Chapter 8 - Conduct
of proceedings
Suspension of standing orders
Another method of transacting business
which would not otherwise be in accordance with standing orders is for the
Senate to suspend its standing orders to allow a particular course of action to
be undertaken.
In cases of urgent
necessity standing orders may be suspended on motion without notice if the
motion is carried by an absolute majority
of the whole number of senators (SO 209). The proviso
relating to urgent necessity is a matter for the Senate to judge. If a senator
moves the suspension of standing orders, the Senate determines whether the
matter for which the suspension is sought is a matter of urgent necessity by
its determination of the motion (ruling of President Gould, SD, 21/7/1909, p. 1378).
If notice of a motion to suspend standing orders is given, however, the
motion may be carried by a simple majority, that is, a majority of the senators
present and voting. Such a notice of motion has no special precedence over
other business, so that if a senator who is not a minister gives such a notice
it is placed on the Notice Paper as general business and in all likelihood will
not be reached in the normal course of business.
In order to move
for the suspension of standing orders and to avoid the requirement for an
absolute majority, which is difficult to achieve, senators have
devised a number of contingent
notices of motion. These notices indicate that, contingent on a particular
stage being reached in the Senate’s business, the senators will move the
suspension of standing orders in order to allow a particular course of action.
This device of
moving for the suspension of standing orders under a contingent notice is
particularly used for the rearrangement of business. As has been explained
above, a minister may move a motion relating to the rearrangement of business
before the Senate at any time without notice under standing order 56, but a senator
who is not a minister may move only to postpone items of business of which the
senator has charge. There is no right of a senator who is not a minister to
move for the rearrangement of business. Thus party leaders and independent
senators usually place on the Notice Paper contingent notices that they will
move to suspend standing orders to allow them to move a subsequent motion to
rearrange business before the Senate. A notice of motion which allows this to
be done at the time for the postponement for business is in the following
terms:
LEADER OF THE OPPOSITION IN
THE SENATE: To move (contingent on
the President proceeding to the placing of business on any day)—That so much of
the standing orders be suspended as would prevent the Leader of the Opposition
in the Senate moving a motion relating to the order of business on the Notice
Paper.
Pursuant to this notice, at the time for the postponement of business a
senator may move that so much of the standing orders be suspended as would
prevent the senator moving a motion relating to the order of business on the
Notice Paper. This motion requires only a simple majority to be carried, and if
it is agreed to the senator may then move a motion to rearrange the business of
the Senate, for example, to give precedence over all other business to some
item of business standing on the Notice Paper in the senator’s name.
Senators have also devised contingent notices to allow them to bring on
for consideration some completely new item of business which is not on the
Senate Notice Paper, for example, some completely new motion. This contingent
notice is in the following terms:
LEADER
OF THE OPPOSITION IN THE SENATE:
To move (contingent on the Senate on any day concluding its consideration of
any item of business and prior to the Senate proceeding to the consideration of
another item of business)—That so much of the standing orders be suspended as
would prevent the Leader of the Opposition in the Senate moving a motion
relating to the conduct of the business of the Senate or to provide for the
consideration of any other matter.
It will be seen that the suspension of standing orders sought by a
motion moved pursuant to this notice would allow a senator to move any motion
which a minister may move under standing order 56 or a motion to
give precedence to some completely new item of business. Because standing order
56 is
not interpreted as allowing a minister to move for the consideration of a
completely new item of business, a contingent notice in the following terms is
employed by ministers:
LEADER OF THE GOVERNMENT IN
THE SENATE: To move (contingent on
the Senate on any day concluding its consideration of any items of business and
prior to the Senate proceeding to the consideration of another item of
business)—That so much of the standing orders be suspended as would prevent a
Minister moving a motion to provide for the consideration of any matter.
These contingent notices have virtually overcome the safeguard
contained in standing order 209, that a motion
for the suspension of standing orders moved without notice requires an absolute
majority. It may seem at first sight, therefore, that that safeguard could be
removed. If the safeguard were removed, it might also appear that, to avoid
complexity in the proceedings, senators should be allowed to rearrange the
business without a suspension of standing orders. The requirements to give a
contingent notice and to suspend the standing orders before a motion to
rearrange the business can be moved, however, still provide some safeguard. The
Senate must make a deliberate decision to depart from the standing orders in
order to allow some course of action to be undertaken, and the Senate has an
opportunity to determine whether standing orders should be suspended, that is,
whether the matter proposed to be raised is of urgent necessity, before making
a decision on the merits of that matter. It is therefore considered that the
limitations contained in standing order 209 should be
maintained.
It has been ruled
that a contingent notice of motion of this type may be used only once by any
senator at each occurrence of the contingency to which it refers. The rationale
of this ruling is that once the Senate has been asked to suspend the standing
orders to depart from the order of business on one such occasion and has
declined to do so, the request should not be capable of being repeatedly made,
because this would provide a means of permanently obstructing the business of
the Senate. (The rulings, and expositions of them, occurred on 3/12/1991, J.1826; 5/12/1991, J.1870-1; 16/11/1992, J.3063-4; 30/11/1992, J.3157; the Procedure
Committee recommended that the Senate uphold the rulings: 1st Report
of 1993, PP 158/1993, 29 September 1993. See also ruling of President Sibraa,
20/12/1993, J.1106; ruling by President Calvert, 14/9/2005, J.1108-9; 15/9/2005,
J.1141-2; Procedure
Committee, 2nd
Report of 2005, PP 280/2005, endorsed by the Senate 9/11/2005,
J.1380-1. As a result of the last decision of the Senate, the Chair is able to
exercise a discretion in applying the ruling to ensure that adequate
opportunity is given to senators to state a case for a suspension of standing
orders.)
These general
purpose contingent notices for suspension of standing orders are designed to
allow the rearrangement of business to bring on any item of business, which of
course is not specified in the contingent notices. The use of such notices
therefore involves suspending standing orders first, then moving to rearrange
the business, then moving the motion concerned. Contingent notices designed to
deal with particular circumstances often have suspension of standing orders
built into their terms, so that the intermediate step is not necessary
(18/10/1996, J.756).
A motion for suspension of standing orders moved during consideration
of a matter must be relevant to that matter (SO 209(3)). This means
that contingent notices of motion to suspend standing orders to rearrange the
business can be employed only when there is no other business before the chair.
Suspension of standing orders is limited to the particular purpose for
which the suspension has been sought (SO 210). Thus, if a
senator is successful in moving a motion to suspend standing orders to allow
the moving of a substantive motion, the only standing orders which are
suspended are those which would prevent the moving of the motion, and the
motion and any debate on it are still subject to all other provisions of the
standing orders, such as standing order 193 relating to
rules of debate.
Debate on a motion to suspend standing orders is limited to five
minutes for each senator speaking and 30 minutes in total (SO 209(4)). This
limitation does not suspend the requirement for relevance to the question of
whether standing orders should be suspended (ruling of President Sibraa, 20/12/1993, J.1106). A
compound motion incorporating a suspension of standing orders is subject to
these time limits only if the suspension is its primary purpose and not merely
incidental to the motion.
A motion for
suspension of standing orders may be moved in
committee of the whole, provided that it is relevant to the matter under
consideration in the committee (SO 209(3). Precedents:
23/10/1956, J.185; 4/6/1969, J.521; 9/11/1977, J.396; 16/5/1980, J.1349). It may
be regarded as anomalous that a committee of the whole can suspend the standing
orders, but standing order 144(7) provides
that in committee of the whole the same rules of procedure apply as in the
Senate, except where the standing orders explicitly otherwise provide.
Moreover, in dealing with a motion to adopt a report of a committee of the
whole the Senate has the opportunity to approve of anything the committee has
done in considering the matters referred to it (see Chapter 14 on Committee of
the Whole Proceedings).
A question arises
as to the effect of the procedural motion to allow a substantive motion to be
moved, or some item of business to be called on, after standing orders are
suspended. This procedural motion takes the form: “That a motion to ...... may
be moved immediately (or, that the order of the day relating to ...... be
called on immediately) and have precedence over all other business this day
till determined”. The question is whether this motion has the effect of
suspending the consideration of all other items in the routine of business,
such as question time, or whether it merely gives precedence over other business
in the strict sense of the word, that is, government and general business. The
interpretation which has been followed is that if such a motion is passed
before any business is embarked upon, the subsequent substantive motion has
precedence over all other business including business which has a fixed place
or time in the routine of business. This was the case with the motions agreed
to on 9
December 1991 and 5 November 1992 (J.1885, 2965). If, however, the procedural motion is
passed at discovery of formal business, at the placing of business or during
consideration of government business, the subsequent substantive motion has
precedence only over business in the narrow sense, and may be interrupted by
other items in the routine of business which have a fixed place or time in the
routine, such as question time. This was the case with the motion agreed to on 25 June 1992 (J.2610).
In neither circumstance does continuing debate on the substantive
motion interfere with suspensions of the sitting or the putting of the question
for the adjournment of the Senate.
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