Chapter 12 - Legislation



Committee of the whole: amendments

When a bill has been read a second time, unless the bill is at that stage referred to a standing or select committee, the Senate proceeds immediately to consider the bill in committee of the whole, regardless of whether the bill is considered under the traditional deliberate procedure or the expeditious procedure.

A bill is not considered in committee of the whole, however, unless a senator circulates amendments to the bill or requires that it be considered in committee (SO 115(1)).

A minister, under standing order 56, may move to defer consideration of a bill in committee of the whole, but other senators may not do so except by a suspension of standing orders (5/11/1987, J.268-9). Any senator may, however, move that the committee of the whole report progress (that is, postpone its consideration of a bill), and then move that the committee have leave to sit again at some future time (see Chapter 14, Committee of the Whole Proceedings; for precedent, 13/6/1984, J.986).

In committee of the whole a bill is considered in detail, and amendments may be moved to any part of the text of the bill. The rationale of considering a bill in committee of the whole is that the procedures of a committee are designed to facilitate detailed examination and amendment of bills. (For the nature of proceedings in committee of the whole generally, see Chapter 14, Committee of the Whole Proceedings; for precedent of a bill amended in the Senate rather than in committee of the whole, 3/4/1974, J.84.)

The standing orders provide that a bill is to be considered clause by clause (SO 117; a clause is a numbered paragraph of a bill which becomes a section of the resulting statute when the bill is passed). In relation to each clause the Chair of Committees puts the question that the clause stand as printed. With that question before the committee, senators may move any amendment to the text of the clause, and if amendments are agreed to the question is then put that the clause as amended be agreed to. The committee may negative the question that the clause stand as printed, and the clause is then left out of the bill as an amendment. This means that each clause of a bill must be supported by a majority of the Senate to be passed, because the question on a clause is negatived if the ayes and noes are equal (see Chapter 11, Voting and Divisions). Where bills contain long clauses or schedules consisting of numerous provisions or items, it is the practice to put those provisions or items separately as if they were separate clauses, so that senators who wish to omit any of them may vote against them. For any other kind of amendment to be agreed to, however, there must be a majority in favour of the amendment. When a clause is amended, a question is put that the clause as amended be agreed to, and there is then a further opportunity to reject the clause (SO 118(3)).

Amendments may also insert new clauses into a bill.

When an amendment has been moved, a senator may move an amendment to the amendment, as with amendments to motions (see Chapter 9, Motions and Amendments, under Amendments).

A complicated amendment may be divided, as with a complicated question (see Chapter 10, Debate, under Dividing the question; the provision in SO 84(3) applies by virtue of SO 144(7); see 27/10/1931, J.408).

The preamble and title of a bill are considered after the clauses and any schedules. The reason for this is that amendments made to the clauses of a bill may require consequential amendments to the preamble or title (SO 117(1)). An amendment of the title, however, need not necessarily arise from another amendment (8/3/1967, J.35; 24/8/1984, J.1049-50). An amendment of the title is specially reported (SO 118(4)).

The enacting words of a bill are not put to the committee (SO 116), but there are precedents for amendment of enacting words on an instruction (19/6/1901, J.37; 20/6/1901, J.42; 30/1/1902, J.268).

In the course of consideration of a bill, any clause may be postponed whether or not it has been amended (SO 117(5)). A motion to postpone a clause may be debated. Clauses may be postponed for a particular purpose or until a particular occurrence, for example, until a minister provides information or documents (28/5/1992, J.2349-50).

In practice this prescribed order for considering a bill is often varied by leave, that is, by unanimous consent of senators present. Often a bill is taken as a whole, which means that the whole of the bill is considered and amendments may be moved to any part of it. This is usually done with short bills. The clauses of a bill are usually considered in groups of related clauses, and amendments are moved to the related clauses. This is often done with long or complex bills.

It is also established practice to allow senators to move amendments together in groups, particularly where there are closely related amendments.

When a bill is taken as a whole by leave, however, opposition to a clause or item is not put in the form of an amendment. This would raise the possibility of a clause or item being carried without a majority, because if that question is negatived with the votes equally divided, the amendment is negatived and the clause or item remains notwithstanding that it does not have majority support. The question is therefore put separately on any clause or item which is opposed, this procedure being a form of division of the question (14/11/1991, J.1709 and 1719; 18/12/1991, J.1960; 3/12/1992, J.3211, 3219). This procedure ensures that where a senator opposes a clause or item the question on the clause or item is put in the proper form and the risk of a clause or item being carried without a majority is avoided.

In proceedings on complex bills all amendments may be debated in turn and then put separately and in order at the end of that debate in accordance with an agreed schedule. This procedure is particularly useful in dealing with amendments which are circulated in the course of the debate (Social Security (Budget and Other Measures) Bill 1996 and associated bill, 13/12/1996, J.1317-31).

An amendment must be relevant to the subject matter of the bill (SO 118(1)). As with relevance in debate (see Chapter 10, Debate, under Relevance) and in relation to amendments to the motion for the second reading (see under Second reading, above), the requirement of relevance is interpreted liberally, so that senators have maximum freedom to move amendments. In determining relevance, the question is: “What is the subject matter of the bill, and does this amendment deal with that subject matter?”. The long title of a bill can be taken as an indication of its subject matter, but does not conclusively determine the question. Thus, if a bill has the long title “A Bill for the Act to amend the Social Security Act 1991”, any amendment relating to social security or to any matter dealt with by the Social Security Act is probably a relevant amendment. If, however, a bill has the long title “A Bill for an Act to amend the Social Security Act 1991 in relation to age pensions”, this is an indication that the subject matter of the bill is age pensions and amendments to deal with other matters covered by the Social Security Act would probably not be relevant to the bill. It must be emphasised, however, that the long title is indicative but not determinative of a bill’s subject matter. There is no requirement, as there is in some Houses which follow British precedents, for amendments to be consistent with the scope and principle of the bill. (Rulings of President Baker, SD, 14/7/1904, p. 3243; 27/10/1905, pp 4202-4; 14/11/1905, p. 5004.)

The ability of the Senate to amend the title of a bill does not affect the rule of relevance. An irrelevant amendment cannot be made relevant by amending the title.

Amendments not relevant to a bill may be made if the Senate has so authorised by a suspension of standing orders (5/5/1986, J.967-8; 4/12/1986, J.1558‑9).

The only other substantive restriction on amendments moved in committee of the whole is that an amendment cannot be moved if it is the same as one already negatived or is inconsistent with one that has been agreed to by the committee, unless the bill has been recommitted, that is, referred again to the committee by the Senate for further consideration (SO 118(2); 23/2/1944, J.44-5; for a suspension of this rule, see 23/6/1999, J.1228). An amendment moved in a different context, for example, as part of a different “package” of proposals, is not the same amendment even if identical in terms to one already moved (SD, 8/11/2000, pp 19358-9).

Rulings have been made to the effect that amendments are not in order if they are unintelligible, internally inconsistent, inconsistent with the bill, or a direct negation of the object and subject matter of the bill (rulings of President Baker, SD, 27/9/1906, p. 5591, of President Givens, 10/10/1918, p. 6776). There has been no occasion for these rules to be invoked in recent times (for amendments which significantly altered the effect of a bill: 4/6/1992, J.2432-3).

When a bill contains the text of an agreement which has been concluded, for example, an agreement between Commonwealth and state governments, it is clearly not possible for the Senate to amend the terms of the agreement, but the bill may be amended to bring about that purpose. If the bill contains a provision to approve the agreement, that provision may be amended so as to approve the agreement subject to specified amendments (30/11/1932, J.188; 16/8/1972, J.1061; 10/12/1976, J.545-6).

For the difficulty presented by national uniform legislation, see Chapter 15, Delegated legislation, under that heading.

It is usually during the committee of the whole stage of a bill that notice is taken of any comments on the bill by the Standing Committee for the Scrutiny of Bills, and amendments may be moved as a result of the committee’s comments (see Chapter 16, Committees, under Scrutiny of Bills Committee).

When a bill is before a committee of the whole, or a standing or select committee, no reference may be made in the Senate to the committee’s proceedings until the committee has reported to the Senate (SO 119). This rule ensures that a committee is allowed to complete its work before the bill is again discussed in the Senate.

A committee of the whole on a bill may report progress (see Chapter 14, Committees of the Whole, under Reporting progress). Progress may be reported for a particular purpose, for example, until a minister answers questions or provides information (20/5/1975, J.655-7).

When the committee of the whole has completed its consideration of a bill, the Chair of Committees puts the question that this bill (or this bill as amended) be reported, and if that question is agreed to the President resumes the chair and the bill is reported to the Senate (SO 120(1)).

On the motion for the bill to be reported an amendment may be moved to require the reconsideration of any clauses (SO 120(2); 18/6/1991, J.1216). This provides an opportunity for the committee, before the bill is reported to the whole Senate, to reconsider any parts of the bill. Clauses may also be reconsidered by leave (14/12/1989, J.2385; 22/3/1995, J.3114).

It is possible for the committee of the whole to negative the question that the bill as amended be reported. This would have the effect that the committee has declined to report the bill, and should logically occur only if the committee wishes to consider the bill further.

Where a bill is taken as a whole, questions are put that the bill stand as printed or that the bill as amended be agreed to. These questions may also be negatived, but this means that the committee has, in effect, rejected the whole bill. It is not logical that this should occur, because the opportunity to reject a bill completely is at the second reading, and if the committee of the whole has agreed to amendments it should not be rejecting the bill as amended. There have been occasions, however, of a bill being negatived in committee of the whole (11/11/1981, J.643; 4/5/1992, J.2249; 15/12/1992, J.3370; 11/7/1998, J.4343). If this occurs, the committee reports to the Senate that the bill has been negatived in committee and the Senate may adopt the committee’s report, thereby agreeing with the action taken by the committee, or may recommit the bill to the committee (see under Recommittal, below). Rejection by the Senate of the question that the report of the committee be adopted would have the effect of recommitting the bill (statement by President Reid, SD, 11/7/1998, pp 5708-9).

A committee of the whole to which several bills have been referred may report separately on some of those bills, leaving the remainder for future treatment (30/6/1995, J.3629-30; 25/9/2002, J.821). When bills have been reported separately in this way, some may be proceeded with and others deferred (29/8/2001, J.4808-10). In effect, the committee decides to separate the bills, and the Senate may approve of that action by its treatment of the committee’s report and its subsequent action in relation to the bills.

When a bill is reported by a committee of the whole, if it is proceeding under the deliberate traditional method the Senate must fix a future day for the adoption of the committee’s report, but under the expeditious method, or if the bill has not been amended in committee, the motion for the adoption of the committee’s report may be moved at once (SO 120(2)).

The motion for the adoption of the committee’s report may be debated, but it is not in order to revive the discussion which took place in the committee (ruling of President Givens, SD, 18/3/1920, p. 506).

The motion may also be relevantly amended. An amendment may express the Senate’s opinion concerning a matter associated with the bill (ruling of President Givens, SD, 25/11/1920, pp 7014-5; 9/12/1971, J.850-1; 14/12/1982, J.1315; 2/12/1983, J.540-1; 16/10/1984, J.1228; 24/3/1994, J.1524-6); declare the Senate’s intention in making requests (24/3/1994, J.1504); seek to defer the bill (25/2/1977, J.595); refer it to a standing or select committee (11/4/1986, J.884; 24/3/1994, J.1504; 13/12/1996, J.1337); refer to a committee matters raised by amendments (17/11/1993, J.800; 22/11/1993, J.843); make a standing order for documents (24/3/1994, J.1517); make an order for a report by a statutory authority (25/3/1999, J.626); provide for the urgent despatch of a message (31/5/1985, J.381).

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