall again present the bill for assent in the same form as it was originally presented.499
Errors in bills assented to
In 1976 the Governor-General purportedly assented to a bill which had not been passed by both Houses of Parliament as required by section 58 of the Constitution. A States Grants (Aboriginal Assistance) Bill 1976 passed the House500 but did not proceed past the second reading stage in the Senate. A second bill, slightly different in content but with exactly the same title, passed the House501 and the Senate.502 Due to a clerical error in the Department of the House of Representatives, the Clerk’s certificate, as to the bill having originated in the House and having finally passed both Houses, was placed on the first bill which had not passed both Houses and that bill was assented to. When the error was discovered, the Governor-General cancelled his signature on the incorrect bill and gave his assent to the second bill, which had passed both Houses.503 A similar cancellation occurred in the case of the Family and Community Services and Veterans’ Affairs Legislation Amendment (Debt Recovery) Bill 2001, when due to a clerical error a Senate amendment which had not been agreed to by the House was incorporated into the original assent print.504
It is considered that should a bill be assented to with typographical or clerical errors in it, if necessary a court would interpret the Act so as to remedy the mistake (the ‘slip rule’) and there would be no question of invalidity. Depending on the circumstances, legislative amendment at a suitable time may still be desirable.505
Acts are numbered in each year in arithmetical series, beginning with the number 1, in the order of assent.506 When the signed assent copy of the Act is returned from the Governor-General, details concerning Act number and date of assent are transposed to a ‘publication’ copy of the Act. If there is no commencement provision the date of commencement is inserted (although modern practice is that explicit commencement provisions are always included in bills). While it is not possible to make corrections in bills after assent, typographical corrections found necessary during the checking processes before assent may be made. Since 1985 the dates of Ministers’ second reading speeches in each House have been noted on the last page of the Act. When the Act has been printed with the additional details and the new material checked, permission is given to release copies of the Act.
Details of assent are published in the Gazette by the authority of the Clerk of the House (or the Clerk of the Senate for bills originating in the Senate). The Gazette notification shows the Act number, long title, short title and date of assent.
Presentation of double dissolution bills
When a Prime Minister is to request the Governor-General to dissolve both Houses of the Parliament because of disagreement between the Houses in respect of a bill (or bills), the Prime Minister asks the Clerk in writing for a copy of the bill, duly certified by the Clerk as to the proceedings in the House on the bill, to accompany the submission to the Governor-General. There is no requirement of the Constitution or the standing orders of the House in respect of such a certificate, but it has become the practice for such a certificate to be attached to a copy of a bill which is to be the basis of a request for a dissolution of both Houses.
A certificate reciting the parliamentary history of the bill is attached to the Minister’s copy of the bill as first introduced and also to the second bill passed after the interval of three months, with the exception of a bill amended in the House, in which case the third reading print is used for the first bill and the Minister’s introduced copy for the second bill. The traditional form of the certificate has been as follows:
THIS Bill originated in the House of Representatives and, on [date], was passed by the House of Representatives. The Bill was transmitted to the Senate for its concurrence on [date] and
- had not been returned to the House of Representatives at the date of the prorogation of the Parliament on [date]; or
- has not to date been returned to the House.
Where the history of the bill has been more complex the certificate reflects this. For example, the certificate used in respect of the Petroleum and Minerals Authority Bill 1973 (one of the six bills submitted as a basis for a double dissolution on 11 April 1974), as first introduced, was as follows:
THIS Bill originated in the House of Representatives and on 12 December 1973 was passed by the House of Representatives. The Bill was transmitted to the Senate for its concurrence on 12 December 1973 and had not been returned to the House of Representatives at the date of the prorogation of the Parliament on 14 February 1974. The Bill lapsed by reason of the prorogation. On 7 March 1974 the House of Representatives requested the Senate to resume consideration of the Bill and on 13 March 1974 the Senate acquainted the House that it had agreed to resume consideration of the Bill. To date the Bill has not been returned to the House.
Should the deadlock between the Houses in respect of the legislation continue after the double dissolution, section 57 of the Constitution provides further that the Governor-General may convene a joint sitting of members of both Houses, which may deliberate and shall vote together on the proposed law. In 1974, the only occasion when a joint sitting for this reason eventuated, the Prime Minister requested certified copies of the six bills indicating details of their subsequent consideration by the Houses following the double dissolution. The bills were necessary to support a submission to the Governor-General for the convening of a joint sitting. A certificate similar to those used on the bills submitted for the double dissolution was attached to a copy of each of the bills.
(And see Chapter on ‘Disagreements between the Houses’.)
Delegated (also known as subordinate) legislation is legislation made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Parliament has regularly and extensively delegated to the Executive Government limited power to make certain regulations under Acts. Other forms of delegated legislative authority include:
- ordinances (of Territories and regulations made under those ordinances507);
- determinations (for example, of the Public Service Commissioner,508 the Presiding Officers509 and the Remuneration Tribunal510);
- orders511 and rules;1512
- standards, principles, guidelines, declarations, notices, plans of management, approvals.
Delegated legislation can take a multitude of forms and this list is not exhaustive. The Legislative Instruments Act uses the term ‘legislative instrument’ to cover the wide range of delegated legislation, although specific types of delegated legislation are excluded from the definition of legislative instrument and thus from the application of the Act.514
Delegated legislation is necessary and often justified by its facility for adjusting administrative detail without undue delay, its flexibility in matters likely to change regularly or frequently, and its adaptability for other matters such as those of technical detail. Once Parliament has by statute laid down the principles of a new law, the Executive may by means of delegated legislation work out the application of the law in greater detail within, but not exceeding, those principles.
It is possible, although rare, for an Act to provide that provisions set out in the Act can be altered by regulation. The Re-establishment and Employment Act 1945 gave the Governor-General power to make regulations providing for the repeal or amendment of, or addition to, any provision of the Act,515 subject to the disallowance provision of the Acts Interpretation Act.516 The power thus given was unusual, and one that should not be given except under special circumstances (a war-time limit was placed on any amendments of the Act effected by the regulations). The Attorney-General stated that in this case it was thought that the methods for re-establishment and employment laid down in the Act, being to some extent of an experimental nature, might need urgent revision from time to time in the light of experience, and, for that reason, the regulation-making power had been extended. Moreover, the cessation of operation of any regulation under the Act at the termination of the war would then necessitate an overhaul of the Act and amendments made by regulations.517 The Re-establishment and Employment Act 1951 repealed the power of amendment by regulation and provided for the repeal of the Re-establishment and Employment Regulations and the continuance of certain amendments.518 In more recent times the Administrative Arrangements Act 1987 empowered the Governor-General to make amendments to any Act by regulation if made necessary or convenient as a result of specified new administrative arrangements. However, a ‘sunset’ provision provided that this section of the Act would only be in effect for one year.519
Legislative Instruments Act
Before 2005, delegated legislation was governed by the Acts Interpretations Act 1901, as outlined in earlier editions of this publication. The Legislative Instruments Act 2003 commenced operation on 1 January 2005.
The Legislative Instruments Act re-enacts, with some amendment, the provisions of former sections 46A and 48 to 50 of the Acts Interpretation Act that related to regulations and extends their operation to all legislative instruments. Changes include the provision for registration to replace gazettal as the means of publication of legislative instruments, and the shortening of the time allowed for their presentation to each House. Explicit provision for partial disallowance is also new. In contrast to the previous situation in which instruments were declared disallowable by their enabling legislation, instruments are now disallowable unless specifically exempted.
Back to topBack to top Making and registration of legislative instruments
Notification of intention and consultation
Makers of legislative instruments are required, in most circumstances, to notify their intention to make a legislative instrument and then to consult with persons and organisations likely to be affected by the proposal.520
Register of Legislative Instruments
All new legislative instruments made are required to be recorded in the Federal Register of Legislative Instruments. The Register is a database of legislative instruments (including compilations consolidating amendments) which is publicly accessible.521 Generally, a legislative instrument that is required to be registered is not enforceable unless it is registered.522
The Act provides for pre-existing legislative instruments to be progressively registered—instruments less than 5 years old within a year and older instruments within three years.523 If a pre-existing legislative instrument is not registered on or before the relevant date it is taken to be repealed.524
With some exceptions, a ten year sunset clause is imposed on all registered instruments, including pre-existing instruments.525 Continuation of the instrument may be granted by resolution of either House, in which case it is taken to have been remade.526
Delegated legislation is required to be laid before each House, thereby becoming subject to parliamentary scrutiny and the Parliament’s ultimate power of veto.
Consultation of the relevant enabling Act in conjunction with the Legislative Instruments Act is necessary to ascertain the conditions operating in relation to any particular form of delegated legislation or type of instrument. The provisions of an existing enabling Act in respect of delegated legislation may be different from the provisions of the Legislative Instruments Act—for example, by replacing the tabling or disallowance periods with a different period.527 However, it should be noted that in such cases the Legislative Instruments Act may now override the provisions of the enabling Act.528
Previously, if no time was prescribed in the enabling Act, regulations had to be laid before each House within 15 sitting days after being made.529 Under the Legislative Instruments Act legislative instruments must now be tabled in each House within 6 sitting days following registration, even in cases where the instrument is not disallowable. Unless laid before each House within this time limit, a legislative instrument ceases to have effect.530 Explanatory statements for legislative instruments are also presented.531
In practice the tabling period may extend for some time, as a long adjournment or even dissolution and election could intervene between sitting days. In the latter case there could, for example, be four sitting days in one Parliament and two in the next. Instruments do not need to be presented again in the new Parliament.532
After a legislative instrument has been registered, no instrument the same in substance can be made while the original instrument remains subject to the tabling requirement, unless the remaking of the instrument has been approved by both Houses.533
After registration, legislative instruments are delivered to the Clerk (or staff of the House) and are recorded in the Votes and Proceedings as ‘deemed documents’.534 An instrument so delivered to the Clerk is deemed to have been presented to the House on the day on which it is recorded in the Votes and Proceedings. Documents received on a sitting day before 5 p.m. (4 p.m. on Thursdays) are recorded in the Votes and Proceedings of the day of receipt. In other circumstances they are recorded in the Votes and Proceedings of the next sitting day.
Although this is not common, legislative instruments can also be presented to the House in the same manner as ordinary documents, and a motion to take note of the document or documents may be moved and debated. An example of this occurred in 1986 when a Minister presented an amending regulation to certain Export Control (Orders) Regulations and made a ministerial statement concerning them. Debate ensued on the question that the House take note of the documents (regulation and statement) to which a Member moved an amendment to disallow the regulation; debate was adjourned and not resumed.535
Not all legislative instruments that are required to be presented are able to be disallowed. The Legislative Instruments Act lists categories of legislative instrument that are not subject to disallowance, and those that are not subject to disallowance unless subject to disallowance under their enabling legislation or by means of some other Act.536
In most cases legislative instruments are effective unless and until disallowed, but an Act may provide that an instrument made pursuant to it does not come into effect until the disallowance period has expired.
If a notice of a motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after a copy of the instrument was laid before that House; and within 15 sitting days of that House after the giving of that notice, the House passes a resolution, in pursuance of the motion, disallowing the instrument or provision, the instrument or provision so disallowed then ceases to have effect.537
If at the end of 15 sitting days of that House after the giving of that notice of motion: the notice has not been withdrawn, the motion has not been called on, and the House has not passed a resolution deferring its consideration; or the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of, the instrument or provision specified in the motion is then taken to have been disallowed and ceases at that time to have effect.538
If the House is dissolved or expires, or the Parliament is prorogued, before the expiration of the 15 sitting days, any legislative instrument that is the subject of a disallowance motion is taken to have been laid before the House on the first sitting day after the dissolution, expiry or prorogation.539Any notice to disallow given in the previous Parliament (or in the case of prorogation, the previous session) must be given again to have effect.540
In practice the disallowance period may extend for some time, even in the same session, as a long adjournment could intervene between sitting days.541
Where a legislative instrument or provision of a legislative instrument has been disallowed or taken to have been disallowed, an instrument or provision that is the same in substance may not be made within six months after the date of disallowance unless the House concerned has rescinded its resolution of disallowance or approved the re-making of the instrument or provision, as the case may be.542
While a legislative instrument is subject to disallowance, a House may require any document incorporated by reference in the instrument to be made available for inspection.543
Each sitting day the Table Office produces a Disallowable Instruments List. This is a listing of instruments which have been presented and which are subject to possible disallowance, showing the number of sitting days remaining for Members to give notice of disallowance.544
When a notice of disallowance is given it appears in the Notice Paper with a note showing the number of sitting days remaining before the instrument or provision concerned is taken to be disallowed.545
Of the hundreds of pieces of delegated legislation presented each year very few are ever formally considered, let alone disallowed, by the House. Almost invariably, notices of disallowance are given by private Members,546 and these are subject to the same procedures as other items of private Members’ business. However, the Selection Committee does not select them for debate during the private Members’ business period on Mondays, and in view of the fact that disallowance will occur unless a notice is called on and dealt with within the specified time, the general practice is for the Government to move that standing orders be suspended to permit them to be moved and debated during government business time.547
The passage of a resolution of disallowance or the deemed disallowance of a legislative instrument is notified in the Gazette ‘for general information’ by the Clerk of the House responsible.548
Reckoning of time
Pursuant to the Acts Interpretation Act any period of time prescribed or allowed by an Act dating from a given day, act or event, unless the contrary intention appears in the Act, is reckoned exclusive of the day of such act or event.549 The day on which a legislative instrument is presented therefore is not taken into account for the purposes of determining the number of sitting days within which it may be disallowed. A sitting may extend beyond a calendar day but constitute only one sitting day.500 Similarly, a sitting which is suspended and resumed on a later day constitutes only one sitting day.551 Any disputed question on the reckoning of time would be, initially at least, for the House itself to decide. The possibility of the matter being subsequently the subject of litigation cannot be ruled out, in which case it could be a matter for the courts to consider.
A notice of disallowance lodged on the last possible sitting day has been regarded as valid, the provisions of standing order 108—that a notice only becomes effective when it appears on the Notice Paper—not being seen as cutting down the then provisions of the Acts Interpretation Act which referred to a notice given ‘within 15 sitting days’.552
The question has been raised as to whether a notice of motion disallowing a legislative instrument should be accepted before the legislative instrument is laid before the House. The matter was canvassed in the Senate in 1942 when a Minister informed the Senate that Senators could move for the disallowance of a regulation without it being tabled, based upon the High Court judgment in Dignan’s case.553
In response to a request for an opinion, the Attorney-General’s Department advised the Clerk of the Senate on 25 March 1942 that the decision in Dignan’s case should still be regarded as authority for the proposition that it is not a condition essential to the validity or operation of a resolution of disallowance that the regulations should first be laid before the House. The Chairman of the Senate Regulations and Ordinances Committee, in a memorandum on the disallowance of regulations, and on the judgments in Dignan’s case, concluded that the question of whether disallowance is effective where a regulation is not laid before the Senate (or the House) was still an open one as far as the High Court was concerned, and that any doubt on the matter could be avoided if motions for disallowance were not moved before the regulations were tabled.554 It is considered that a similar attitude might commend itself to the House of Representatives.
In the House a notice of motion has been given before the relevant regulations were tabled. On 29 November 1940 Statutory Rules No. 269 (National Security Aliens Control Regulations) were made, and on 3 December 1940 a Member gave a notice of motion for their disallowance, whereas the regulations were not tabled until 9 December 1940.555 On 2 April 1941 the Member raised a matter of privilege in which he claimed that the regulations were null and void as his motion for disallowance had not been dealt with within 15 sitting days after notice was given. The Minister replied that he believed the motion was out of order, as it was placed on the Notice Paper some days before the statutory rules were tabled; if the Member wished to take any action in the matter, the opportunity to do so was still open to him. The Speaker stated that the question of whether the statutory rules were null and void was a matter of law, the curtailment of any rights of the Member was a matter of privilege. The Member concluded, not by moving a motion relating to privilege, but rather by giving notice of motion of no confidence in the Minister. Later in the day, standing orders having been suspended, the Member moved the no confidence motion but it lapsed for want of a seconder.556
The Parliament’s control of delegated legislation is usually exercised through the disallowance procedure. An alternative means of parliamentary control is to provide that specific delegated legislation may come into force only with the explicit approval, by affirmative resolution, of both Houses. Although not common, this practice has been used from time to time in recent years, especially in respect of certain types of legislative instrument variously described as statements, charters, agreements, declarations, guidelines, etc.557
An Act may provide for the Houses to be able to amend the instrument in question during the process of approving it. If one House amends such an instrument the other House is informed by message, and when the message is considered, the motion put, for example, ‘That the House approves the form of agreement . . . as amended by the Senate and conveyed in Senate Message No. . . .’. The motion can be amended to amend the amendments or make further amendments.558
The conditions for approval vary and depend on the requirement of the particular Act. The requirement may be simply that an instrument must be approved by both Houses to come into effect.559 A more complicated requirement may be, for example, that an instrument comes into effect after 15 sitting days of being tabled in both Houses, unless a notice of motion to amend the instrument is given in either House, in which case the instrument, whether or not amended, must be approved by both Houses.560
While notices of motions of approval moved by Ministers are taken as government business, motions of amendment, as in the above example, would in the normal course be moved by opposition Members and be subject to the usual private Members’ business procedures.561
Approval provisions have sometimes been inserted into bills in the Senate when it has been thought that particular instruments merited special control procedures.562 However, there may on occasion be another reason for their use—the approval of regulations by both Houses at the time of presentation does offer the possibility of a more rapid and certain outcome than waiting the required period for potential disallowance. An Act has provided for either disallowance or approval in respect of the same regulations—the disallowance procedures ceasing to apply in the case of the regulations being approved.563
Unless provided in the enabling Act (or other legislation) the disallowance procedures of the Legislative Instruments Act do not apply to legislative instruments that, in accordance with the provisions of the enabling legislation, do not commence unless they are approved by either or both Houses of Parliament.564
The Senate, in 1932, established by standing order a Standing Committee on Regulations and Ordinances to be appointed at the commencement of each Parliament, to which all regulations, ordinances and other instruments made under the authority of Acts of the Parliament, which are subject to disallowance or disapproval by the Senate, and which are of a legislative character, stand referred for consideration and, if necessary, report. The committee scrutinises delegated legislation to ensure:
- that it is in accordance with the statute;
- that it does not trespass unduly on personal rights and liberties;
- that it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and
- that it does not contain matter more appropriate for parliamentary enactment.565
The committee traditionally operates on a non-partisan basis and refrains from considering the policy of delegated legislation. The committee’s reports usually consist of accounts of amendments made to legislation to accommodate the committee’s objections. Notices of disallowance are given on occasion, but these are often withdrawn after undertakings are received from Ministers, for example, to have provisions changed.566
Construction of Acts subject to the Constitution
Every Act must be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth.567 In some circumstances an Act may be read down or read as if it did not contain any invalid provisions, so that it may be given effect to the extent that it is not in excess of the power of the Commonwealth.568
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act, whether expressly stated in the Act or not, must be preferred.569 The purpose of an Act may be stated in an objects clause, its long title and, if one exists, the preamble. A preamble does not have separate legislative effect, but may be used for clarification if the meaning of a section is unclear.
Use of extrinsic material in the interpretation of an Act
If any material not forming part of an Act is capable of assisting in the construction of a provision of the Act, consideration may be given to the material to confirm that the meaning of the provision is the ordinary meaning conveyed by the text, or to determine the meaning of the provision when the provision is ambiguous or obscure or the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or unreasonable.
Material that may be considered in the interpretation of a provision of an Act includes:
- all matters not forming part of the Act that are set out in the document containing the text of the Act as printed;
- any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or similar body that was laid before either House before the provision was enacted;
- any relevant report of a parliamentary committee presented before the provision was enacted;
- any treaty or other international agreement referred to in the Act;
- any explanatory memorandum relating to the bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House by a Minister before the provision was enacted;
- a Minister’s second reading speech on the bill containing the provision;
- any document that is declared by the Act to be a relevant document;570 and
- any relevant material in the Journals of the Senate, the Votes and Proceedings of the House of Representatives or in any official record of parliamentary debates.
In determining whether consideration should be given to extrinsic material, or in considering the weight to be given to any such material, regard shall be had to the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision, taking into account its context and the purpose or object underlying the Act, and to the need to avoid prolonging legal or other proceedings without compensating advantage.571
Back to top