Chapter 12 - Legislation

Reference to standing or select committee

An amendment to the motion for the second reading may also be used to refer a bill to a standing or select committee for inquiry and report. The amendment, if carried, usually has the effect of referring a bill to a committee before the Senate has agreed to the second reading of the bill. Such an amendment takes the form of leaving out all words after “that” and inserting words such as “this bill be referred to the standing committee on ... for inquiry into ... and report on ...”. This is an indication that the Senate wishes the committee to consider the principle of the bill as well as its details and any amendments. When the committee reports on the bill and consideration of it is resumed, the second reading must be moved again.

A second reading amendment may, however, be framed so as to add words to the motion to give the bill a second reading and then refer it to a committee (23/8/1995, J.3667-8, 3670).

In earlier times it was thought to be anomalous that a bill should be referred to a committee before the second reading, on the ground that consideration in committee should not occur until a bill is agreed to in principle. An amendment for this purpose, however, was moved in 1959 (25/11/1959, J.225), and similar amendments have been moved frequently since that time. It was also thought that a bill could not be referred to a standing committee, as distinct from a select committee, by this method (30/9/1971, J.709), but as a bill can be referred by motion on notice to a standing committee before the second reading (28/9/1978, J.387), this superfluous distinction was also not subsequently followed. Reference of a bill to a committee may occur before the second reading is moved (17/10/1988, J.1019-21; reference of provisions before second reading: 30/10/1989, J.2177-8). Indeed, the Senate may make orders for the prospective referral of bills to committees before their introduction (eg, 4, 6/5/1992, J.2239, 2281), and for the referral of the provisions of a bill before its introduction into either House (eg, 26/3/1997, J.1799-1800; 11/5/2000, J.2702; 29/6/2000, J.2978; 25/6/2003, J.1978 (See Supplement)).

A reference to the Community Affairs Committee in 2006 required it to consider “legislative responses” to a report on laws governing cloning and stem cell research. A draft bill tabled in the Senate and a bill presented to the President, prepared by two senators, were considered by the committee under this reference. (14/9/2006, J.2706.)

In 2007 legislation was abandoned by the government following a reference of part of the legislation to a committee and a recommendation by the committee that the legislation not proceed until the missing part of it was introduced (report by the Finance and Public Administration Committee on proposed access card, March 2007, PP 106/2007).

Bills reported on by Senate committees before the bills are received by the Senate are often amended by the government in the House of Representatives in response to the committees’ reports.

For the reference of exposure drafts of government bills (wheat marketing bills) to a committee, see 12/3/2008, J.209. (see Supplement)

A second reading amendment may be used to refer to a committee matters related to a bill, while allowing the bill to proceed (21/12/1988, J.1359).

In 1995 the government introduced two bills by leave without the normal notice and then moved by leave to have the bills immediately referred to a committee (31/1/1995, J.2799-2800).

After a bill has been read a second time, a motion may be moved without notice to refer the bill to a standing or select committee (SO 115(2)).

This is the major opportunity for the Senate to refer legislation for intensive examination to a committee. That the motion may be moved without notice is an indication that scrutiny by a committee is regarded as a normal part of the process of passing legislation.

Reference of a bill to a committee after the second reading means that the Senate has agreed to a bill in principle, and is an indication that the committee is expected to examine the details of the bill. In the absence of any specific instructions from the Senate as to how the committee is to examine the bill, however, a committee is free to deal with a bill in any way it considers appropriate. It may, for example, consider the principle of the bill in relation to alternative methods of achieving the same purpose, and hear evidence in relation to the policy of the bill.

A motion or amendment, other than a second reading amendment, to refer a bill to a committee is subject to a speaking time limit of 5 minutes per speaker and a total time limit of 30 minutes (SO 115(6)). These limitations are interpreted as applying only to a simple referral of a bill to a committee, and not to a motion or amendment which refers provisions or parts of bills, or amendments to bills, or which contain any terms of reference. This is in accordance with the intention of the limitations, which was to ensure that motions to refer only bills to committees do not have any debating time advantage over motions to adopt reports of the Selection of Bills Committee.

The Senate may give specific instructions to a committee to which a bill is referred. These instructions may be incorporated into the motion referring the bill to the committee, which may, for example, direct the committee as to the particular aspects of the bill it is to examine and the particular sources of information it is to employ. Matters other than those provided for by the bill may also be referred to the committee (ruling of Deputy President Nicholls, upheld by the Senate, 21/6/1950, J.92-3; see also 19/3/1987, J.1704-5; 9/12/1987, J.390; 10/12/1992, J.3289).

The Senate may refer the clauses or provisions of a bill to a committee rather than the bill itself (8/4/1974, J.92; 30/10/1974, J.307; 31/3/1977, J.69; 25/6/1992, J.2639-40). This is usually done so that a bill may be proceeded with by the Senate while a committee considers particular provisions, or so that a committee can consider provisions of a bill yet to be received by the Senate (see below for the circumstances in which referral of provisions of a bill is taken to be the equivalent of referral of the bill).

The Senate may also refer different parts of bills to different committees (28/9/1978, J.387-88; ruling of President Sibraa, 11/10/1990, J.322-3; 26/11/1990, J.476). Different aspects of the same bills may be referred to different committees, including a combination of select and standing committees (New Tax System bills, 24, 25/11/1998, J.143-50, 166). For a reference of proposed amendments to a bill to a select committee, see 25/11/2003, J.2708-9. For a reference to a Senate committee of proposed government amendments to be moved in the House of Representatives to bills not before the Senate, see 26/6/2002, J.488. For the establishment of a select committee to consider a bill when amendments were the subject of disagreement between the Houses and under consideration in committee of the whole, see 28/11/1994, J.2542-44.

Clauses of bills may be omitted in committee of the whole with a view to referring them to a committee subsequently (28/5/1986, J.1019; 7/10/1987, J.146; 8/12/1987, J.372; 9/12/1987, J.376‑7; 25/6/1992, J.2640).

Having referred a bill to a committee, the Senate can withdraw the referral (23/3/1999, J.595).

It is normal for a motion referring a bill to a committee to specify a day by which the committee is to report, so that the Senate maintains control of the progress of the bill and knows when it may return to the bill.

When a bill is returned from a standing committee it may be proceeded with at once if a reporting date has been fixed for the committee, but if there is no fixed reporting day the sitting day after the report is presented is the first day for proceeding with the bill (SO 115(3)). This provision ensures that senators know when the bill is likely to be considered again.

When a bill is referred to a committee at any stage, standing order 115(3) operates and the bill may not be further considered until the committee has reported. When the provisions of a bill are referred to a committee before the bill is received by the Senate and the bill is received subsequent to the referral, the further consideration of the bill after its introduction is an order of the day for future consideration in accordance with standing order 115(3), unless the Senate explicitly otherwise provides. The rationale of this is that in this circumstance the Senate refers the provisions of a bill to a committee as an alternative to referring the bill when it is received so that the committee can commence its inquiry before the bill is received. When provisions of a bill or particular parts of a bill are referred to a committee after the bill has been received by the Senate, standing order 115(3) does not operate and the bill may be proceeded with by the Senate before the committee reports, unless the Senate explicitly otherwise provides. The rationale of this is that referral of provisions of a bill occurs after the bill is received only with the intention that a committee may inquire into the operation of the bill without delaying proceedings on the bill in the Senate, and the referral of part of a bill to a committee does not prevent the Senate proceeding with other parts of the bill (in that circumstance, it is for the Senate to determine whether it will omit from the bill the parts referred to a committee).

Appropriation bills, however, provide a special case: the referral to legislation committees of estimates under standing order 26 does not prevent the Senate proceeding with bills containing those estimates, although it does not usually do so. (See Chapter 13, Financial Legislation, under Scrutiny of expenditure proposals: Estimates/Legislation Committees.)

The practice is to allow a bill subject to standing order 115(3) to be taken to the stage of the second reading being moved, on the basis that this is normally the first substantive stage of the bill, although on a strict interpretation of the procedure further consideration of the message after receipt should probably be automatically deferred. After the second reading is moved, consideration of the bill is automatically deferred until the committee reports, and the bill is so listed on the Notice Paper.

When a bill is referred to a committee with a fixed reporting date, and the committee reports early, the bill cannot be proceeded with until the due date, except by leave or a suspension of the standing order (New Business Tax System (Consolidation and other Measures) Bill (No. 1) 2002, 18/11/2002, J.1131; Telstra (Transition to Full Private Ownership) Bill 2003, 27/10/2003, J.2622).(See Supplement)

If a committee to which a bill has been referred, or to which the provisions of a bill have been referred before the receipt of the bill by the Senate, presents an interim report on the bill, and the final report is not presented before the due reporting date, the bill remains listed on the Notice Paper as a reference to the committee, and, if the bill is before the Senate, as a bill for consideration at a future time (namely, when the committee presents its final report), until the Senate determines a motion to grant the committee an extension of time to report. The rationale of this is that there is a presumption in favour of the committee that the bill will not be proceeded with until the final report is presented, unless the Senate, by rejecting a motion for an extension of time to report, makes a deliberate decision to allow the bill to proceed without waiting for the final report.

The consideration of bills by standing or select committees allows more effective scrutiny of legislative proposals than is possible in the whole Senate. Committees may directly question ministers and officials responsible for framing bills, and hear evidence from organisations and persons who have an interest in legislation or who are likely to be affected by it. Apart from providing committees and the Senate with better means of understanding and evaluating proposed legislation, this opens the legislative process to public participation and allows the views of the public to be heard directly in the parliamentary forum.

Exposing bills to this heightened scrutiny makes for better legislation. Amendments to make improvements to bills are more likely to emerge from the process. If the framers of legislation know that it is to be subjected to this kind of scrutiny, and to the critical examination of those likely to be affected by it, they are likely to give more care and attention to their proposals, in anticipation of explaining them to Senate committees.

Committees are also able to combine greater scrutiny of bills with a more economical use of parliamentary time, because several committees may consider a number of bills simultaneously.

It is not the practice of the Senate to delegate to committees the power to amend bills, but they may recommend amendments, which may then be considered by the Senate. That consideration is apt to be expedited by the work of committees.

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