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Chapter 12 - Legislation
Committee of the whole: amendments
When a bill has been read a second time, unless the bill is
at that stage referred to a standing or select committee, the Senate proceeds
immediately to consider the bill in committee of the whole, regardless of
whether the bill is considered under the traditional deliberate procedure or
the expeditious procedure.
A bill is not considered in committee
of the whole, however, unless a senator circulates amendments to the bill or
requires that it be considered in committee (SO 115(1)).
A minister, under standing order 56, may move to defer consideration of a bill in committee
of the whole, but other senators may not do so except by a suspension of
standing orders (5/11/1987, J.268-9). Any senator may, however, move that the committee of the whole report progress
(that is, postpone its consideration of a bill), and then move that the
committee have leave to sit again at some future time (see Chapter 14,
Committee of the Whole Proceedings; for precedent, 13/6/1984,
J.986).
In committee of
the whole a bill is considered in detail, and amendments may be moved to any
part of the text of the bill. The rationale of considering a bill in committee
of the whole is that the procedures of a committee are designed to facilitate
detailed examination and amendment of bills. (For the nature of proceedings in
committee of the whole generally, see Chapter 14, Committee of
the Whole Proceedings; for precedent of a bill amended in the Senate rather
than in committee of the whole, 3/4/1974, J.84.)
The standing orders provide that a bill
is to be considered clause by clause (SO 117; a clause is a numbered paragraph of
a bill which becomes a section of the resulting statute when the bill is
passed). In relation to each clause the Chair of Committees puts the question
that the clause stand as printed. With that question before the committee,
senators may move any amendment to the text of the clause, and if amendments
are agreed to the question is then put that the clause as amended be agreed to.
The committee may negative the question that the clause stand as printed, and
the clause is then left out of the bill as an amendment. This means that each
clause of a bill must be supported by a majority of the Senate to be passed,
because the question on a clause is negatived if the ayes and noes are equal
(see Chapter 11, Voting and Divisions). Where bills contain long clauses or
schedules consisting of numerous provisions or items, it is the practice to put
those provisions or items separately as if they were separate clauses, so that
senators who wish to omit any of them may vote against them. For any other kind
of amendment to be agreed to, however, there must be a majority in favour of the
amendment. When a clause is amended, a question is put that the clause as
amended be agreed to, and there is then a further opportunity to reject the
clause (SO 118(3)).
Amendments may
also insert new clauses into a bill.
When an amendment has been moved, a
senator may move an amendment to the amendment, as with amendments to motions
(see Chapter 9, Motions and Amendments, under Amendments).
A complicated amendment may be divided,
as with a complicated question (see Chapter 10, Debate, under Dividing the
question; the provision in SO 84(3) applies by virtue of SO 144(7); see 27/10/1931,
J.408).
The preamble and title of a bill are considered after the clauses
and any schedules. The reason for this is that amendments
made to the clauses of a bill may require consequential amendments to the
preamble or title (SO 117(1)). An amendment of the title,
however, need not necessarily arise from another amendment (8/3/1967,
J.35; 24/8/1984, J.1049-50). An amendment of the title
is specially reported (SO 118(4)).
The enacting words of a bill are not put
to the committee (SO 116), but there are precedents for
amendment of enacting words on an instruction (19/6/1901,
J.37; 20/6/1901, J.42; 30/1/1902,
J.268).
In the course of consideration of a bill,
any clause may be postponed whether or not it has been amended (SO 117(5)). A motion to postpone a clause may
be debated. Clauses may be postponed for a particular purpose or until a
particular occurrence, for example, until a minister provides information or
documents (28/5/1992, J.2349-50).
In practice this
prescribed order for considering a bill is often varied by leave, that is, by
unanimous consent of senators present. Often a bill is taken as a whole, which
means that the whole of the bill is considered and amendments may be moved to
any part of it. This is usually done with short bills. The clauses of a bill
are usually considered in groups of related clauses, and amendments are moved
to the related clauses. This is often done with long or complex bills.
It is also established practice to allow
senators to move amendments together in groups, particularly where there are
closely related amendments.
When a bill is
taken as a whole by leave, however, opposition to a clause or item is not put
in the form of an amendment. This would raise the possibility of a clause or
item being carried without a majority, because if that question is negatived
with the votes equally divided, the amendment is negatived and the clause or
item remains notwithstanding that it does not have majority support. The
question is therefore put separately on any clause or item which is opposed,
this procedure being a form of division of the question (14/11/1991, J.1709 and 1719; 18/12/1991, J.1960; 3/12/1992, J.3211, 3219). This procedure ensures
that where a senator opposes a clause or item the question on the clause or
item is put in the proper form and the risk of a clause or item being carried
without a majority is avoided.
In proceedings on complex bills all
amendments may be debated in turn and then put separately and in order at the
end of that debate in accordance with an agreed schedule. This procedure is
particularly useful in dealing with amendments which are circulated in the
course of the debate (Social Security (Budget and Other Measures) Bill 1996 and
associated bill, 13/12/1996, J.1317-31).
An amendment must be relevant to the
subject matter of the bill (SO 118(1)). As with relevance in debate (see
Chapter 10, Debate, under Relevance) and in relation to amendments to the
motion for the second reading (see under Second reading, above), the
requirement of relevance is interpreted liberally, so that senators have
maximum freedom to move amendments. In determining relevance, the question is:
“What is the subject matter of the bill, and does this amendment deal with that
subject matter?”. The long title of a bill can be taken as
an indication of its subject matter, but does not conclusively determine the
question. Thus, if a bill has the long title “A Bill for the Act to amend the Social
Security Act 1991”, any amendment relating to social security or to any
matter dealt with by the Social Security Act is probably a relevant amendment.
If, however, a bill has the long title “A Bill for an Act to amend the Social
Security Act 1991 in relation to age pensions”, this is an indication that
the subject matter of the bill is age pensions and amendments to deal with
other matters covered by the Social Security Act would probably not be relevant
to the bill. It must be emphasised, however, that the long title is indicative
but not determinative of a bill’s subject matter. There is no requirement, as
there is in some Houses which follow British precedents, for amendments to be
consistent with the scope and principle of the bill. (Rulings of President
Baker, SD, 14/7/1904, p. 3243; 27/10/1905, pp 4202-4; 14/11/1905, p. 5004.)
The ability of
the Senate to amend the title of a bill does not affect the rule of relevance.
An irrelevant amendment cannot be made relevant by amending the title.
Amendments not
relevant to a bill may be made if the Senate has so authorised by a suspension
of standing orders (5/5/1986, J.967-8; 4/12/1986,
J.1558‑9).
The only other substantive restriction on
amendments moved in committee of the whole is that an amendment cannot be moved
if it is the same as one already negatived or is inconsistent with one that has
been agreed to by the committee, unless the bill has been recommitted, that is,
referred again to the committee by the Senate for further consideration (SO 118(2); 23/2/1944, J.44-5; for a
suspension of this rule, see 23/6/1999, J.1228). An amendment moved in a different context, for example, as part of a
different “package” of proposals, is not the same amendment even if identical
in terms to one already moved (SD, 8/11/2000, pp 19358-9).
Rulings have
been made to the effect that amendments are not in order if they are
unintelligible, internally inconsistent, inconsistent with the bill, or a
direct negation of the object and subject matter of the bill (rulings of
President Baker, SD, 27/9/1906, p. 5591, of President Givens, 10/10/1918,
p. 6776). There has been no occasion for these rules to be invoked in recent
times (for amendments which significantly altered the effect of a bill: 4/6/1992,
J.2432-3).
When a bill contains the text of an
agreement which has been concluded, for example, an
agreement between Commonwealth and state governments, it is clearly not
possible for the Senate to amend the terms of the agreement, but the bill may
be amended to bring about that purpose. If the bill contains a provision to
approve the agreement, that provision may be amended so as to approve the
agreement subject to specified amendments (30/11/1932, J.188; 16/8/1972,
J.1061; 10/12/1976, J.545-6).
For the
difficulty presented by national uniform legislation, see Chapter 15, Delegated
legislation, under that heading.
It is usually
during the committee of the whole stage of a bill that notice is taken of any
comments on the bill by the Standing Committee for the Scrutiny of
Bills, and amendments may be moved as a result of the committee’s comments (see
Chapter 16, Committees, under Scrutiny of Bills Committee).
When a bill is before a committee of the
whole, or a standing or select committee, no reference may be made in the
Senate to the committee’s proceedings until the committee has reported to the
Senate (SO 119). This rule ensures that a committee
is allowed to complete its work before the bill is again discussed in the
Senate.
A committee of the whole on a bill may
report progress (see Chapter 14, Committees of the Whole, under Reporting
progress). Progress may be reported for a particular purpose, for example,
until a minister answers questions or provides information (20/5/1975,
J.655-7).
When the committee of the whole has
completed its consideration of a bill, the Chair of Committees puts the
question that this bill (or this bill as amended) be reported, and if that
question is agreed to the President resumes the chair and the bill is reported
to the Senate (SO 120(1)).
On the motion for the bill to be reported
an amendment may be moved to require the reconsideration of any clauses (SO 120(2); 18/6/1991, J.1216). This provides
an opportunity for the committee, before the bill is reported to the whole
Senate, to reconsider any parts of the bill. Clauses may also be reconsidered
by leave (14/12/1989, J.2385; 22/3/1995,
J.3114).
It is possible
for the committee of the whole to negative the question that the bill as
amended be reported. This would have the effect that the committee has declined
to report the bill, and should logically occur only if the committee wishes to
consider the bill further.
Where a bill is taken as a whole,
questions are put that the bill stand as printed or that the bill as amended be
agreed to. These questions may also be negatived,
but this means that the committee has, in effect, rejected the whole bill. It
is not logical that this should occur, because the opportunity to reject a bill
completely is at the second reading, and if the committee of the whole has
agreed to amendments it should not be rejecting the bill as amended. There have
been occasions, however, of a bill being negatived in committee of the whole (11/11/1981, J.643; 4/5/1992, J.2249; 15/12/1992,
J.3370; 11/7/1998, J.4343). If this occurs, the committee
reports to the Senate that the bill has been negatived in committee and the
Senate may adopt the committee’s report, thereby agreeing with the action taken
by the committee, or may recommit the bill to the committee (see under
Recommittal, below). Rejection by the Senate of the question that the report of
the committee be adopted would have the effect of recommitting the bill (statement by President Reid, SD, 11/7/1998, pp 5708-9).
A committee of
the whole to which several bills have been referred may report separately on
some of those bills, leaving the remainder for future treatment (30/6/1995,
J.3629-30; 25/9/2002, J.821). When bills have been reported
separately in this way, some may be proceeded with and others deferred (29/8/2001,
J.4808-10). In effect, the committee decides to separate the bills, and the
Senate may approve of that action by its treatment of the committee’s report
and its subsequent action in relation to the bills.
When a bill is reported by a committee of
the whole, if it is proceeding under the deliberate
traditional method the Senate must fix a future day for the adoption of the
committee’s report, but under the expeditious method, or if the bill has not
been amended in committee, the motion for the adoption of the committee’s
report may be moved at once (SO 120(2)).
The motion for
the adoption of the committee’s report may be debated, but it is not in order
to revive the discussion which took place in the committee (ruling of President Givens,
SD, 18/3/1920, p. 506).
The motion may
also be relevantly amended. An amendment may express the Senate’s opinion
concerning a matter associated with the bill (ruling of President Givens, SD,
25/11/1920, pp 7014-5; 9/12/1971, J.850-1; 14/12/1982, J.1315; 2/12/1983,
J.540-1; 16/10/1984, J.1228; 24/3/1994, J.1524-6); declare the Senate’s intention in making
requests (24/3/1994, J.1504); seek to defer the bill (25/2/1977, J.595); refer it to a standing or select committee (11/4/1986,
J.884; 24/3/1994, J.1504; 13/12/1996, J.1337); refer to a committee matters
raised by amendments (17/11/1993, J.800; 22/11/1993, J.843); make a standing
order for documents (24/3/1994, J.1517); make an order for a report by a
statutory authority (25/3/1999, J.626); provide for the urgent despatch of a
message (31/5/1985, J.381).
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