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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 12 - Legislation

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Disagreement of House with Senate amendments

If the House of Representatives returns to the Senate a bill which has originated in the House and on which the Senate has made amendments, and the House:

  1. disagrees to amendments made by the Senate; or
  2. agrees to amendments made by the Senate with amendments,
  3. the bill and the House's message are considered in committee of the whole, and the Senate may:
  4. insist, or not insist, on its amendments;
  5. make further amendments to the bill consequent upon the rejection of its amendments;
  6. propose new amendments as alternative to the amendments to which the House of Representatives has disagreed;
  7. agree to the House of Representatives amendments on its own amendments, with or without amendment, making consequential amendments to the bill if necessary;
  8. disagree to those amendments and insist on its own amendments which the House of Representatives has amended; or
  9. order the bill to be laid aside.179

If the Senate does not insist on its amendments, the House is advised accordingly and the bill, as passed by the House, proceeds to the Governor-General. If the Senate takes any of the other actions listed, other than ordering the bill to be laid aside, the House is advised and asked to concur with the action taken by the Senate.

This procedure is also devised to ensure that the Senate has maximum freedom to seek agreement with the House, while concentrating its attention on the matters of disagreement.

To determine whether the Senate insists on its amendments, a motion may be moved in the committee of the whole that the committee does not insist on the amendments, or that the committee insists on the amendments. Normally the former motion is used; usually a minister in charge of a government bill asks the committee not to insist on amendments to which the government in the House has disagreed. If that motion is negatived by a majority, the committee has resolved to insist upon the amendments, and similarly if a motion that amendments be insisted on is negatived by a majority, the resolution of the committee is not to insist on the amendments. If either motion is negatived by an equally divided vote, however, the amendments are not insisted on and the bill proceeds without the amendments, the rationale of this being that there is then not a majority in support of the amendments, which required majority support to be carried in the first instance. If a clause is negatived in the first instance an equally divided vote on either motion indicates that the clause still lacks majority support and the amendment, that is, the omission of the clause, is insisted on.180

If an equally divided vote results in an amendment not insisted on, a similar vote could prevent the final passage of the bill by negativing either of the questions for the resolution of the committee to be reported or the report of the committee to be adopted. The bill would then not be rejected but would remain in the Senate and would not pass.181

The motion that the Senate not insist on its amendments disagreed to by the House may be combined with other elements to secure agreement between the Houses; for example, the motion may be that the Senate does not insist on such amendments and agrees to substitute amendments made by the House. Such a compound question, however, may be divided by the chair at the request of any senator so as to allow maximum opportunity to ascertain the course of action preferred by a majority of the Senate.182 Thus, in proceedings on the Native Title Amendment Bill 1997 in July 1998, the motion that the Senate not insist on its amendments disagreed to by the House and agree to the amendments made by the House was divided to allow consideration of groups of Senate and House amendments and proposed new amendments.183

Agreement by the Senate to the action of the House of Representatives does not preclude an amendment to the motion for the adoption of the report of the committee of the whole expressing the Senate's opinion on relevant matters.184

In relation to the Financial Sector Legislation Amendment Bill (No. 1) 2000, the government took the unusual step of moving in the Senate a compound motion including the element that the Senate insist on some amendments. This was done because the government decided to accept some Senate amendments which it had at first rejected in the House.185

Standing Order 132 provides that the Senate may "propose new amendments as alternative to the amendments to which the House of Representatives has disagreed". The expression propose new amendments would cover not only making new amendments but also making requests for amendments where the new amendments are of a character which the Senate is not empowered to make under section 53 of the Constitution.186

Where a senator proposes new amendments consisting of the omission of clauses or items, the chair puts the question that the clauses or items stand as printed, as with clauses or items considered in the first instance.187

To any motion moved under these procedures, words may be added to express the view of the Senate, for example, to indicate that the Senate's non-insistence on an amendment should not be regarded as setting a legislative precedent.188

To ensure that new issues are not raised when the bill is returned from the House of Representatives, a special rule is provided, as with bills originating in the Senate. No amendment may be proposed to any part of the bill which has received the concurrence of the House and which has not been the subject of, or immediately affected by, some previous amendment, unless a new amendment is consequential on an amendment already agreed on by the Senate.189 A suspension of standing orders is necessary to allow an amendment contrary to this rule.190

If the Senate disagrees with amendments made by the House of Representatives to the Senate's amendments, the message returning the bill again to the House of Representatives contains reasons for the Senate not agreeing to the amendments proposed by the House, drawn up in the same way as reasons for disagreeing with amendments made by the House to a bill originating in the Senate.191

Unlike the rule in standing order 127(1) relating to bills originating in the Senate, there is no limitation in the standing orders on the number of occasions on which the bill can be returned to the House of Representatives before the bill is laid aside or a conference with the House is sought. The rationale of this distinction is to give the Senate maximum freedom to review a bill originating in the House.