No. 23 - Provisions governing the conduct of senators in debate

Brief Guide No. 22 outlined constitutional provisions, rules of the Senate and statutory provisions regulating the conduct of Senators and which operate as an enforceable code of conduct.

This issue considers those procedural rules (and some conventions) which govern the conduct of senators in the chamber and underpin the courtesies of debate. These rules are derived from standing orders, resolutions of the Senate and rulings of Presidents (which have the force of orders).

1. Role of the Chair

The role of the President and, by implication, any senator chairing the Senate, is to maintain order (standing order 184(1)).

When chairing the Senate, the Deputy President or a temporary chairman of committees has all the powers of the President to maintain order, which includes the power to make rulings. They may also refer matters to the President.

If the President rises during a debate, any senator speaking or seeking the call must sit down and the Senate must be silent so that the President may be heard without interruption (standing order 184(2)). When the President is putting a question, senators must not walk out of or across the chamber (standing order 184(3)). These rules reinforce the authority of the chair and the requirement for senators to defer to the authority of the chair.

It is the responsibility of all senators to give assistance in upholding normal procedure and behaviour in the Senate.

2. Addressing the Chair

In the Chair, the President is addressed as "President" or "Mr/Madam President". Likewise, the Deputy President is addressed as "Deputy President" or "Mr/Madam Deputy President". A member of the panel of temporary chairs of committees appointed under standing order 12 is addressed as "Acting Deputy President" or "Mr/Madam Acting Deputy President". In committee of the whole, the form of address is "Chair" or "Mr/Madam Chair".

3. The call

An inherent duty of the Chair is to allocate the call to speakers in a debate. Senators seeking the call should rise and address the President (standing order 186(1)). Subject to the practices of the Senate, if two or more senators rise to speak, the President gives the call to the senator who, in the President's opinion, first rose in his or her place (standing order 186(2)).

The practices of the Senate in relation to the call were enumerated by the Procedure Committee in its Second Report of 1991. These practices were identified from presidential rulings and include the following: 

  • senators are usually called from each side of the chamber alternately;
  • the call is given to the Leader of the Government in the Senate and the Leader of the Opposition in the Senate before other senators;
  • a minister in charge of a bill or other matter before the Senate is usually given the call before other senators;
  • an Opposition senator leading for the Opposition in relation to a bill or other matter before the Senate is usually given the call before other senators;
  • leaders of other non-government parties are usually given the call before other senators, subject to the foregoing practices;
  • senators who have a right to the call under these practices are discouraged from seeking it if that would have the effect of closing the debate and other senators wish to speak.

These practices operate in descending order. For many debates, informal lists of speakers compiled by the whips' offices are circulated. Such informal lists are regarded as being subject to the above practices. They do not bind the Chair but are regarded as a guide.

4. Moving around the chamber

On entering or leaving the chamber, a senator is required to acknowledge the Chair (standing order 185(1)). This is done with a brief neck bow. Senators are required to take their places and not linger in the passageways. Nor must they walk or stand between the Chair and the senator who is speaking, or between the Chair and the Table. The purpose of these rules is to reinforce the primacy of the Chair, to ensure physical orderliness and to preserve the line of sight between the Chair and the senator speaking.

Other standing orders reinforce the need for senators generally to be in their seats when in the chamber. Under standing order 75, for example, senators rising to support a matter of public importance or urgency must rise in their places. After divisions are taken, senators are encouraged by the Chair to resume their seats or leave the chamber.

5. The right to speak

In any debate, senators may speak once on a question before the chair and once on an amendment. The mover of a substantive motion may speak in reply but there is no right of reply on a procedural motion (such as a motion to suspend standing orders). In committee of the whole, a senator may speak more than once but, if no other senator rises to speak, a senator who has spoken once may speak again for the allowed time but no longer continuously (standing orders 188 and 189). For more information, see chapter 14 of Odgers' Australian Senate Practice, 13th edition.

If a senator is followed in debate by another senator who misquotes, misunderstands or misrepresents the first senator's speech, that senator may be heard again, without leave, to explain the misrepresentation, but no new material may be introduced and the matter may not be debated (standing order 191). This is the only other exception to the rule that senators may speak once in a debate (unless they are the mover). The explanation must occur before the question is put on the motion. Otherwise, senators may seek leave at a later time to make a personal explanation under standing order 190 (see below).

6. Speaking in debate

In most debates, senators are subject to individual time limits and there is sometimes a total time limit on particular types of debate. When a senator is given the call, the clock is set to show the time remaining for that senator to speak. A summary of time limits is contained in the standing orders. Time limits may be modified by temporary orders, such as the temporary order currently applying to time limits on the asking and answering of questions without notice.

Senators speak from their seats, subject to certain modifications that have been agreed to by Presidents (standing order 48) or by resolution of the Senate. For example, the front seat immediately to the right of the President may be occupied by the minister leading for the government on a particular item of business. Likewise, the front seat immediately to the left of the President may be occupied by the shadow minister leading for the opposition on a matter. Senators performing duty as whips may speak from the seat of the government or opposition whip.

When senators participate in a debate, they must address the Chair. Presidential rulings have established that it is disorderly to address other senators directly across the chamber. Any such remarks must be directed to the Chair and must refer to other senators only in the third person. This is regarded as a technique to encourage courteous and civilised debate which is characterised by "good temper and moderation", according to the UK parliamentary authority, Erskine May.

Senators are not permitted to read speeches (standing order 187). This rule is regarded as a protection against senators reading out speeches that have been written by others, and as preserving the exchange of views which is the hallmark of true debate. Some exceptions are tacitly allowed, including the acceptance of ministers reading second reading speeches and statements prepared by officials. By presidential ruling, senators have been permitted to refer to "copious notes". Lecterns on which to rest their "copious notes" are available to senators on request from the chamber attendants, again by presidential permission.

It is not in order for senators to hold up newspapers or placards in the chamber, or to wear T-shirts or other clothing bearing slogans. Senators may not have on their desks items which are offensive to other senators.

A senator speaking must resume his or her seat when directed to do so by the Chair. This may be because the senator's time has expired or because the chair needs to deal with a point of order, or with disorder in the chamber (standing order 197(4)).

Debate is required to be relevant to the motion, albeit presidential rulings have always taken a wide view of relevance (standing order 194(1)). Exceptions are debate on a motion for an address-in-reply, for the first reading of a bill which the Senate may not amend, and for the adjournment of the Senate (standing orders 194(2)112(2) and 53(4)). Debate on these motions may refer to any matters.

7. Courtesies of debate

By its nature, debate governed by known procedural rules is inherently orderly and facilitates rational discussion of matters of all kinds, including matters on which opinions may be deeply and passionately divided. A hallmark of parliamentary debate is the application of certain protections to avoid inflammatory and argumentative discourse and to observe courtesies that are fundamental to respect for the institutions of government in its different manifestations.

Standing order 193 therefore prohibits:

  • disrespectful references to the Queen, the Governor-General or a State Governor, or references designed to influence the Senate in its deliberations;
  • reflections on votes of the Senate;
  • offensive words, imputations of improper motives or personal reflections against other Houses of Parliaments or their members, or judicial officers.

These rules underpin the maintenance of comity between the different arms and levels of government and apply to groups as much as to individuals. They do not apply to former members or former judicial officers.

It is for the Chair to determine what constitutes offensive words, imputations of improper motives or personal reflections, taking into account the connotations and context of the words used. When a senator is asked by the Chair to withdraw unparliamentary remarks, he or she must do so without qualification. It is not in order to quote unparliamentary language from a document.

The Senate was the first parliamentary body to provide persons aggrieved by references to them in proceedings with a right of reply. "Ordinary" people therefore have access to a remedy which provides for their response to be published in the same written medium as the offending remarks. The remedy has been granted by the Senate on more than 60 occasions, with a minimal rate of refusal.

In addition to these specific rules, various conventions have been traditionally observed but not recorded in standing orders, probably because they were regarded as so fundamental to civilised debate that they were taken as given. They include:

  • senators remaining in the chamber to listen to responses to their own speeches and to other contributors to the debate;
  • senators informing the senator concerned if they intend to make an adverse reference to them in debate.

8. Interruption of speaker

Once a senator has been given the call, he or she may be interrupted only by another senator taking a point of order (or privilege), or drawing attention to the lack of a quorum (standing order 197(1)). In these cases, the Chair must attend to the point of order immediately or have the bells rung to form a quorum (standing orders 197(3) and 52(3)). The time taken to deal with a point of order or form a quorum does not come out of the speaking time of the interrupted senator or (unless the Senate is operating under a limitation of debate under standing order 142 with a fixed concluding time) out of the total time available for the debate (standing orders 197(6) and 52(7)).

The rules protecting senators against interruption except in specified circumstances are also the basis for the protection against interjections. While Chairs exercise discretion and may allow interjections which enhance the debate, the Chair must protect senators against interjections if they so request. A senator with the call has the right to be heard. Hansard does not record interjections unless they are replied to or acknowledged by the senator speaking.

When debate is interrupted by the operation of a standing or other order (for example, at 2 pm for questions without notice, or 6.50 pm on Tuesdays and Wednesdays for consideration of government documents), the business before the Chair automatically becomes an order of the day for a later hour or the next day of sitting and, where debate continues, the senator speaking is taken to have leave to continue when the debate resumes (standing order 68(2)). Where there is no right of continuation for an individual speaker (for example, on a motion to take note of a document or report), the matter is automatically adjourned without a question being put (standing orders 61(3)(c) and 62(4)(c)).

9. Personal explanations

By leave, a senator may explain matters of a personal nature when there is no question before the chair. Such matters may not be debated (standing order 190).

10.  Tabling or incorporation of documents

Hansard is a record of debate. Ultimately it belongs to the Senate and the Senate therefore determines its contents. Thus, if a senator wishes to incorporate material in Hansard that has not been delivered orally in the chamber, then leave of the Senate is required. The convention is that a senator who wishes to incorporate material shows it to representatives of the various parties or independents to gain informal consent before seeking leave to have the material incorporated. For ministers incorporating further answers to questions without notice, this practice is not observed because the minister is responding to an expectation that additional or corrective material will be supplied as soon as possible.

While a minister has a right to table documents in pursuance of an obligation to be accountable for the conduct of public affairs (standing order 166(1)), other senators require leave of the Senate to table documents. The same conventions apply with respect to informal consultations before leave is sought.

11.  Leave

Leave is the unanimous consent of senators present. Leave allows a motion otherwise requiring notice to be moved without notice (standing order 88(1)). Leave of the Senate is granted when no senator present objects to the moving of the motion or other course of action for which leave is sought (standing order 88(2)). While it is a common belief that "anything can be done by leave", there are, in practice, some limitations on the ability of leave to overcome restrictions in the standing orders. For example, a question before the chair must be disposed of before an unrelated motion may be moved. In committee of the whole, leave cannot sanction the transaction of business that has nothing to do with the matter before the committee (such as the incorporation of a speech on an unrelated matter).

12.  Broadcasting and photography

The Senate has authorised the broadcasting of its proceedings (including the broadcasting and rebroadcasting of excerpts) subject to certain conditions. Radio broadcasting by the ABC alternates between the Houses but the proceedings of both are available through the House Monitoring Service and via webcasting.

Photography in the chamber is subject to relevant resolutions of the Senate and the Presiding Officers' guidelines on filming and photography in Parliament House. Neither senators nor advisers may take photographs on mobile phones or other electronic devices. A resolution of the Senate allows the media to photograph any senator in the chamber provided that they have the call.

13.  Electronic devices

 

Electronic devices are permitted in the chamber subject to rules issued by the President. The guiding principle is that the device must not disturb proceedings. Thus laptop or tablet computers, mobile phones and similar devices may be used in silent mode.

14.  Advisers

 

It is up to senators who they admit into the relevant areas of the chamber reserved for advisers, but advisers are required to behave with decorum and not disturb proceedings.

15.  Dress

 

There are no formal dress rules in the standing orders and the matter of dress is left to the judgment of senators, subject to any ruling by the President. Advisers are also expected to maintain appropriate standards of dress, but a resolution of the Senate indicates that advisers and media representatives are no longer required to wear coats.

16.  Need assistance?

For further assistance on any of the matters covered by this Brief Guide, contact the Clerk of the Senate on extension 3350 or clerk.sen@aph.gov.au.

June 2013

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