Chapter 21 - Committees of the Whole

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144  Proceedings in committee

  1. A committee shall consider only the matters referred to it by the Senate.

  2. A question in committee shall be decided in the same manner as in the Senate.

  3. A motion contradictory of a previous decision of a committee shall not be entertained in the same committee.

  4. A motion for the previous question may not be made in committee.

  5. In committee senators may speak more than once to the same question, and, when a question has been proposed from the chair, shall confine themselves to that question.

  6. Motions that the question be now put and that the chairman report progress and ask leave to sit again shall be moved without discussion and immediately put and determined, but neither of those motions shall be repeated within 15 minutes after either of them has been moved.

  7. Except as otherwise provided by the standing orders, the same rules of the conduct of senators and of debate, procedure, and the conduct of business shall be observed in committee as in the Senate, the Chairman of Committees being invested with the same authority as the President for the preservation of order, but disorder in a committee may be censured only by the Senate, on receiving a report.

Amendment history

Adopted: 19 August 1903 as SOs 255, 256, 257 (corresponding to paragraphs (1), (2) and (3)) and 259, 260, 273 and 261 (corresponding to paragraphs (4), (5) (6) and (7) respectively) but renumbered as SOs 251 to 253, 255, 256, 269 and 257 for the first printed edition

Amended:

  • 1 August 1934, J. 460 (to take effect 1 October 1934) (change in form of question for the closure in paragraph (6))
  • 2 December 1965, J. 427 (to take effect 1 January 1966) (increase in special majority formerly required to support the closure)

1989 revision: Old SOs 263 to 265, 267, 268, 281 and 269 combined into one, structured as seven paragraphs and renumbered as SO 144; requirement for special majority to carry a closure motion removed; minor streamlining of expression

Commentary

Of all the rules listed in SO 144 for the conduct of proceedings in committee of the whole, only paragraph (6) has received significant attention. In 1903, one of the longest debates on any of the standing orders occurred in relation to paragraph (6) and the use of a special majority to carry a closure motion as a way of balancing the rights of the majority against the rights of the minority. The debate spread over three days and ranged far and wide.[1] The formula that was finally chosen was 13 affirmative votes, or a quorum plus one. Special majorities (not including absolute majorities) were also employed for the closure of debate generally, instructions to committees (in 1905) and, in 1926, for the guillotine (see SOs 199, 150 and 142, respectively). These special majorities were all removed in the 1989 revision on the grounds that they had not kept up with increases in the size of the Senate.[2] Moreover, since 1949, proportional representation had made the achievement of more than simple majorities virtually impossible.[3] In any case, special majorities and their validity under s.23 of the Constitution had attracted controversy from time to time and they had been considered ultra vires by several authorities.

In mid–1903, probably when the debates on the standing orders were in full swing, Blackmore dashed off requests for advice on the validity of special majorities to several eminent British authorities. James Bryce, author of The American Commonwealth (1888), A.V. Dicey, author of An Introduction to the Study of the Law of the Constitution (1885) and Sir Courtenay Ilbert, Clerk of the House of Commons, all concurred that an order of the Senate providing for a decision to be made by more than a mere majority would be ultra vires in relation to s.23. The replies, all dated late July or early August 1903, would have been received too late to influence the outcome and they appear to have been unknown to later Clerks such as Edwards and Odgers who do not mention them.[4] Although the constitutional issue was raised in the 1903 debates,[5] the use of special majorities was rationalised on the basis that the questions involved were procedural rather than substantive and that s.23 was surely meant to cover votes on questions of principle, not of mere procedure. That, at least, was the view of Senator Pearce (ALP, WA), a self-styled “unsophisticated layman” whose constitutional analysis, supported by a ruling of the Chairman of Committees, Senator Best, nonetheless secured just enough votes to carry his amendment.[6] See Odgers’ Australian Senate Practice, 12th edition, pp.219–20, and Australian Senate Practice, 6th edition, pp.393–99, for further analysis, including an account of the 1968–69 controversy where a majority of the Senate twice overturned rulings of the President about the need for an absolute majority of the Senate to carry a motion for the suspension of standing orders.

Two special majorities remain in the standing orders in the form of absolute majorities required for a rescission motion (see SO 87) and the suspension of standing orders without notice (see SO 209).

The question of special majorities was the subject of correspondence between Blackmore and notable constitutional authorities (here, Sir William Anson). Their replies were received too late to influence the debate on the standing orders in 1903

The question of special majorities was the subject of correspondence between Blackmore and notable constitutional authorities (here, Sir William Anson). Their replies were received too late to influence the debate on the standing orders in 1903

Originally, the form of the question for the closure under this standing order was “That the committee do now divide”. In 1934, it was changed to “That the question be now put”. According to Edwards in the 1938 MS, the reason for the alteration was the realisation that a decision to apply the closure might be carried on the voices, without the need for a division, and that the form of the question was, in a very literal sense, therefore inappropriate (see SO 199 for examples).

In the first draft of the 1989 revision it was suggested that the prohibition on moving a motion for the closure or to report progress within 15 minutes of a previous attempt be removed. The same restriction was not imposed in the Senate itself and, since 15 minutes was the speaking time limit in committee, the provision did not provide any effective protection of the minority.[7] The suggestion was not adopted by senators who requested its restoration.[8] A proviso which had excepted the senator in charge of a bill or resolution, or a minister, from this restriction was not restored, presumably because there was no justification for some senators having greater rights than others in these circumstances.

The remaining rules in this standing order reinforce the status of committee of the whole as a body that is subordinate to the Senate but which also operates in a very similar manner (paragraphs (1), (2) and (7)). At the same time, there are one or two significant procedural differences and some constraints are necessary to ensure that, as a result of their more flexible proceedings, committees of the whole do not become interminable. The rule against contradictory motions in the same committee has this purpose, as does the requirement for senators to confine themselves to the question (given that they have multiple speaking opportunities – see SO 189). The prohibition on a motion for the previous question (“That the question be not now put” – see SOs 9495) is compensated by the ability to move motions to report progress which may have the same outcome of avoiding a decision (see SO 89) but which are a more effective means both of delaying a decision and ensuring that the Senate may go on with the next business and not be stuck in committee.[9]

The issue of contradictory motions is most likely to arise in relation to bills where there may be several reasons for reversing a decision. Standing order 118(2) provides a solution by allowing a reversal of a previous decision, provided that a recommittal of the bill has intervened. Standing order 120(2) also allows the reconsideration of clauses before a bill is reported. In practice, therefore, paragraph (3) is of limited application. Edwards gives an example from 1944 when the government found the numbers to restore a clause in a bill which had been previously struck out. A point of order was taken that under the relevant standing order a motion contradictory of a previous decision of the committee could not be entertained in the same committee and that the reinsertion of the clause was therefore not in order. The Chairman quoted the predecessor to SO 118(2) and ruled that, as a recommittal had intervened, this was not the same committee and the motion to restore the clause was in order. Objection was taken but the President upheld the ruling.[10]

See SO 189(3) for time limits on speaking in committee of the whole.

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