Procedures for regular referral to committees
The Selection of Bills Committee considers all bills before the Senate and makes recommendations about which bills should be referred to committees.76 The committee does not make decisions on its own estimation, but takes note of the general view among senators as to which bills should be referred.
A procedure for referring bills by adoption of reports from the Selection of Bills Committee is provided. Such a motion may be moved immediately upon the presentation of the report of the committee, and may be amended to refer to a standing or select committee any bill not recommended for referral in the report or otherwise alter the committee's recommendation. A time limit of five minutes per speaker and 30 minutes in total is imposed on debate on the motion, but any amendment a senator wishes to move must be put and determined. Similar time limits apply to other methods of referring bills (see above). The mover of the motion may speak in reply, if time permits.
Referral of bills may take place at any stage with recent trends indicating that most referrals occur at the earliest possible stage (usually soon after introduction in either House but sometimes contingent on a bill's introduction).77
Bills are usually referred to the appropriate legislative and general purpose standing committees, but the procedures also allow for referral to ad hoc select committees.
The procedures do not contain any instructions as to how the committees are to deal with bills referred to them. The committees may determine the appropriate method of dealing with particular bills. The committees have available to them all the committee techniques, including taking evidence from members of the public. Some bills require only minimal examination, perhaps clarification of some technical points with responsible ministers and departmental officials; others merit "full treatment", including advertising for submissions and public hearings; and some bills require some intermediate treatment, for example, the taking of limited evidence from interested bodies. The committees may not amend bills, but may recommend amendments.78
The procedures also leave unrestricted the treatment which the Senate may accord a bill when it returns from a committee. A bill which has been thoroughly examined in a committee may nevertheless be examined in detail again in committee of the whole. Particularly complex bills inevitably attract further detailed consideration and further amendment in committee of the whole. This has happened with many complex bills referred to committees.
A fast method of processing bills returned from committees is provided, however, by means of a motion for the adoption of a committee's report, thereby adopting any amendments recommended by the committee. This motion may not be moved if a senator has circulated other amendments. In that case the bill proceeds in the normal way. This provision safeguards the right of senators to move amendments.79
Till 2000, about 35 percent of all bills passed by the Senate were referred to committees under these procedures. Since then the percentage has risen steadily to over 60 percent on average.
Amendments of the motion to adopt the committee's reports are reasonably common. Separate motions modifying previous orders adopting reports of the committee have frequently been passed; proposed amendments to bills, regulations and draft regulations have been referred to committees in conjunction with bills.80 The motion to adopt a report on a bill has been less frequently used, mainly because modifications of the committee's recommendations lead to complexity. The following precedents, however, are of interest:
- motion to adopt standing committee report, modification of recommended amendments, further amendments;81
- motion to adopt standing committee report, bill not referred on Selection of Bills Committee report;82
- motion to adopt standing committee report, amendment of motion to amend bill.83
Before the adoption of these procedures in 1989 the Senate referred bills to committees on an ad hoc basis, and depended upon an assessment by the majority of the Senate that particular bills required examination in a committee. Many of the bills referred were those which involved significant innovations and on which there were diverse opinions. The consideration of such bills by committees almost invariably led to substantial changes to the bills, which is not surprising, because the bills referred were those most likely to be amended, but the process of amendment was greatly facilitated by consideration in committees. This led to a general view in the Senate that examination of bills by committees is a productive and worthwhile process resulting in much-improved legislation. There were therefore suggestions over many years to devise procedures for more regular referral of bills to committees.
Those suggestions led to the establishment in 1988 of a Select Committee on Legislation Procedures. This committee reported at the end of 1988.84 It unanimously recommended that more bills be referred to committees and that procedures be established for that purpose. The report of the committee pointed out, amongst other things, that the Houses of the Commonwealth Parliament pass many more bills than their counterparts abroad, but sit many fewer days per year, suggesting that legislating in Australia is an over-hasty process. The select committee, however, offered the prospect of achieving two seemingly contradictory aims: speedier but more thorough examination of legislation by the simultaneous consideration of a number of bills in committees. It was also envisaged that in scrutinising legislation the standing committees would supplement, and follow up, matters raised by the Scrutiny of Bills Committee.85
The report of the select committee was adopted on 5 December 1989, the procedures operating as sessional orders from August 1990. The procedures were debated in the Senate on 11 September and 9, 10 and 11 October 1990, and during the debate it was alleged that the government was attempting to curtail the procedures. A motion to terminate the procedures at the end of June 1991 was rejected by the Senate on 13 February 1991. The procedures were renewed as sessional orders until they were incorporated into the standing orders in February 1997.
The Select Committee on Legislation Procedures also made recommendations, which were adopted but subsequently modified by the Senate, concerning the consideration of proposed expenditure by committees and the procedures applying to appropriation bills. These matters are referred to in Chapter 13, Financial Legislation.