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Chapter 10 - Debate
Rules of debate
In
speaking in debate a senator addresses the President, or the Chair of
Committees in committee of the whole (SO 186(1)). Other
senators are referred to in the third person and are not addressed directly
(ruling of President Givens, SD, 15/7/1925, p. 1018). 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 (SO 193). 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Senate, except where a motion is moved for a vote to be rescinded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 (SO 193(1)) is seldom
invoked. 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.
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. (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.)
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 (SO 193(3)) 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.
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 (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, 31 March 1980, PP 50/1980, p. 5; see also under Discussion of
decisions of courts, above). 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 (see Chapter 20, Relations with the
Judiciary).
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 (13/3/2002, J.165; 19/3/2002, J.216-7).
Former holders of the protected offices are not protected (ruling of President Sibraa, SD, 19/12/1988, p. 4484).
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 (statement by Deputy President West, SD, 25/8/1999, p. 7731; by President Calvert, SD, 27/3/2003, p. 10408).
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. (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.)
It has been held
that it is not in order to refer to a senator’s religion in debate (statement
by President
Calvert, referring to
ruling by President McMullin, SD, 8/11/2005, pp 20, 35-6).
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 (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). 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 (statement by President Beahan, SD, 1/9/1994, pp 801-2). 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
(statement by President Calvert, SD, 4/12/2006, pp 37-8).
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 (see under
Disorder, below).
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 (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).
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 (SD, 26/5/1993,
p. 1340; 18/11/1996, p. 5402). ç
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 (statement by President Reid, SD,
18/3/1997, p. 1655).
The chair discountenances
the making of otherwise prohibited allegations against protected office-holders
by the device of reporting such allegations while not adopting them (statement
by President Calvert, SD, 27/8/2002, p. 3778).
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 (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).
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 (ruling of President Givens, SD, 11/12/1913, p. 4115).
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 (see Chapter 17, Witnesses, under Protection of
witnesses), 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
(SO 144(7)).
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. (See statement by President Reid, SD, 15/5/2002, p. 1631.)
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 (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).
On two occasions it was ruled that reflections should not be made on
the heads of state of friendly foreign nations (rulings of President McMullin, SD, 16/2/1956, p. 23; of President Cormack, 19/3/1974, p. 361). 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. (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.)
A statement or denial made by a senator must be accepted by the Senate
(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).
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 (see Chapter 2, Parliamentary Privilege). 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.
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