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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 1 - The Senate and its constitutional role

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Rules and orders

Section 50 of the Constitution authorises the Senate to make rules and orders with respect to the mode in which its powers, privileges, and immunities may be exercised and upheld, and the order and conduct of its business and proceedings. Standing orders and other rules made by the Senate embody procedures designed to ensure that parliamentary business, especially legislation, is conducted in an orderly, open and predictable manner devoid of surprise, haste or sleight of hand.

On 6 June 1901 the Senate adopted temporary standing orders which were, with some exceptions, the standing orders of the House of Assembly of South Australia. The reasons for the adoption of those particular standing orders were that the President of the Senate, a South Australian, was familiar with them; and that, having been used to general satisfaction by the convention which drafted the Constitution, more senators were acquainted with them than any other standing orders. The temporary standing orders remained in force until 1903. On 1 September of that year the permanent standing orders came into force. They were replaced by new standing orders adopted on 21 November 1989.[28]

The standing orders of 1903 were intended, amongst other things, to embody the meaning and spirit of the Constitution concerning procedure and the relationship between the two Houses; to encompass what had been the universal practice in state parliaments, so that the standing orders were, as far as possible, a complete code of practice; to simplify procedure, including by abolition of procedures and practices (based on obsolete conditions) which had no effect or significance; and to provide standing orders identical to those of the House of Representatives, except in those cases where difference could not be avoided.[29] The 1989 standing orders updated and consolidated those of 1903 to accord with current procedures.

Broadly speaking, the standing orders were framed for the purpose of enabling the Senate to be master of its own procedure, but recognising the fundamental parliamentary rule that there should be safeguards against surprise and haste.

In interpreting the standing orders, a cardinal rule is that each standing order must be read in conjunction with the others.[30] The practice of the Senate is that where there may be doubt with respect to the interpretation of a rule or order, the chair leans towards a ruling which preserves or strengthens the powers of the Senate and the rights of senators, rather than towards a view which may weaken or reduce the Senate’s powers or senators’ rights.

Except so far as is expressly provided, the standing orders do not in any way restrict the mode in which the Senate may exercise and uphold its powers, privileges, and immunities.[31] This provision saves for the Senate all powers, privileges, and immunities conferred on it by the Constitution. Where there is a clear direction in the Constitution as to the powers of the Senate, that direction overrides any standing order or practice of the Parliament.[32]

When the standing orders were considered by the Senate, a motion was made to insert the following provision:

In all cases not provided for hereinafter, or by Sessional or other Orders, resort shall be had to the rules, forms and practice of the Commons House of the Imperial Parliament of Great Britain and Ireland in force on 1 January 1901, which shall be followed as far as they can be applied to the proceedings of the Senate.

Although this rule had been included in the temporary standing orders adopted by the Senate in 1901, and a similar standing order was adopted by the House of Representatives, the Senate rejected the proposed new standing order by 18 votes to 5. It was rightly contended that the Senate, working under a new Constitution, ought to have its own practice and procedure.

The Senate’s first President, Senator Richard Baker, explained the Senate’s decision thus: “The avowed intention of the Senate in omitting the Standing Order was that in cases not positively and specifically provided for we should gradually build up ‘rules, forms, and practices’ of our own, suited to our own conditions”.[33]

The Senate’s decision to omit the standing order necessarily meant that succeeding Presidents have found it necessary to give many rulings, not only in connection with interpretation of the standing orders, but in those instances where the standing orders are silent. As it is, the Senate has for its guidance the practice of other houses without the bondage of following procedure which may be unsuited to Australian conditions.

A President’s ruling which has not been dissented from by the Senate is equivalent to a resolution of the Senate.

The Senate may at any time amend its standing orders, and the current standing orders have been amended, or added to, on many occasions since their adoption in 1989.

Any senator may submit to the Senate a substantive motion for the alteration of any standing order, or for the adoption of new standing orders. Such motion requires notice in the ordinary way. The motion being agreed to, the standing orders would be amended accordingly. The more usual practice, however, and one which makes use of the expertise of the Procedure Committee (before 1987 called the Standing Orders Committee), is to submit proposals to amend the standing orders to that committee, with a request to report on the proposals. Other committees often make recommendations for references of matters to the Procedure Committee. Alternatively, the committee may on its own initiative present a report recommending amendments to the standing orders, without a prior reference from the Senate.

A report from the Procedure Committee is usually considered, sometimes in committee of the whole, on a subsequent day. The advantages of consideration in committee of the whole are that each recommendation of the Procedure Committee may be considered seriatim and senators are able to speak to each question more than once until full understanding and agreement are reached. The committee of the whole may make amendments to the recommendations of the Procedure Committee. The resolutions of the committee of the whole are subject to adoption by the Senate. A report from the Procedure Committee may be considered by the Senate, rather than in committee of the whole. Upon the order of the day being read for the consideration of the report, motions may then be moved to adopt recommendations of the committee. The Senate may make modifications to the recommendations of the Procedure Committee.

On the Senate agreeing to amendments to the standing orders, a motion is sometimes moved that the amended standing orders come into force on some future date. The merit of this practice is that senators have an opportunity of considering their effect. In the absence of such a motion, the new standing orders come into force immediately upon their adoption by the Senate.

In 1975 the Senate resolved that certain proposed amendments to the standing orders would operate initially as sessional orders and, unless otherwise ordered, that they would become amendments to the standing orders at the end of six months.

Sessional orders are orders which have effect only for a session of Parliament. Temporary orders are orders which operate for a specified period. They are used when the Senate wishes to try out new procedures on a temporary basis or otherwise wishes to make orders of limited duration.

The standing orders contain provisions allowing the suspension of the standing orders and other rules of the Senate where necessary to achieve particular purposes, subject to certain procedural safeguards. These provisions illustrate the way in which the Senate’s rules seek to allow the majority of the Senate to act expeditiously to achieve its ends while ensuring that the rights of minorities are not put aside, even temporarily, without due deliberation.

28. For a comprehensive account of the evolution of the Senate’s standing orders, see Annotated Standing Orders of the Australian Senate, ed. Rosemary Laing, 2009.
29. Report of Standing Orders Committee, PP L7/1901.
30. Ruling of President Givens, SD, 11/6/1914, p. 2002.
31. SO 208.
32. Ruling of President Givens, SD, 15/7/1921, p. 10148-9.
33. Remarks and suggestions on the standing orders, PP S1/1904, p. 1.