Odgers' Australian Senate Practice Thirteenth Edition

Chapter 10 - Debate

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Rules of debate

In speaking in debate a senator addresses the President, or the Chair of Committees in committee of the whole.[73] Other senators are referred to in the third person and are not addressed directly.[74] The rationale of this long-established parliamentary mode of speaking is that it acknowledges the role of the chair in applying the processes of orderly debate and guards against any tendency to lapse into offensive language.

Certain institutions and categories of office-holders are specially protected by the standing orders against offensive words and personal reflections.[75] This protection is extended to:

  • a vote of the Senate, except where a motion is moved for a vote to be rescinded
  • the monarch, the Governor-General and governors of states
  • both Houses of the Parliament and the houses of the state and territory parliaments
  • senators, members of the House of Representatives and members of state and territory parliaments
  • judicial officers.

The rule that a senator must not reflect on any vote of the Senate except for the purpose of moving its rescission is seldom invoked.[76] Senators are not prevented in practice from saying that a decision of the Senate was wrong. The rule could be invoked against gross abuse of a past decision of the Senate, which would amount to reflections on the Senate itself.[77]

The monarch, the Governor-General and governors of states must not be referred to disrespectfully in debate, or for the purpose of influencing the Senate in its deliberations (SO 193(2)). This rule is founded upon the need for mutual respect between the branches of government and between the Commonwealth and state governments, and on the requirement that the holders of these offices remain above political disputation. This prohibition is more restrictive than the injunction against "offensive words …. imputations of improper motives …. [and] personal reflections" against senators and the members of other Houses contained in paragraph (3) of the standing order. The prohibition on references "for the purpose of influencing the Senate in its deliberations" is clearly designed to prevent statements seeking to enlist the supposed support or opposition of the Governor-General to a cause. It could also cover such things as citing the Governor-General as an example to be avoided.[78]

The rule against offensive words, imputations of improper motives and personal reflections directed to members of either House of the Commonwealth Parliament or to members of state and territory parliaments is designed to ensure comity and mutual respect between houses of parliaments and between the Commonwealth and state and territory parliaments, and to ensure that debate between those who are by virtue of their offices the principal participants in political debate is conducted in the privileged forum of Parliament without personally offensive language.[79]

The protection of judicial office-holders under the standing order is based on the need for comity and mutual respect between the legislature and the judiciary, and the requirement that judicial officers be protected from remarks which might needlessly undermine public respect for the judiciary. The protection, however, does not prevent criticism of the judgments or decisions of courts.[80] It would also not apply to proceedings on a properly framed motion for the removal of a federal judge under section 72 of the Constitution. [81]

(SEE SUPPLEMENT)

In 2002 a senator (who was a parliamentary secretary) was censured by the Senate for recklessly making unsubstantiated allegations against a justice of the High Court, after the Deputy President ruled that his remarks were contrary to standing order 193. The Deputy President observed that senators should not make allegations of misconduct against judicial officers unless initiating action under section 72 of the Constitution for their removal.[82]

Former holders of the protected offices are not protected.[83]

Members of another house are entitled to the protection provided by standing order 193(3) when their house has been dissolved for an election and they are technically not members. It would be anomalous if the protection provided by the standing order were to cease simply because a house has been dissolved for election. There would also be the anomalous distinction between a lower house which has been dissolved and an upper house which has not and the members of which would continue to attract the protection. Therefore members of a house which has been dissolved continue to attract the protection of the standing orders until such time as the successor house meets. Members who retire or are defeated at the election then cease to attract the protection when their successors are in office. New members returned in an election are not protected until they take their seats, but nor are they protected as non-member candidates during an election.

It is for the chair to determine what constitutes offensive words, imputations of improper motives and personal reflections under this standing order. In doing so, the chair has regard to the connotations of expressions and the context in which they are used.[84]

All suggestions that members have lied, that is, deliberately and knowingly made untrue statements, are disorderly. Remarks to the effect that senators' statements are untrue or misleading are not necessarily out of order; for the chair to intervene there must be some implication that a senator has deliberately or knowingly made untrue statements. It is for the chair to judge whether that implication is present in any particular instance.[85]

It has been held that it is not in order to refer to a senator's religion in debate.[86]

For the quotation of documents which contain disorderly expressions, see above, under Quotation of documents.

It is not for the chair to judge the accuracy or truthfulness of senators' statements.[87] Statements by senators about matters of fact, including statements about persons protected by the standing orders, do not amount to offensive words merely on the basis that they are alleged to be false; that is a matter for refutation in debate, and not a question of order for the chair.[88] Similarly, statements about the policies of parties which are alleged to be incorrect are matters for correction in debate, not subjects for ruling by the chair.[89]

The chair may require the withdrawal of words which offend against the standing order, and a refusal to withdraw words at the direction of the chair constitutes disorder and may be subject to action by the chair.[90]

The chair normally does not require the withdrawal of words unless the chair has determined that they are contrary to the standing order, but if a senator finds a remark personally offensive, the chair may require its withdrawal to preserve the dignity of debate.[91]

A distinction has been drawn between statements about governments and statements about particular members or groups of members of Commonwealth or state parliaments. It has been ruled that remarks may be made about a government generally which would be unparliamentary if made about a particular member or group of members, although President Sibraa observed that it is a difficult distinction to make and that perhaps it is a distinction which should not be made.[92]

Where expressions are used which are open to an interpretation that makes them contrary to the standing orders, the Chair may ask the senator speaking to clarify their meaning and intention, and, if that meaning and intention is not contrary to the standing orders, may allow the senator to proceed on that basis without withdrawing the words in question.[93]

The chair discountenances the making of otherwise prohibited allegations against protected office-holders by the device of reporting such allegations while not adopting them.[94]

It is sometimes suggested that it is not disorderly to use offensive words against groups of members of either House as distinct from individually named members. There is no basis for this suggestion in the rules of the Senate. On the contrary, offensive words against a group of members of either House may be regarded as a worse offence than directing such words to an individual member.[95]

The chair does not wait for a senator to object to offensive words, but intervenes and requires the withdrawal of expressions which the chair regards as clearly contrary to the standing order.

Withdrawal of offensive words is accepted by the Senate, and a senator is not entitled to refer to them or debate them subsequently.[96]

Occasionally suggestions are made that disorderly remarks should be expunged from the Hansard transcript of debate, but this step has not been taken in recent times. Although committees, under the Senate's Privilege Resolutions, are required to consider the expungement of irrelevant evidence adversely reflecting on other persons,[97] such a step is regarded as undesirable because it alters the record without altering what has actually occurred in the course of the proceedings. This is more undesirable in the case of the Senate when proceedings may be reported in print and broadcast on radio and television, and when it is considered that Hansard should be as nearly as practicable an accurate record of debate.

The Chair of Committees in committee of the whole has the same authority to enforce standing order 193 as the President, but disorder in the committee can be dealt with only in the Senate.[98]

The expression "unparliamentary language" is used generically to refer to remarks which are contrary to the various prohibitions in standing order 193. The term is also used to refer to words which may be regarded by the chair as unacceptable in debate even when they are not directed to any of the protected institutions or office-holders listed in the standing order.[99]

The standing orders do not give any protection against offensive words or personal reflections to persons who are not explicitly protected by standing order 193. The Senate has, however, adopted procedures to allow such persons to respond to remarks made about them in the Senate.[100]

On two occasions it was ruled that reflections should not be made on the heads of state of friendly foreign nations.[101] These rulings, while reflecting a British House of Commons rule, have no basis in the standing orders. They have not been repeated and it is unlikely that they would now be followed.

The rules concerning language in debate may be modified by motions which necessarily require such modification for their determination. Where a motion to censure a minister directly accuses the minister of knowingly giving false information the rule against allegations of lying is not enforced to that extent. Similarly, if a motion were to be moved for an address to remove a judge, it could hardly be expected that the judge would be protected from adverse reflections in debate on the motion.[102]

A statement or denial made by a senator must be accepted by the Senate.[103]

It was formerly the practice to refer to the House of Representatives as "the other place"; avoidance of direct reference was a means of ensuring avoidance of any improper reflections. This custom is now generally not observed.

Matters relating to the conduct of senators in debate are also the subject of the Senate's Privilege Resolutions.[104] Resolution 9 enjoins senators to exercise their freedom of speech in the Senate with regard to the rights of persons outside parliament and not to make statements reflecting adversely on such persons without proper evidence. Resolution 5 provides for the publication by the Senate of responses by persons who have been adversely affected by references about them in the Senate.


73. SO 186(1).
74. Ruling of President Givens, SD, 15/7/1925, p. 1018.
75. SO 193.
76. SO 193(1).
77. See statement by President Hogg, SD, 11/8/2009, p. 4419.
78. For a resolution calling on the Governor-General to resign, or, if he does not, for the Prime Minister to advise the withdrawal of his commission, see 15/5/2003, J.1818-20.
79. SO 193(3).
80. Rulings of President Laucke and acting Deputy President Robertson, SD, 31/5/1979, pp. 2424, 2427-8, 19/3/1980, p. 779; also Standing Orders Committee, 5th Report of 59th Session, PP 50/1980, p. 5; see also under Discussion of decisions of courts, above.
81. See Chapter 20, Relations with the Judiciary.
82. 13/3/2002, J.165; 19/3/2002, J.216-7.
83. Ruling of President Sibraa, SD, 19/12/1988, p. 4484.
84. Statement by Deputy President West, SD, 25/8/1999, p. 7731; by President Calvert, SD, 27/3/2003, p. 10408; by President Hogg, SD, 23/3/2011, p. 1642.
85. Statements by President McMullin, SD, 31/10/1967, p. 1891; by Deputy President, 15/10/1991, pp. 1992-3; by President Sibraa, 9/12/1992, p. 4595; 26/5/1993, pp. 1340-1; 8/12/1993, p. 4162; by President Beahan, SD, 27/11/1995, pp. 3929-30.
86. Statement by President Calvert, referring to ruling by President McMullin, SD, 8/11/2005, pp. 20, 35-6.
87. Rulings of President Givens, SD, 28/2/1917, p. 10672; 25/7/1917, p. 415; statement by President Sibraa, 14/12/1992, pp. 4809-10.
88. Statement by President Beahan, SD, 1/9/1994, pp. 801-2.
89. Statement by President Calvert, SD, 4/12/2006, pp. 37-8.
90. See under Disorder, below.
91. Rulings of President Turley, SD, 6/9/1911, p. 98, 1/11/1911, pp. 2053, 2069, 29/11/1911, p. 3307, 14/12/1911, p. 4452, 1/11/1912, p. 5005; of President Hayes, 9/6/1939, p. 1581; of President Brown, 22/3/1944, p. 1713; of President Mattner, 10/9/1952, p. 1173.
92. SD, 26/5/1993, p. 1340; 18/11/1996, p. 5402.
93. Statement by President Reid, SD, 18/3/1997, p. 1655.
94. Statement by President Calvert, SD, 27/8/2002, p. 3778.
95. Rulings of President Baker, SD, 14/9/1905, pp. 2246-7; 19/9/1906, pp. 4839-40; President Givens, 7/12/1916, pp. 9496-8; President Kingsmill, 21/5/1931, p. 2154; 15/7/1931, p. 3864; 21/10/1931, p. 962; President McMullin, 9/3/1967, p. 450; President Sibraa, 10/12/1991, p. 4509; 26/5/1993, p. 1340-1; President Beahan, 30/8/1995, p. 694; President Calvert, 17/8/2006, p. 76; 28/2/2007, pp. 76-7; President Ferguson, 18/3/2008, p. 1065.
96. Ruling of President Givens, SD, 11/12/1913, p. 4115.
97. See Chapter 17, Witnesses, under Protection of witnesses.
98. SO 144(7).
99. See statement by President Reid, SD, 15/5/2002, p. 1631.
100. See Chapter 2, Parliamentary Privilege, under Abuse of parliamentary immunity: right of reply; for the right of witnesses to respond to adverse evidence, see Chapter 17, Witnesses.
101. Rulings of President McMullin, SD, 16/2/1956, p. 23; of President Cormack, 19/3/1974, p. 361.
102. SD, 14/8/2003, p. 13726. For a resolution calling on the Governor-General to resign, or, if he does not, for the Prime Minister to advise the withdrawal of his commission, see 15/5/2003, J.1818-20.
103. Rulings of President Gould, SD, 31/10/1907, pp. 5374, 5385, 9/8/1907, p. 1691; of President Lynch, 28/9/1932, p. 785; of President Cormack, 30/8/1973, p. 327; of President O'Byrne, 11/7/1974, p. 101.
104. See Chapter 2, Parliamentary Privilege.

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