Chapter 8 - Conduct of proceedings

Suspension of standing orders

Another method of transacting business which would not otherwise be in accordance with standing orders is for the Senate to suspend its standing orders to allow a particular course of action to be undertaken.

In cases of urgent necessity standing orders may be suspended on motion without notice if the motion is carried by an absolute majority of the whole number of senators (SO 209). The proviso relating to urgent necessity is a matter for the Senate to judge. If a senator moves the suspension of standing orders, the Senate determines whether the matter for which the suspension is sought is a matter of urgent necessity by its determination of the motion (ruling of President Gould, SD, 21/7/1909, p. 1378).

If notice of a motion to suspend standing orders is given, however, the motion may be carried by a simple majority, that is, a majority of the senators present and voting. Such a notice of motion has no special precedence over other business, so that if a senator who is not a minister gives such a notice it is placed on the Notice Paper as general business and in all likelihood will not be reached in the normal course of business.

In order to move for the suspension of standing orders and to avoid the requirement for an absolute majority, which is difficult to achieve, senators have devised a number of contingent notices of motion. These notices indicate that, contingent on a particular stage being reached in the Senate’s business, the senators will move the suspension of standing orders in order to allow a particular course of action.

This device of moving for the suspension of standing orders under a contingent notice is particularly used for the rearrangement of business. As has been explained above, a minister may move a motion relating to the rearrangement of business before the Senate at any time without notice under standing order 56, but a senator who is not a minister may move only to postpone items of business of which the senator has charge. There is no right of a senator who is not a minister to move for the rearrangement of business. Thus party leaders and independent senators usually place on the Notice Paper contingent notices that they will move to suspend standing orders to allow them to move a subsequent motion to rearrange business before the Senate. A notice of motion which allows this to be done at the time for the postponement for business is in the following terms:

LEADER OF THE OPPOSITION IN THE SENATE: To move (contingent on the President proceeding to the placing of business on any day)—That so much of the standing orders be suspended as would prevent the Leader of the Opposition in the Senate moving a motion relating to the order of business on the Notice Paper.

Pursuant to this notice, at the time for the postponement of business a senator may move that so much of the standing orders be suspended as would prevent the senator moving a motion relating to the order of business on the Notice Paper. This motion requires only a simple majority to be carried, and if it is agreed to the senator may then move a motion to rearrange the business of the Senate, for example, to give precedence over all other business to some item of business standing on the Notice Paper in the senator’s name.

Senators have also devised contingent notices to allow them to bring on for consideration some completely new item of business which is not on the Senate Notice Paper, for example, some completely new motion. This contingent notice is in the following terms:

LEADER OF THE OPPOSITION IN THE SENATE: To move (contingent on the Senate on any day concluding its consideration of any item of business and prior to the Senate proceeding to the consideration of another item of business)—That so much of the standing orders be suspended as would prevent the Leader of the Opposition in the Senate moving a motion relating to the conduct of the business of the Senate or to provide for the consideration of any other matter.

It will be seen that the suspension of standing orders sought by a motion moved pursuant to this notice would allow a senator to move any motion which a minister may move under standing order 56 or a motion to give precedence to some completely new item of business. Because standing order 56 is not interpreted as allowing a minister to move for the consideration of a completely new item of business, a contingent notice in the following terms is employed by ministers:

LEADER OF THE GOVERNMENT IN THE SENATE: To move (contingent on the Senate on any day concluding its consideration of any items of business and prior to the Senate proceeding to the consideration of another item of business)—That so much of the standing orders be suspended as would prevent a Minister moving a motion to provide for the consideration of any matter.

These contingent notices have virtually overcome the safeguard contained in standing order 209, that a motion for the suspension of standing orders moved without notice requires an absolute majority. It may seem at first sight, therefore, that that safeguard could be removed. If the safeguard were removed, it might also appear that, to avoid complexity in the proceedings, senators should be allowed to rearrange the business without a suspension of standing orders. The requirements to give a contingent notice and to suspend the standing orders before a motion to rearrange the business can be moved, however, still provide some safeguard. The Senate must make a deliberate decision to depart from the standing orders in order to allow some course of action to be undertaken, and the Senate has an opportunity to determine whether standing orders should be suspended, that is, whether the matter proposed to be raised is of urgent necessity, before making a decision on the merits of that matter. It is therefore considered that the limitations contained in standing order 209 should be maintained. (See Supplement)

It has been ruled that a contingent notice of motion of this type may be used only once by any senator at each occurrence of the contingency to which it refers. The rationale of this ruling is that once the Senate has been asked to suspend the standing orders to depart from the order of business on one such occasion and has declined to do so, the request should not be capable of being repeatedly made, because this would provide a means of permanently obstructing the business of the Senate. (The rulings, and expositions of them, occurred on 3/12/1991, J.1826; 5/12/1991, J.1870-1; 16/11/1992, J.3063-4; 30/11/1992, J.3157; the Procedure Committee recommended that the Senate uphold the rulings: 1st Report of 1993, PP 158/1993, 29 September 1993. See also ruling of President Sibraa, 20/12/1993, J.1106; ruling by President Calvert, 14/9/2005, J.1108-9; 15/9/2005, J.1141-2; Procedure Committee, 2nd Report of 2005, PP 280/2005, endorsed by the Senate 9/11/2005, J.1380-1. As a result of the last decision of the Senate, the Chair is able to exercise a discretion in applying the ruling to ensure that adequate opportunity is given to senators to state a case for a suspension of standing orders.) (See Supplement)

These general purpose contingent notices for suspension of standing orders are designed to allow the rearrangement of business to bring on any item of business, which of course is not specified in the contingent notices. The use of such notices therefore involves suspending standing orders first, then moving to rearrange the business, then moving the motion concerned. Contingent notices designed to deal with particular circumstances often have suspension of standing orders built into their terms, so that the intermediate step is not necessary (18/10/1996, J.756).

A motion for suspension of standing orders moved during consideration of a matter must be relevant to that matter (SO 209(3)). This means that contingent notices of motion to suspend standing orders to rearrange the business can be employed only when there is no other business before the chair. (See Supplement)

Suspension of standing orders is limited to the particular purpose for which the suspension has been sought (SO 210). Thus, if a senator is successful in moving a motion to suspend standing orders to allow the moving of a substantive motion, the only standing orders which are suspended are those which would prevent the moving of the motion, and the motion and any debate on it are still subject to all other provisions of the standing orders, such as standing order 193 relating to rules of debate. (See Supplement)

Debate on a motion to suspend standing orders is limited to five minutes for each senator speaking and 30 minutes in total (SO 209(4)). This limitation does not suspend the requirement for relevance to the question of whether standing orders should be suspended (ruling of President Sibraa, 20/12/1993, J.1106). A compound motion incorporating a suspension of standing orders is subject to these time limits only if the suspension is its primary purpose and not merely incidental to the motion.

A motion for suspension of standing orders may be moved in committee of the whole, provided that it is relevant to the matter under consideration in the committee (SO 209(3). Precedents: 23/10/1956, J.185; 4/6/1969, J.521; 9/11/1977, J.396; 16/5/1980, J.1349). It may be regarded as anomalous that a committee of the whole can suspend the standing orders, but standing order 144(7) provides that in committee of the whole the same rules of procedure apply as in the Senate, except where the standing orders explicitly otherwise provide. Moreover, in dealing with a motion to adopt a report of a committee of the whole the Senate has the opportunity to approve of anything the committee has done in considering the matters referred to it (see Chapter 14 on Committee of the Whole Proceedings).

A question arises as to the effect of the procedural motion to allow a substantive motion to be moved, or some item of business to be called on, after standing orders are suspended. This procedural motion takes the form: “That a motion to ...... may be moved immediately (or, that the order of the day relating to ...... be called on immediately) and have precedence over all other business this day till determined”. The question is whether this motion has the effect of suspending the consideration of all other items in the routine of business, such as question time, or whether it merely gives precedence over other business in the strict sense of the word, that is, government and general business. The interpretation which has been followed is that if such a motion is passed before any business is embarked upon, the subsequent substantive motion has precedence over all other business including business which has a fixed place or time in the routine of business. This was the case with the motions agreed to on 9 December 1991 and 5 November 1992 (J.1885, 2965). If, however, the procedural motion is passed at discovery of formal business, at the placing of business or during consideration of government business, the subsequent substantive motion has precedence only over business in the narrow sense, and may be interrupted by other items in the routine of business which have a fixed place or time in the routine, such as question time. This was the case with the motion agreed to on 25 June 1992 (J.2610).

In neither circumstance does continuing debate on the substantive motion interfere with suspensions of the sitting or the putting of the question for the adjournment of the Senate.

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