Legislation and the financial initiative: what happened to the Opposition amendments to the Carbon Tax Repeal Bills?

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Legislation and the financial initiative: what happened to the Opposition amendments to the Carbon Tax Repeal Bills?

Posted 27/11/2013 by Sophia Fernandes

The Clean Energy Legislation (Carbon Tax Repeal) Bill 2013 and other related Bills passed the House of Representatives on 21 November 2013 with no amendments. While this is not an unusual occurrence, what is notable is that Opposition amendments to the package of bills were not debated during the consideration-in-detail stage.

The Speaker, the Hon. Bronwyn Bishop, made a ruling prior to the commencement of the consideration-in-detail stage of the Bills, that the amendments could contravene standing orders 179(a) and 179(b):
179. Taxation proposals initiated by Minister

(a) Only a Minister may initiate a proposal to impose, increase, or decrease a tax or duty, or change the scope of any charge.

(b) Only a Minister may move an amendment to the proposal which increases or extends the scope of the charge proposed beyond the total already existing under any Act of Parliament.

(c) A Member who is not a Minister may move an amendment to the proposal which does not increase or extend the scope of the charge proposed beyond the total already existing under any Act of Parliament.
The Speaker’s reasoning was that:
 … there may be some doubt as to the impact of bringing forward the date of the commencement of the emissions trading scheme, which is the substance of the honourable member's amendments. On one hand, the amendments should be allowed to stand as it could be argued the expected and likely effect of the calculation of the proposed liability may not exceed that set by the current law. On the other hand, because there could in fact be no certainty, it would be legally possible that the amendments would have the effect that the liability would exceed that provided under the current law. In my view the uncertainty is too great to allow the amendments to proceed. Accordingly, I am not prepared to allow them to be moved in their present form.
The Opposition strongly objected to this ruling, arguing that the amendments had been circulated in the morning and they should have been notified earlier about the Speaker’s decision in order to change the amendments. They also pointed out that the amendments had been drafted with the clerks of the House of Representatives and should be procedurally sound. Manager of Opposition Business, the Hon. Tony Burke moved a dissent from the Speaker’s ruling which was voted down.

In explaining her ruling, the Speaker pointed out she was upholding precedent and cited a ruling made by Speaker Jenkins on 2 June 2011. Incidentally, the ruling that the Speaker referred to was made on a Bill that she had introduced as the Member for Mackellar. Speaker Jenkins made a statement on the Abolition of Age Limit on Payment of the Superannuation Guarantee Charge Bill 2011 pointing out that the financial initiative in the Bill meant that it could not proceed in its current form. Speaker Jenkins cited standing orders 179(a) and 180(c) in his ruling. In the case of this ruling, the then Manager of Opposition Business, the Hon. Christopher Pyne moved a dissent from the Speaker’s ruling, which was negatived.

The rules that govern the financial initiative are constructed to protect the public purse from the interests of individuals. The financial initiative can be described as in House of Representatives Practice (p.420):
It is a long established and strictly observed rule which expresses a principle of the highest constitutional importance that no public charge be incurred except on the initiative of the Executive Government.
The imperative of the Executive to initiate or change appropriations comes from section 56 of the Constitution:
56. 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.
 House of Representatives Practice (p.424) further explains:
As the Governor-General acts on ministerial advice, it is not possible for a private Member to obtain the Governor-General’s recommendation for an appropriation. Furthermore, when a recommendation is required, only a bill introduced by a Minister may be proceeded with before the message is announced. Therefore in practice only a Minister may introduce a bill which appropriates public moneys.
The Senate deals with appropriation Bills in a different manner to the House of Representatives. Section 53 of the Constitution places the power to introduce appropriation or taxation Bills solely in the House of Representatives. Section 53 also restricts the power of the Senate to amend these Bills or increase any charges. 

On 28 October 2010, Senator Fiona Nash (NSW) introduced a private Senator’s Bill that changed youth allowance eligibility provisions for rural students. Although the Bill passed the Senate, the House of Representatives declined, after a division, any further consideration of the Bill. The Speaker made a statement pointing to Sections 53 and 56 of the Constitution and questioned the constitutional validity of the bill:
As I understand it, this bill provides for increases in payments that are funded by means of standing appropriations in the Social Security Administration Act. I understand further that House practice has been that such bills are proposed laws appropriating revenue or moneys, and that they require a message from the Governor-General in accordance with section 56 of the Constitution.
For further information see the Clerk of the House of Representative’s advice on The Law Making Powers of the Houses – three aspects of the Financial initiative.

For information on the stages of the passage of a bill through parliament see this Senate brief.

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