Chapter 13 - Financial legislation
Procedure on financial legislation
Except as described in this section, financial bills are proceeded with
by the Senate in the same way as other bills.
The motion for the first reading of bills which the
Senate may not amend, unlike the equivalent stage of amendable bills, is
debatable (SO 112(2)). This
variation in respect of non-amendable bills is necessary because, in compliance
with the provision of section 53 of the Constitution that a request for an
amendment may be made at any stage, requests may be moved on the motion for the
first reading of such a bill (see below).
In debate on the motion for the first reading, matters not relevant to the subject
matter of the bill may also be discussed (SO 112(2)). The
purpose of this provision is to provide the Senate with a further opportunity
to debate matters of general interest, and, on each piece of financial
legislation, to discuss the general financial policy of the government.
In proceedings on bills which the Senate may not amend, requests for
amendments may be made at any of the following stages of a bill:
(a) On the
motion for the first reading of the bill.
(b) In
committee after the second reading has been agreed to.
(c) On
consideration of any message from the House of Representatives referring to the
bill.
(d) On the
third reading of the bill (SO 140(1)).
This standing order puts into effect the provision of section 53 of the
Constitution that the Senate may make a request for an amendment at any stage
of the consideration of a bill.
The motion for the
second reading of a bill, however, is not included in the list of stages at
which requests may be made. This provision was adopted on the basis that the
second reading debate should be confined to the principles of a bill and the
question of whether it should be passed subject to any subsequent requests. The
Senate is not excluded, however, from making requests on the second reading,
and may do so if this is appropriate (statement by President Gould, SD, 9/9/1909, p. 3225. For an
early precedent of a request at the second reading, see Supply Bill (No. 1)
1901, 14/6/1901, J.35-6). Requests
to be moved to the second reading of the Customs Tariff Amendment Bill (No. 2)
2001 and the Excise Tariff Amendment Bill (No. 1) 2001 were circulated in April
2001, but were not moved when the government agreed to amend the bills by way
of requests moved in committee of the whole (the requests at second reading
would have sought the division of the bills).
Under the expedited method for the introduction of bills, the motion
for the first reading is dealt with together with other procedural motions and
is now treated purely as a formal step. The second reading has therefore
replaced the first reading as the first stage at which a request may
effectively be moved.
For a precedent of a request moved on the motion for the first reading,
see Customs Tariff Bill 1933, 31/5/1933, J.220. The request, motion for which was negatived,
sought the return of the bill to the House of Representatives for the purpose
of its amendment along certain lines which were indicated in the motion in a
general way. For further precedents for requests moved on the motion for the
first reading, see Appropriation Bill 1954-55, 28/9/1954, J.39; Appropriation
Bill 1956-57, 16/10/1956, J.171. For a further precedent of a request in
general terms, see Social Security (Home Child Care and Partner Allowances)
Legislation Amendment Bill 1994, 24/3/1994, J.1504-6, 1523-6.
In practice,
requests for amendments of non-amendable bills are now usually made during the
committee of the whole stage.
If a request for an amendment is made at any stage, the
bill is then returned to the House of Representatives with the request for
amendment, and the bill is not further proceeded with by the Senate until the
request has been dealt with (SO 140(4)). When requests for
amendments are agreed to in committee of the whole, the report of the committee
is adopted by the Senate, the bill is returned to the House of
Representatives with the requests, and the third reading of the bill is not
moved until the requests have been dealt with (SO 129(1)).
Bills which the Senate may amend but which are subject to requests for
amendments are dealt with in the same way. If the Senate makes both requests
and amendments in relation to a bill, the bill is returned after the committee
stage to the House of Representatives with the requests, and when the requests
are dealt with the bill is again returned with a message asking for concurrence
of the House with the amendments (SO 129). The message
forwarding the requests, however, also sets out the amendments which the Senate
has made to the bill. The rationale of this procedure is that the House should
know of all the amendments required by the Senate before it deals with the
Senate’s requests. The House cannot actually deal with the Senate’s amendments,
however, until the requests have been disposed of and the Senate has passed the
bill.
When the House makes amendments requested by the Senate and makes
further amendments to the bill, the bill is not read a third time until the
Senate has agreed to the House amendments (23/8/1999, J.1512, 1533; 18/10/1999, J.1922).
The Senate has dealt with requests suggested by the House of
Representatives in substitution for Senate requests: 15/4/1986, J.898-9; 16/4/1986, J.904-12; 17/4/1986, J.917-8.
It is open to the Senate to request an amendment to a bill which is
otherwise amendable as an alternative to amendments to the bill to which the
House of Representatives has disagreed (see Chapter 12, Legislation, under
Disagreement of House with Senate amendments). For example, in respect of an
appropriation bill not for the ordinary annual services, the Senate may make
amendments to the bill, and when the House of Representatives disagrees with
the amendments the Senate may request an amendment to increase the amount of
the appropriation as an alternative to the original Senate amendments disagreed
to by the House. In that circumstance the Senate’s non-insistence on its
amendments is conditional upon the House making the requested amendment; it is
not open to the House to decline to make the requested amendment and forward
the bill for assent on the basis that the Senate had not insisted on its
amendments. When the House has dealt with the Senate’s requests the bill is
returned for the Senate’s final agreement (è27/6/1996, J.431-3; 28/6/1996, J.442).
If the Senate amends a bill and the House of Representatives returns
the bill with a suggestion that any amendments should have been made in the
form of requests, the Senate, if it agrees with this suggestion, may then
return the bill with requests, and after such requests have been dealt with any
Senate amendments not resolved may be dealt with in accordance with procedures
for amendments (SO 130). (For
precedents of amendments changed to requests, see Sugar Bounty Bill
1903, 15, 22, 23, 24/7/1903; J.67, 80, 83, 87; Local Government (Financial
Assistance) Amendment Bill 1992, 25/6/1992, J.2621, 2632, 2641.) In this circumstance
also the Senate should make its non-insistence on its amendments conditional
upon the requested amendments being made. In 1997 the government in the House
of Representatives adopted the device of rejecting requests which its advisers
claimed should have been amendments, but making identical amendments to the
bill and then asking the Senate to agree to the amendments. This appears to
have been resorted to as a means of saving time at the end of a period of
sittings (Social Security and Veterans’ Affairs Legislation Amendment (Family
and Other Measures) Bill 1997; see statement by Chair of Committees, SD,
2/12/1997, pp 10130-31.)
In committee of the whole on a bill which the Senate may not amend, the
following procedures are followed:
(a) The Chair
calls on each clause or item, and puts the question — That the clause or
item be now passed without requests.
(b) If
motions for requests are moved and passed, the Chair puts a further question —That the clause or
item be now passed, subject to the requests being complied with.
(c) If either
of those questions is negatived, it is again proposed by the Chair, and
consideration of the clause or item may continue until either question is
agreed to. (SO 140(3))
The reason for the questions in relation to clauses or items being put
in this form, rather than the question for an amendable bill, that the clause
stand as printed, is that the Senate cannot amend the bill by negativing a
clause as it can with an amendable bill.
If the committee, by majority vote, continues to negative the question
that the clause or item be now passed without requests, or be now passed
subject to requests being complied with, this means that the committee wishes
to continue to consider the clause or item in question.
In 1993, in relation to the Customs Tariff
(Deficit Reduction) Bill 1993 and the Excise Tariff
(Deficit Reduction) Bill 1993, the question arose of the effect of the
negativing of either of those
questions by an equally divided
vote, which would raise the possibility of the committee being unable to
proceed to a subsequent clause of a bill. Although a formal ruling was not
given on this question by the chair, it was suggested in an advice provided to
the President and to senators by the Clerk of the Senate that, in this
situation, the Chair of Committees should indicate to the committee that if
there are no further requests to be moved the clause is passed without requests
and the committee proceeds to the next clause.(For text of advice, see SD,
21/10/1993, p. 2448.) The rationale of this ruling would be that making a
request is the only action the committee can take on the clause of a
non-amendable bill, although, of course, at the third reading stage the Senate
can reject the whole bill.
At the request of
any senator a clause or item under consideration is divided (SO 140(3)(d)).
Consideration of a clause or item may be postponed, as with an
amendable bill. (For postponement of items until documents tabled, see
28/5/1992, J.2349-50; for deferral of bills until information provided, see
20/5/1975, J.655-7; 12/8/2003, J.2089-90; 1/4/2004, J.3324-5; separate
consideration in committee of the whole of answers to questions raised during
committee of the whole debate: 28/5/1990, J.151.)
Any senator may move a request for an amendment. In that respect, a
senator has a greater power in relation to financial legislation than a member
of the House of Representatives, other than a minister. Under the
procedures of that House, a private member cannot move an amendment involving
the imposition of taxation or an increase in an appropriation in a bill (the latter kind of
amendment requiring a message from the Governor-General).
A proposed request may be amended, just as a proposed amendment may be
amended.
As with amendments
made by the Senate, it is not normal for reasons for requests to be sent to the
House of Representatives, although it would be open to the Senate to do so if
it chose (ruling of President Baker, SD, 16/10/1903, p. 6243).
If the House of Representatives returns a bill with the Senate’s
requested amendments made, the bill is proceeded with by the Senate. If the
requests were made in committee of the whole, as is normal, a motion is then
moved that the bill be read a third time. Further requests may be made at that
stage, if necessary by a recommittal of the bill (28/6/1996, J.443).
If the House of Representatives returns a bill to which the Senate has
requested amendments with the requested amendments not made or made with
modifications, the bill is considered in committee of the whole, and any of the
following motions may be moved:
(a) That the
request be pressed.
(b) That the
request be not pressed.
(c) That the
modifications be agreed to.
(d) That the
modifications be not agreed to.
(e) That
another modification of the original request be made.
(f) That the
request be not pressed, or agreed to as modified, subject to a request relating
to another clause or item, which the committee orders to be reconsidered, being
complied with. (SO 141(2)).
These procedures provide flexibility in any situation in which the
House does not completely comply with the requests of the Senate. Any of the
motions may be amended to alter the proposed course of action (11/6/1970,
J.181; 21/12/1988, J.1366; 21/6/1991, J.1284; 24/3/1994, J.1504; for the
substitution of amendments for requests, see the Health Legislation Amendment
Bill (No. 2) 1999, 30/3/1999, J.664-5; Dairy Produce Legislation Amendment
(Supplementary Assistance) Bill 2001, 28/6/2001, J.4512-4). The primary
question to be determined is whether or not the Senate should insist on its
requests as originally made.
There is no rule, as there is in relation to further amendments moved
after disagreement by the House of Representatives with the Senate’s initial
action, that further requests must be relevant to the matters in issue: section
53 of the Constitution allows new requests to be made at any stage, and this is
reflected in standing order 140(1), which provides
that a request may be made on consideration of any message from the House (see
Youth Allowance Consolidation Bill 1999, 22/6/2000, J.2859-71).
If the motion that a request be not pressed is negatived by a majority,
the committee has resolved to press the request accordingly (ruling of President Young, SD, 20/10/1981, p. 1412).
Similarly, if a motion that a request be pressed is negatived by a majority,
the committee has resolved not to press the request.
In 1993, in relation to the Customs Tariff
(Deficit Reduction) Bill 1993 and the Excise Tariff
(Deficit Reduction) Bill 1993, the question arose of the effect of the
negativing of either of the
first two questions by an equally divided
vote. It was ruled that, in that circumstance, the request is disposed of and
the bill proceeds without the request. The rationale of this ruling is that a
request requires the support of a majority to be made in the first instance,
and an equally divided vote on either of the questions indicates that there is
no longer a majority in favour of proceeding with the request (ruling of
President Sibraa, 21/10/1993, J.690-2; see also Procedure
Committee, Second Report of 1994, 10/11/1994, PP 223/1994, pp 4-28;
statements by Deputy President, è10/2/1997, J.1400-1; 24/6/1997, J.2192-3). If a request is disposed of
in this way, the third reading of the bill could be negatived by an equally
divided vote; in other words, a majority is required to pass the bill, and
senators who unsuccessfully voted to insist on a request in that circumstance
could vote to reject the bill as a consequence of the rejection of the Senate’s
request. (See Supplement)
The application of the principle underlying this ruling may be
complicated if the House of Representatives makes amendments to a bill in
substitution for requested amendments not agreed to by the House. In that
circumstance, normally a motion is moved that the Senate does not press its
request, but agrees to the amendment made by the House of Representatives in
place thereof. If this motion were to be negatived on an equally divided vote,
this would mean that the Senate would not press its request but would also
disagree with the amendment made by the House of Representatives in
substitution; in other words the bill would go forward in its original form (it
is clear that a motion to agree to a substitute amendment made by the House of
Representatives must be carried by a majority). This could well be an
unintended outcome.
The solution to
this problem is that a senator could ask for the
question to be divided under standing orders 84(3) and 144(2) and (7); such a request
is always granted, unless the question is incapable of division. The question
would then be put that the committee not press its request. If that question is
negatived by a majority, the request is pressed and the second part of the
question is redundant. If the question is negatived on an equally divided vote and the request is
thereby lost, senators can then consider their vote on the question that the
substitute amendment made by the House of Representatives be agreed to.
Senators who unsuccessfully voted to press the request could then vote for the
amendment suggested by the House of Representatives as a second-best choice. If
that second question is also negatived the Senate would have rejected the
amendment proposed by the House of Representatives in substitution for its own
request. Senators would then have the option of voting against the third
reading of the bill.
If a request is
not pressed because of an equally divided vote, a similar vote could also
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 remain in the Senate and would not pass.
There is also the potential complication of substitute amendments or
requests being proposed in the Senate on the return of the bills, which is
permitted by standing order 141. That
procedure, however, does not raise any similar difficulties of interpretation.
Any such amendments or requests would require a majority to be carried, subject
to what is said in Chapter 12, under Disagreement of House with Senate
amendments, in relation to amendments for the omission of clauses or items.
In unusual proceedings on the Wool Tax (Nos 1-5) Amendment Bills 1991,
the Senate at first resolved to further press certain requests, but
subsequently the message of the House of Representatives was reconsidered in
committee of the whole, by leave, this resolution was reversed and an amendment
made to each bill by the House of Representatives in substitution for the
requests was agreed to, after the government had given certain undertakings in
relation to the bills. This action was possible only because a message
informing the House of Representatives of the Senate’s resolution to press its
requests had not been sent before the matter was further considered (21/6/1991,
J.1284).
Although it is open to the Senate to negative the third reading of a
bill in which the House of Representatives has made amendments at the request
of the Senate, there is at least an implied understanding that, if the Senate
suggests amendments and the House of Representatives makes the amendments, the
bill as amended will be passed by the Senate (see ruling of President Baker,
SD, 11/10/1906, p. 6449).
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