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| Print this chapter (PDF 293KB) | < - Contents < - Chapter 5 : Chapter 7 - > |
The office of Speaker is an essential feature of the parliamentary system, and of all the Westminster parliamentary traditions the Speakership has proved to be the most durable. The office is an ancient one with its beginnings going back to the origins of the British Parliament. The first Speaker to be so designated was Sir Thomas Hungerford, appointed in 1377, who became the first in a continuing line of identifiable Speakers. In early times Speakers were variously described as ‘Parlour’ (mouth), ‘Prolocutor’ (chairman) and ‘Procurator’ (agent). Essentially each acted as mouthpiece or spokesman and hence ‘Speaker’ on behalf of the House in communicating its resolutions to the sovereign.
The office of Speaker was central to the centuries long battle for supremacy between Parliament and the monarchy. Historically the role of the Speaker has been an unenviable one. The chequered history of the Speakership shows that a number of Speakers died violent deaths by way of execution or murder while others were imprisoned, impeached or expelled from office. This record is reflected in the custom of a newly elected Speaker showing a token resistance on being escorted to the Chair. As Laundy states in The office of Speaker:
The custom had its origin in the genuine reluctance with which early Speakers accepted the office, for the rôle of spokesman for an emerging body of legislators bent on opposing the royal will was a dangerous occupation . . . Until discontinued by Speaker Onslow in 1728 it was the custom for the Speaker-elect to struggle with his proposer and seconder, resisting every inch of the way to the Chair with the result that he was literally dragged to it.1
Today in the House of Representatives the custom is maintained by the Speaker-elect being escorted to the Chair by his or her proposer and seconder.
The fascinating historical development of the Speakership has been well recorded by Laundy.2 For the purposes of this text it is sufficient to say that it is an office of great importance not only in its significant and onerous duties but particularly for what it is held to represent. The following comments by modern day Speakers serve to illustrate this:
. . . it may fairly be said that as an institution Parliament has proved its enduring worth through the test of time; secondly, Parliament’s past helps us to understand more fully its modern role and present-day organisation. To a large extent, the same holds true of the Speakership of the House of Commons, an office almost as old as Parliament itself.3
. . . the Speaker represents, in a very real sense, the right of freedom of speech in the Parliament, which was hard won from a monarchical Executive centuries ago. The Parliament must constantly be prepared to maintain its right of . . . freedom of speech, without fear or favour.4
By the time of the election of the first Speaker of the House of Representatives the Speakership of the House of Commons, fundamentally the same as we know it today, had already evolved. However the Speakership in Australia differs in some respects from current Westminster practice as its development during the 20th century followed different lines.
The Speaker today
The following statement of the House of Commons practice states succinctly the principal functions attaching to the office of Speaker which apply equally in the House of Representatives:
The Speaker . . . is the representative of the House itself in its powers, proceedings and dignity. The Speaker’s functions fall into three main categories. First, the Speaker is the spokesman or representative of the House in its relations with the Crown, the House of Lords and other authorities and persons outside Parliament. Second, the Speaker presides over the debates of the House . . . and enforces the observance of all rules for preserving order in its proceedings. Third, the Speaker has administrative responsibilities . . .5
The Speaker is a Member of the House and upon election to office becomes its principal officer.6 He or she is supported and assisted by the elected Deputy Speaker and Second Deputy Speaker who act as Speaker in the Speaker’s absence and relieve in the Chair as Deputy Speaker whenever requested to do so. The Speaker appoints a number of Members to the Speaker’s panel and the Speaker or Deputy Speaker may call on any one of them to take the Chair as Deputy Speaker.
The Speaker has the constant support and advice of the principal staff of the House, the Clerk of the House, the Deputy Clerk, the Clerks Assistant and the Serjeant-at-Arms, who in turn have the support of staff in the areas for which they are responsible.
The Speaker is commonly referred to as the Presiding Officer, his or her counterpart in the Senate being the President. While Speaker, a Member is entitled to be termed ‘Honourable’. In the Commonwealth order of precedence the Speaker is ranked directly after the Governor-General, State Governors, the Prime Minister, and a Premier within that Premier’s State. If the President of the Senate has served in office an equal or greater period of time, then the President also precedes the Speaker. If the Speaker has served for a longer period in office, then he or she precedes the President.7
In the Chamber and for ceremonial occasions the formal Speaker’s dress was traditionally a black Queen’s Counsel gown, full bottomed judge’s wig and lace accessories. Speakers from the non-Labor parties used to wear the full formal dress. However, Speaker Halverson, elected in 1996, wore the gown of a Queen’s Counsel but did not wear the wig, and subsequent Speakers have worn an academic gown only, without accessories. Speakers from the Australian Labor Party have not worn wig or gown.8
The role the Speaker plays by virtue of the office requires the position to be filled by a dedicated, senior and experienced parliamentarian. The qualities required in a Speaker have been described in the following ways:
It is parliamentary rather than legal experience which is the first requirement of a Speaker. He must have an intimate understanding of parliamentary life, of the problems of Members collectively and individually, of the moods and foibles of the House; an experience which can be acquired only through many years spent on the benches of the House itself. He must have a deep-seated reverence for the institution of Parliament, an understanding of what lies behind the outward ceremony and a faith in democratic government.9
A newspaper writer once commented . . . ‘The office of Speaker does not demand rare qualities. It demands common qualities in a rare degree’ . . . A good Speaker is not necessarily an extraordinary person, therefore; he is an ordinary person, but an ordinary person of the highest calibre.10
There has been no general tendency to appoint lawyers as Speakers in the House of Representatives and, since Federation, only four Speakers have been members of the legal profession, namely, Speakers Groom, Nairn, Snedden and Sinclair.11
Traditionally the Speaker in the House of Representatives has been a person of considerable parliamentary experience. Speakers have mostly come from the back bench without ministerial or party leadership experience. Speakers who had had prior ministerial experience in the House of Representatives were Speakers Watt, Groom, Cameron, Snedden and Sinclair. Due to the exceptional circumstances created by World War II Speaker Rosevear continued his duties as Controller of Leather and Footwear following his election as Speaker in 1943, and was Chairman of the Post-War Planning Committee of Leather and Footwear Industries between 1944 and 1945. These were not Cabinet appointments. Speaker Snedden had previously been a Minister, Leader of the House and Leader of the Opposition, experience he regarded as important in occupying the Speakership.12 Speaker Makin became a Minister nine years after he ceased to be Speaker in 1932 and Speaker Scholes became a Minister in 1983, some seven years after ceasing to be Speaker. Speaker Sinclair had previously been a Minister, a party leader and Leader of the House. Speaker Martin had previously been a Parliamentary Secretary. Speakers Salmon, McDonald, Bell, Scholes, Jenkins, Child and McLeay previously held the office of Chairman of Committees (Deputy Speaker).
One of the hallmarks of good Speakership is the requirement for a high degree of impartiality in the execution of the duties of the office. This important characteristic of office has been developed over the last two centuries to a point where in the House of Commons the Speaker abandons all party loyalties and is required to be impartial on all party issues both inside and outside the House. In concert with this requirement the principle has been well established that the Speaker continues in office until ceasing to be a Member of the House. According to May:
Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognized. He takes no part in debate either in the House or in committee. He votes only when the voices are equal, and then only in accordance with rules which preclude an expression of opinion upon the merits of a question.13
Practice in the House of Representatives has been to change the Speaker with a change of government. This provides a Speaker who is politically affiliated but who is required to be impartial in the Chair, rather than a Speaker who is both independent and seen to be independent. Historically, the Speaker has not been required to sever his or her connection with the governing party. Speakers have attended party meetings and have not, of necessity, refrained from election campaigning. As a rule, however, the Speaker does not participate in the actual debating and law-making processes of the House (but see p. 176).
Notwithstanding the foregoing and the fact that the Speakership has long been regarded as a political appointment, Australian Speakers have striven to discharge their duties with impartiality. The degree of impartiality achieved depends on the occupant but, as a rule, Speakers have been sufficiently detached from government activity to ensure what can be justly claimed to be a high degree of impartiality in the Chair.
During his term in office (1976–83) Speaker Snedden advocated the adoption in Australia of conventions applying to the Speakership in the House of Commons. On the first sitting day of the 33rd Parliament, when there had been a change of Government and after a new Speaker had been elected, in informing the House of his decision to resign as a Member, Sir Billy noted that as Speaker he had endeavoured to apply ‘such of the features of the conventions as were consistent with reality’, that he had rarely attended party meetings and that he had confined his attendance to occasions when major issues of principle were to be discussed. He went on to say that, consistent with House of Commons practice, he would resign as a Member forthwith.14
The Speaker must show impartiality in the Chamber above all else. A Speaker should give a completely objective interpretation of standing orders and precedents, and should give the same reprimand for the same offence whether the Member is of the Government or the Opposition.
Experience has shown that the Speaker uses his or her discretion in such a manner as to ensure adequate opportunities for all sections to participate in the deliberations of the House. As a rule Speakers make themselves freely available outside the Chamber to give advice to or discuss matters with Members. Members are entitled to expect that, even though politically affiliated, the Speaker will carry out his or her functions impartially. Likewise a Speaker is entitled to expect support from all Members regardless of their party.
The Speaker embodies the dignity of the nation’s representative assembly. The office is above the individual and commands respect. The degree of respect depends to some extent on the occupant but it is fair to say that the office, despite isolated incidents, has been shown to be respected on both sides of the House.
In recognition of the need to show respect for the office, certain conventions are observed in the practices and procedures of the House:
(See also Chapter on ‘Control and conduct of debate’).
It is unquestionably of great importance that, as a contribution towards upholding the impartiality of the office, the House chooses a candidate who has the qualities necessary for a good Speaker.
In both the House of Commons and the House of Representatives the Speaker is elected by vote of the House and must be re-elected after each general election. However, the distinction between the two systems is that on the meeting of a new Parliament, if the previous Speaker is still in the House of Commons and available, there seems to be no doubt that he or she will be re-elected under what is known as the continuity principle, regardless of political majorities, until he or she resigns or retires (usually during the Parliament).
The reasons for the Australian practice of changing the Speaker with a change of government are in part historical and partly electoral and political. The comparatively small size of the House of Representatives means that any one seat may be vital in determining a governing majority in the House.15
In the early years after Federation, and in other special circumstances, the situation was sometimes different. On 9 May 1901 Mr Frederick Holder, formerly Premier of South Australia, was unanimously elected as the first Speaker of the House of Representatives. Mr Holder was the only candidate for the Speakership at that time and on the two subsequent occasions he was re-elected as Speaker.16 Speaker Holder remained in office until his death on 23 July 1909. During the period of his Speakership, there were six changes of Prime Minister and five changes in the governing party.
At the general elections held on 31 May 1913 the Cook Liberal Government was elected to office. Speaker McDonald had been Speaker in the previous Fisher Labor Government and Prime Minister Cook invited him to remain as Speaker. Filling the Speaker’s position was significant for both parties due to the almost equal numbers in the House. Mr McDonald declined17 and, when the 5th Parliament met on 9 July 1913, Mr Johnson, a candidate from the government party, was elected Speaker.18 Mr McDonald returned to office following the election of 5 September 1914 which had resulted in a change of Government.19
From 1909 to 1941, with the exception of a short period, the Speaker was a member of the governing party, a change in the Government bringing a change in the Speaker. The exception was Speaker McDonald, during the period November 1916 to March 1917, who remained in office until the House was dissolved after a group, led by Mr Hughes, broke away from the governing party to form a coalition Government with those who had been in opposition. Speaker Watt who was elected Speaker in 1923, was not a member of the governing coalition parties, but was a member of a party which supported the Government and was the governing parties’ nominee for the position of Speaker.20
On 20 November 1940 Mr Nairn was elected, unopposed, as Speaker21 during the term of the Menzies United Australia Party–Country Party coalition Government. On 8 October 1941 Prime Minister Curtin informed the House of the formation of a new Australian Labor Party Government22 but Speaker Nairn remained in office until he resigned on 21 June 1943. On 22 June 1943 Mr John Rosevear, a member of the governing Labor Party, was elected Speaker, unopposed.23 Since then the Speaker has always been a member of the governing party or parties.
On 11 November 1975 the Governor-General withdrew the commission of Prime Minister Whitlam (Australian Labor Party) and commissioned Leader of the Opposition Fraser (Liberal–Country Party coalition) to form a ‘caretaker’ Government. Speaker Scholes continued in the Chair for the remainder of the sitting under the new Government,24 and remained as ‘deemed’ Presiding Officer, under the Presiding Officers Act, until Speaker Snedden, who was a member of the governing coalition parties, was elected when the next Parliament met on 17 February 1976.25
Speaker John (later Sir John) McLeay (1956–1966) holds the record term of office of ten years.
The Constitution expressly provides that the House shall, before proceeding to the despatch of any other business, choose a Member to be the Speaker of the House, who ‘shall cease to hold his office if he ceases to be a Member’.26 The procedure for electing the Speaker is laid down in detail in the standing orders.27
The election is conducted by the Clerk acting as chair.28A prospective Speaker is proposed by a Member, who is traditionally a private Member of the government party or parties, moving that the Member proposed ‘do take the Chair of this House as Speaker’. It is not in order for a proposer or seconder to speak in favour of a nominee at this stage.29 The motion is required to be seconded, again traditionally by a private Member, and then the Member nominated, who must be present, is required to inform the House whether he or she accepts the nomination.30
After each proposal the Clerk asks if there is any further proposal. If there are no further proposals, the Clerk informs the House that the time for proposals has expired and no further nominations may be made. If a nominee is unopposed, the Clerk immediately, without putting the question, declares the Member so proposed and seconded to have been elected. The Speaker-elect is then conducted to the Chair by the proposer and seconder.
If there is more than one nomination, Members may speak on the election, but debate must be relevant to the election. No Member may speak for more than five minutes but there is no limitation on the length of the debate. At any time during the debate a Minister may move without notice ‘That the question be now put’. The question on the closure is put immediately and must be resolved without amendment or debate.31 If on division the numbers are equal, the question is negatived and debate may continue.
After debate concludes, the division bells are rung for four minutes and the House proceeds to a ballot whereby Members write on ballot papers the name of the nominee for whom they wish to vote. The votes are counted by the Clerks at the Table and, if there are only two nominees, the one with the greater number of votes is declared by the Clerk to have been elected.32
Since the ballot procedure was introduced in 1937 there has been no instance of there being more than two nominees. Ballots continue if there are more than two nominees and no nominee has a majority of votes. In this case the name of the Member with the smallest number of votes is excluded and a fresh ballot taken. This process continues until a nominee has the required majority. Procedures are provided to meet the situation when, by reason of an equality of votes, a ballot is inconclusive. A nominee may, between ballots, withdraw his or her name from the election which then proceeds as if he or she had not been nominated. If a withdrawal leaves only one nominee, that person is immediately declared elected.
The Clerk’s duties during the election are to deal only with what might be described as the ‘mechanical’ aspects. The standing orders include the obligation to draw attention to the fact that a Member’s speech time has expired and to put the question if the closure is moved. The Clerk calls on a Member to speak using the name of the Member’s electorate, for example, ‘the honourable Member for . . .’. There is no instance of the Clerk having intervened in debate on the ground of irrelevancy. However the Clerk has been called on to rule on a point of order that a Member’s remarks were not relevant,33 and has drawn attention to the correct procedure after a Member had finished speaking immediately following his nomination of a candidate.34 Such matters place the Clerk in a difficult position.
It is considered that the Clerk would be obliged to accept a motion for some relevant purpose, and should put a question and declare what, in the Clerk’s opinion, the result was. A motion concerning an unrelated matter (including a motion to suspend standing orders) could not be considered. It is doubtful if the Clerk has the power to name a Member. For instance, the Clerk would probably have a duty to ask for the withdrawal of an unduly offensive expression but, if the request were denied by the Member, any further action would be a matter for the House after the election of a Speaker.
Some questions as to the role of the Clerk remain undetermined but in the case of grave disorder the Clerk would probably have to appeal to the House to act to preserve order and its own dignity. If the disorder were to continue, the Clerk may have no alternative but to suspend the sitting for a period.
On 27 July 1909 the Clerk announced to the House that Speaker Holder had died at Parliament House on 23 July. Prime Minister Deakin moved a condolence motion which was put by the Clerk, by direction of the House. The Clerk then, again by direction of the House, put the question for the adjournment of the House, proposed by the Prime Minister.35
The House met the next day for the election of a new Speaker. Four candidates were proposed, but one of them declined. Debate continued on the proposals until a Member moved that the debate be adjourned. The House divided and the motion was negatived 36 votes to 32.36 The debate continued until another Member moved that the debate be adjourned. The House divided and the result of the division was ‘Ayes’ 31, ‘Noes’ 31:
And the numbers being equal the Clerk stated that he would not take the responsibility of stopping the debate, and therefore gave a casting vote with the ‘Noes’—
And a point of order being raised that the Clerk could not vote, the Clerk, as Chairman, ruled that if he had not a casting vote as Chairman, nevertheless the motion for adjournment, not having received a majority of votes, had not been agreed to.37
In explanation the Clerk said that he was acting under the authority of the standing order which, prior to the election of the Speaker, enabled the Clerk to act as chair of the House.38 The important point was that the motion had not been carried and it was with hindsight unnecessary for the Clerk to have purported to give a casting vote which clearly he did not have. The debate continued and Speaker Salmon was eventually elected by 37 votes to 29.39 During the adjournment debate the Prime Minister on behalf of all Members thanked the Clerk for ‘the able manner in which he discharged his duties under extremely trying conditions, which it was impossible for him to foresee, and prepare for’.40
On the next day a Member moved as a matter of privilege that the Votes and Proceedings of the House of Representatives, page 62, dated 28 July 1909, be amended by the omission of the entries quoted above.41 The motion was debated for two hours and most speakers acknowledged that the Clerk had been placed in an extremely difficult situation.42 The motion was negatived, on division, 32 votes to 20.43
In 1934, while the motion that Mr Bell take the Chair of the House as Speaker was being debated,44 a Member moved the closure of the Member addressing the House (Mr Gander). The Clerk ruled that the motion was in order, as during the election of Speaker the House was operating under its standing orders. The Clerk put the question on the closure and a division being called for, the bells were rung. When the Clerk appointed tellers, a Member objected that he had no authority to order a division and appoint tellers. Mr Gander then nominated himself for the position of Speaker. The tellers for the ‘Noes’ refused to act and so the Clerk immediately declared the question on the closure of the Member resolved in the affirmative. As Mr Bell was the only Member proposed, he was then conducted to the Chair by his proposer and seconder without question being put. Mr Gander also approached the Chair but despite interruption and interjection Mr Bell was able to express his acknowledgments and accept congratulations.45 The present standing orders provide that the closure in this situation can only be moved by a Minister,46 and it has been successfully moved on several occasions.47
On 15 February 1956 a ballot being held to decide between two candidates for the Speakership, a Member said:
Mr Clerk, I would like a ruling. Would it be in order to nominate scrutineers while the ballot is in progress. I think each candidate should have a scrutineer.
The Clerk, in effect, gave a ruling by saying ‘There is no provision in the standing orders for the appointment of scrutineers’.48
In 1995 the Procedure Committee recommended that the Member with the longest continuous service (not being a Minister, Assistant Minister, Parliamentary Secretary, party leader or deputy leader, or a party whip) take the Chair during the election of the Speaker, in place of the Clerk, but the House did not adopt this recommendation.49
Following his or her election, and having been conducted to the Chair, the Speaker thanks the House for the honour it has conferred.50 The Speaker then takes the Chair, and the Mace, which prior to this time has been placed under the Table, is placed in the brackets on the Table. The Prime Minister, the Leader of the Opposition, other party leaders (where appropriate) and other Members then formally congratulate the Speaker. A Minister, usually the Prime Minister, informs the House of the time at which the Governor-General will receive the Speaker and the sitting of the House is suspended until that time when the Speaker, accompanied by other Members, proceeds to meet the Governor-General. On return to the House the Speaker reports to the House that he or she has presented himself or herself to the Governor-General and received the Governor-General’s congratulations on election to the office. In the event of the Governor-General being absent from Australia or unable to attend the Parliament, the Speaker presents himself or herself to the Administrator.51
In 1909 the newly elected Speaker did not immediately present himself to the Governor-General. The Prime Minister informed the House that the Governor-General would fix a time for receiving the Speaker.52 In 1946 the newly elected Speaker did not suspend the sitting but left the Chamber to present himself to the Governor-General immediately.53 In 1934 Speaker Bell ruled that no business could be transacted until the Speaker had been presented to the Governor-General.54
The Speaker’s powers, functions and duties may be categorised as constitutional, traditional and ceremonial, statutory, procedural and administrative. In addition the Speaker has certain ex officio functions.
As a general point of principle the Speaker’s authority is that which is derived from the House, and the foremost duty is to the House and its Members in upholding its dignity and protecting its rights and privileges. Accordingly, the authority of the House and the Speaker have been described as indivisible. The Speaker acts as the House might direct,55 being the servant not the master. Just as the House elects a Speaker it may likewise vote a Speaker out of office.56
Consistent with the view that the Speaker is answerable only to the House, the Speaker has declined an invitation to make a submission to the Senate Committee of Privileges to which the Senate had referred issues arising from joint meetings of the Houses in October 2003.57
As well as providing for the election of the Speaker, the Constitution prescribes certain powers and duties exercisable by the Speaker:58
The Constitution also makes provision for the procedure to be followed in the event of a vacancy in the office of Speaker and in the absence of the Speaker63 (see p. 180).
The most traditional of the Speaker’s duties is as the sole representative of the House in its relations with the Crown’s representative, the Governor-General. The Speaker is likewise the House’s representative in communications with the Senate and outside persons in the transmission and receipt of messages, documents or addresses.
In the House of Commons, the Speaker elect is not considered to be fully in office until the royal approbation has been received.64 In the House of Representatives, once the Speaker is elected at the beginning of a Parliament, he or she is required by standing orders, before business is proceeded with, to present himself or herself to the Governor-General in order to inform the Governor-General that he or she is the choice of the House as its Speaker.65 However, since 1904 when the 2nd Parliament met, the Speaker has not been required to seek the Governor-General’s approval; the presentation is merely a courtesy. Likewise on presentation to the Governor-General the Speaker is not required to petition for the continuance of the privileges of the House as in the United Kingdom,66 there being specific constitutional and legislative provisions dealing with the powers, privileges and immunities of the House.67
On the first sitting day of a new Parliament or a new session, the Governor-General summons Members of the House to hear the opening speech.68 This summons is traditionally transmitted to the House by the Usher of the Black Rod. Upon receipt of the message, the Speaker calls on Members to accompany him or her and preceded by the Serjeant-at-Arms bearing the Mace,69 accompanied by the Clerk, the Deputy Clerk and a Clerk Assistant, and followed by the party leaders and Members, proceeds to the appointed venue (traditionally the Senate Chamber).70 The Speaker is invited by the Governor-General to be seated. On conclusion of the Governor-General’s speech, the Speaker is formally presented with a copy of the speech by the Governor-General’s Official Secretary. The Speaker, in procession, then returns to the House of Representatives Chamber but, before the Speaker reports the Governor-General’s speech to the House, it is necessary for the House to transact some formal business,71 usually the introduction of a bill. This bill is known as the ‘formal’ bill or ‘privilege’ bill. Its presentation is taken to express the House’s traditional right to conduct its own business without reference to the immediate cause of summons. The Prime Minister may also announce the Ministry at this time.
Later on during the sitting period, when the Address in Reply to the Governor-General’s speech72 is to be presented to the Governor-General, the Speaker suspends the sitting of the House and, accompanied by the Serjeant-at-Arms bearing the Mace, the Clerk, the Deputy Clerk and Members of the House, is driven to Government House. The Address in Reply is presented to the Governor-General and, on return to the House, the Speaker reports the Governor-General’s reply to the Address.73
At the commencement of each sitting day the Serjeant-at-Arms, bearing the Mace on his or her right shoulder, precedes the Speaker into the Chamber and announces the Speaker to the House. As the Speaker takes the Chair, the Serjeant-at-Arms places the Mace on the Table. The Mace remains in the Chamber during any meal breaks and other shorter suspensions of the sitting, and is carried out of the Chamber by the Serjeant-at-Arms when the House adjourns. During the times when the Mace was not used, the Serjeant-at-Arms continued to precede the Speaker into the Chamber and announced him, and preceded him out of the Chamber on adjournment.
In the absence of the Speaker, the Serjeant-at-Arms, preceded by the Speaker’s attendant, carries the Mace from the Speaker’s suite to the Chamber ‘cradled’ in the left arm. The Serjeant-at-Arms enters the Chamber through the back door to the left of the Speaker’s Chair and walks past the opposition benches to the foot of the Table. The Clerk then announces the unavoidable absence of the Speaker, and the Deputy Speaker (or in his or her absence the Second Deputy Speaker) as Acting Speaker takes the Chair.74 As the Acting Speaker takes the Chair, the Serjeant-at-Arms places the Mace in its brackets on the Table.75
The Speaker on taking the Chair reads the Prayers laid down in the standing orders, thereby commencing the day’s proceedings.76
In addition to constitutional functions the Speaker has specific functions and duties laid down in a number of Commonwealth Acts, some of the functions being exercised in an indirect or secondary manner. Acts in which the Speaker is given particular responsibilities or a particular role include the Commonwealth Electoral Act, the Parliamentary Allowances Act, the Parliamentary Papers Act, the Parliamentary Privileges Act, the Parliamentary Precincts Act, the Parliamentary Proceedings Broadcasting Act and the Parliamentary Service Act.
Any question regarding the qualifications of a Member of the House of Representatives, or a vacancy in the House, may be referred by the House to the Court of Disputed Returns.7 The Speaker is responsible for sending to the court a statement of the question the House wishes to have determined and any associated documents which the House possesses relating to the question.78
The Auditor-General Act requires the Auditor-General to cause a copy of reports prepared under the Act to be presented to each House of the Parliament.79 The reports are forwarded to the Speaker for presentation to the House. This is illustrative of the position of the Auditor-General as an officer responsible to Parliament, rather than to Government.
If, in an action concerning a publication, the Speaker or the Deputy Speaker (or the Clerk of the House) certifies that a document or evidence has been published under the authority of section 2 of the Parliamentary Papers Act, the court or judge must stay the action or prosecution.80 Certificates given by the Speaker under section 17 of the Parliamentary Privileges Act in respect of certain matters relating to proceedings, are taken as evidence of these matters.
The Speaker is by statute a member of the Joint Committee on the Broadcasting of Parliamentary Proceedings81 which is appointed at the beginning of each Parliament. Any Member of the House of Representatives who is appointed to the committee, except the Speaker, may resign his or her seat on the committee by writing to the Speaker.82The Speaker has been elected chairman of the committee in all Parliaments except for the initial election in 1946.
The Speaker also has statutory responsibilities in connection with the administration of Parliament, and these are described at pages 177 to 179. The responsibilities of the Speaker in so far as electoral matters are concerned are described in detail in the Chapter on ‘Elections and the electoral system’.
The sources of procedural authority are described at pages 185 to 187.
The Speaker presides over the debates of the House and ensures that they are conducted according to the formal procedures, but does not normally participate in debates (but see p. 176).
The duties performed in the Chair are probably the Speaker’s most important and onerous. One of the duties is to ensure that the rules of parliamentary procedure as embodied in the standing orders and practice are accurately and correctly interpreted and applied. The Speaker interprets the standing orders, deals with points of order when they are raised and gives rulings when called upon to do so (see p. 187). He or she calls upon Members wishing to speak. The standing orders provide a graduated code of disciplinary powers to enable the Speaker to maintain order. These powers are progressive in their severity and allow the Speaker to deal with various breaches of order in the most appropriate manner. The Speaker does not vote in the House except in the event of the numbers being equal, in which case he or she has a casting vote (see p. 182). The Speaker may make statements or announcements to the House when necessary.83
It is the Speaker’s duty to call the House together following an adjournment by resolution to a date and hour to be fixed.
At the commencement of each day’s sitting, the Speaker, being satisfied that a quorum is present, reads the Prayers set out in the standing orders. Having read Prayers, the Speaker then calls the Clerk to call on the various items of business in the order set down in the standing or sessional orders in force at the time.
In addition to generally maintaining order in the Chamber and interpreting standing orders, the Speaker has specific powers and functions under the standing orders. These matters are described where appropriate elsewhere in the text.
It is considered that where the standing orders or practice of the House are silent on a matter, the Speaker may assume the authority to make a ruling or decision he or she thinks is appropriate. Naturally Members have the right to question such rulings or decisions, and the House itself is the ultimate authority in such matters.
The Speaker’s powers are augmented by a number of discretionary powers, which include:84
The Speaker’s power to call the House together, or to delay its meeting, after a period of adjournment is derived from the resolution of the House agreed to prior to the adjournment of the House.85 The motion traditionally makes provision for the Speaker to fix or to alter the date and hour of the next meeting. Standing order 30(b) also permits the Speaker, when the House is not sitting, to set an alternative day or hour for the next meeting. However, it is the invariable practice for the Speaker not to act on his or her own initiative in this respect, but to await a request from the Government. If the House has adjourned to a date and hour to be fixed, a Gazette notice is usually published when the day of meeting is determined, indicating the date and hour of meeting.86
If the Speaker is absent from Australia when the Government requests that the House be reconvened, and the adjournment resolution has not empowered the Deputy Speaker to act on behalf of the Speaker, the Clerk informs the Speaker of the Government’s request and seeks concurrence. If there was not time to seek the Speaker’s concurrence, the Clerk would notify all Members and subsequently inform the Speaker of the action taken.
Normally the House can only be adjourned by its own resolution and the motion for the adjournment can only be moved by a Minister.87 However, the Speaker may adjourn the House on his or her own initiative if there is no quorum or no quorum can be formed,88 if grave disorder arises in the House,89 or under the automatic adjournment procedures.90
The Speaker may suspend the sitting:
Subject to certain conditions the Speaker is authorised by resolutions of the House to permit access to evidence taken by, or documents of, committees, and resolutions of each House confer such authority on the Speaker and the President in respect of records of joint committees.100
It is unusual for a Speaker to participate in a debate. Although there is no standing order which prohibits such participation and there have been instances where this has happened, such action in the modern House would be regarded as out of character with the status and role of the Speaker unless the matter under debate was of a peculiarly parliamentary nature falling within the responsibilities of the Speaker.
In the past, when the consideration in detail stage of bills was taken in the committee of the whole, Speakers occasionally spoke on bills in the committee stage. On 4 June 1942 Speaker Nairn participated in debate in committee on the Australian Broadcasting Bill and moved an amendment.101 On 1 October 1947 Speaker Rosevear participated in debate in committee on the 1947–48 estimates.102
Speaker Cameron took a different view of the Speaker’s entitlement to participate in debate when he stated on 4 March 1953:
As soon as a bill is put before a committee of the whole House, it is open to any honourable member, the Speaker alone excepted, in my view, to attend and put before the committee any amendment that he wishes.103
There have been cases when the Speaker has participated in debate when the matter before the House concerned the Parliament or the Speaker’s administration.104 On 29 March 1944 the Deputy Speaker ruled that Speaker Rosevear was in order in requesting the Chairman of Committees to take the Chair to enable Speaker Rosevear to address the House from the floor. The matter before the House was a motion to discharge Members from attendance on the Joint Committee on Social Security. Speaker Rosevear spoke in connection with the Speaker’s administration. In making this ruling the Deputy Speaker stated:
. . . there are precedents in this House for the Speaker taking his place on the floor when the Estimates of Parliament are before honourable members.105
The Deputy Speaker also ruled that it was in order for Speaker Rosevear to address the House from the Table.106
Special circumstances applied in 1987 and 1988 when Speaker Child moved, and spoke to, the second readings of the Parliamentary Privileges Bill and the Public Service (Parliamentary Departments) Bill. She had sponsored the bills jointly with the President of the Senate. The Speaker spoke from the Table of the House, on the government side.107 Later Speakers have introduced bills relating to the parliamentary service, and moved and spoken (from the Chair) to the second reading.108 In the case of the Parliamentary Service Bill 1999 the Speaker also moved amendments to the bill.109
When the Speaker participated in debate in the former committee of the whole he was called and addressed as the ‘honourable Member for . . .’, not as ‘Mr Speaker’.110 Following the introduction of estimates committees in 1979, the Speaker played an active part in the consideration of the estimates for the Parliament. The chairman of the 1979 estimates committee which considered the appropriation for Parliament took the view ‘that Mr Speaker represents the ministerial position for Parliament’.111 Questions by Members regarding the estimates were put to the Speaker and answered by him. He was called and addressed as ‘Mr Speaker’ in these circumstances. The Speaker has never spoken in the Main Committee.
In the House of Commons the Speaker is entitled to speak in the committee of the whole but no Speaker has exercised the right since 1870 and for all practical purposes such action may be regarded as obsolete.112
The Speaker frequently makes statements to the House113 and may intervene in debate in special circumstances. For example, Speaker Snedden spoke from the Chair on a condolence motion following the death of a former Prime Minister, Sir Robert Menzies.114 It is usual for the Speaker to take part in valedictory remarks at the end of each year.
Standing order 103 provides that Members may direct questions without notice to the Speaker on any matter of administration for which he or she is responsible. There are also arrangements which permit, in effect, questions in writing to the Speaker. (See Chapter on ‘Questions’).
Section 6 of the Parliamentary Precincts Act 1988 provides that the parliamentary precincts are under the control and management of the Presiding Officers. It further provides that they may, subject to any order of either House, take any action they consider necessary for the control and management of the precincts. In respect of the ministerial wing these powers are subject to any limitations and conditions agreed between the Presiding Officers and a particular Minister. Prior to the enactment of this provision, however, the authority of the Presiding Officers had become well established in practice. The Speaker exercises singular authority over the House of Representatives area in Parliament House. In 1901 Speaker Holder said:
Before the order of the day is called on, I have to inform the House that I have made a careful examination of that part of the building which is at the disposal of Members of the House of Representatives. I may mention at once that, in my opinion, the accommodation for members, officers, and the press is extremely limited . . . Honourable members may rest assured that I shall do all in my power to study their convenience and comfort in every possible way, and I am sure that the Right Honourable the Prime Minister will assist me in that direction.115
In 1931 Speaker Makin ruled out of order an amendment relating to his action in excluding a journalist from the press gallery on the ground that it infringed the authority vested in the Speaker.116
On 24 October 1919 Speaker Johnson in a statement to the House noted that it appeared the Economies Royal Commission, appointed by Governor-General’s warrant, intended to investigate certain parliamentary services. The Votes and Proceedings record Speaker Johnson informing the House:
As this Royal Commission had no authority from this Parliament, so far as he was aware, to interfere in any way with the various services of Parliament, it was his duty to call the attention of honourable Members to this proposed serious encroachment on the rights and privileges of Parliament by the appointment of a tribunal unauthorised by Parliament to inquire into matters over which the Legislature had absolute and sole control. . . . . He did not propose, unless he was so directed by the House, whose mouth-piece he was, to sanction any inquiry of the kind which was not authorized by Parliament itself.117
On 27 August 1952 Speaker Cameron informed the House that it appeared that a Member had engaged in a campaign of deliberate opposition to the Chair and the authority which he exercised in Parliament House. The Member later in a statement to the House assured Mr Speaker that at no time had he any thought of such a campaign. He expressed his regret and made an unqualified withdrawal of the text of telegrams he had sent to Mr Speaker and certain newspapers concerning the removal of the title Parliamentary Under-Secretary from the door of his office.118 Speaker Cameron said:
I want to make it perfectly clear that this building is public property, and that the Speaker of the House of Representatives is the custodian—the only custodian—of that property. He is the only authority who has the right, in this part of the building, to allot a room, to arrange for furniture, and to command the staff as to what they shall or shall not do.119
In 1968 Prime Minister Gorton supported this view:
The Houses of Parliament, their arrangements, their furnishings and what is placed in them are under the control of the Presiding Officers and are not a field, I think, in which the Executive as such should seek to intrude.120
In 1980, during a strike by journalists, Speaker Snedden was asked whether steps had been taken to see that no ‘unauthorised person’ was using the facilities of the Press Gallery. Speaker Snedden replied that a resolution had been passed by the Federal Parliamentary Press Gallery asking, inter alia, that the passes of two named persons be withdrawn and that no new members be admitted without consultation with the Gallery Committee. The Speaker stated that the Presiding Officers retained, absolutely and solely, the right to determine admission to the Gallery, and that although he had and would, in normal circumstances, consult with the Gallery Committee, under no circumstances would he take action to prevent any media representative whom he judged to be qualified and competent to report proceedings from coming to the Gallery to report them.121
For many purposes the Speaker is in effect ‘Minister’ for the Department of the House of Representatives and jointly with the President of the Senate is ‘Minister’ for the Department of Parliamentary Services. Certain Acts refer to the Minister administering the department concerned. For such purposes the Speaker is considered to be the Minister administering the Department of the House of Representatives.
The powers and functions of a Presiding Officer under the Parliamentary Service Act 1999 parallel those of a Minister in relation to an executive government department under the Public Service Act 1999. Under the provisions of the Parliamentary Service Act the Presiding Officers are no longer involved in everyday administrative matters, which are the responsibility of the Clerks of the two Houses, and the departmental secretary in relation to the joint department. For the purposes of the Financial Management and Accountability Act ‘Minister’ is defined to include a Presiding Officer. The Act authorises the Presiding Officers to approve expenditure under an appropriation for a parliamentary department.122
The Parliamentary Service Act and the administration and staff of the Department of the House of Representatives are discussed in more detail at p. 204.
The Speaker (or the Speaker and the President), may respond to committee recommendations concerning matters within the Speaker’s (Presiding Officers’) responsibility.123
It is a recognised responsibility of the Speaker to ensure that Members are provided with the necessary facilities and resources within Parliament House for the proper execution of their duties. The departmental heads of the parliamentary departments are responsible for the services provided by their departments and administrative actions taken by them, all public expenditure and, where applicable, accountability for revenue collected. However, the Presiding Officers have ultimate responsibility in so far as matters of policy are concerned, and sensitive matters—where, for instance, a Member feels that a service has not been provided or has been provided inadequately—may be referred to the Speaker. Some government departments also provide services to Members, principally electorate office and travel entitlements.
Besides the statutory appointment to the Joint Committee on the Broadcasting of Parliamentary Proceedings, of which the Speaker is customarily appointed chair, the Speaker is, ex officio, a member of a number of other parliamentary committees.124 The Speaker is a member of the House Committee and the Library Committee, which are also appointed under standing orders.125 These two committees usually sit jointly with the corresponding committees of the Senate and the Speaker is normally chair of one of these joint committees and deputy chair of the other. In the 29th to the 35th Parliaments the Speaker was, by resolution of the House, a member and joint chair of the Joint Standing Committee on the New Parliament House. The Speaker, Deputy Speaker and Second Deputy Speaker can only be chosen to serve on a committee if they consent to do so, or if a standing or other order requires the appointment.126 Speaker Cameron agreed to be a member of the Select Committee on Hansard127 provided he was not a party nomination.
The Speaker is, ex officio, a member of the (non-parliamentary) Historic Memorials Committee. With the President of the Senate, the Speaker is joint president of the Commonwealth of Australia Branch of the Commonwealth Parliamentary Association (CPA), of the Australian Group of the Inter-Parliamentary Union (IPU) and of the Australian National Group of the Asia Pacific Parliamentary Forum.
At the first meeting of a newly elected House of Representatives, before the despatch of any other business, the House must choose a Member to be Speaker. The House must also choose a Speaker at any other time when the office becomes vacant.128
If the office of Speaker becomes vacant during a session, the Clerk reports the vacancy to the House at its next sitting and the House either at that time or on the next sitting day elects a new Speaker.129
If a vacancy occurs between two sessions, the Clerk reports the vacancy to the House when it returns either after hearing the Governor-General’s speech or after the declaration of the opening of the session.130 The House then elects a new Speaker.131 In all cases, until a Speaker has been elected, the Clerk acts as chair of the House132 and conducts the election of the Speaker.
A vacancy in the office of Speaker may occur for the following reasons:133
A Speaker who is resigning his or her seat as well as his or her office does so in writing to the Governor-General.134
Continuing authority for certain administrative actions of the Speaker is provided for in the Parliamentary Presiding Officers Act.135 When the office of Speaker becomes vacant due to resignation, the person who was Speaker is deemed to continue to be Speaker for the purposes of the exercise of any powers or functions of the Speaker under a law of the Commonwealth until a new Speaker is chosen. Again, when the House has been dissolved, the Speaker at the time of dissolution is deemed to continue as Speaker for the purpose of exercising statutory powers or functions until a Speaker is chosen by the House.
If the Speaker or the person deemed to be Speaker dies, or is unable through ill health to exercise any powers or functions under a law of the Commonwealth, or is absent from Australia, the Deputy Speaker is deemed to be Speaker, for the purposes of the exercise of any powers or functions of the Speaker under a law of the Commonwealth, until the House chooses a new Speaker or the absence or incapacity of the elected Speaker ends. This does not extend to the exercise of the Speaker’s constitutional functions as provision is made in the Constitution for the Governor-General to exercise these powers in the Speaker’s absence.136 If there is no Deputy Speaker, then the person who last held that office is deemed to continue as Deputy Speaker until a new Deputy Speaker is elected by the House, and such a person can be deemed to be the Speaker.
The Constitution provides that before or during any absence of the Speaker, the House may choose a Member to perform the Speaker’s duties in the Speaker’s absence.137 The House has therefore provided in its standing orders that when the House is informed by the Clerk of the absence of the Speaker, the Deputy Speaker, or if the Deputy Speaker is also absent the Second Deputy Speaker, shall be Acting Speaker.138 The Deputy Speaker (or Second Deputy Speaker) continues to act without any formal announcement on subsequent days. The Clerk normally informs the House, if the Speaker is absent through illness or parliamentary duties, immediately the House meets.
Before 1963 the relevant standing order specified that, unless the House otherwise ordered, the Clerk should inform the House of the Speaker’s absence and that the Chairman of Committees as Deputy Speaker should take the Chair from day to day to perform the duties and exercise the authority of the Speaker in relation to all proceedings of the House.139 This standing order was seen by the Standing Orders Committee in 1962 as imposing a restriction not possible under the Constitution,140 and the present standing order 18(a) authorises the Deputy Speaker, or if he or she is also absent the Second Deputy Speaker, to be Acting Speaker, performing the duties of Speaker without restriction.
Pursuant to this authority Acting Speakers have received commissions from the Governor-General to administer the oath or affirmation of allegiance to Members, announced the return to writs issued by the Speaker for a by-election and administered the oath of allegiance to the newly elected Members.141
If the Speaker and both the Deputy Speaker and the Second Deputy Speaker are absent, the Clerk informs the House and the House then either elects one of the Members present to perform the duties of Speaker or adjourns to the next sitting day.142 The Clerk acts as chair of the House until a Member is elected to perform the duties of Speaker. On 25 May 1921 the Clerk announced that both the Speaker (previously absent) and Deputy Speaker were absent and the House then elected one of its Members to act as Speaker during the Deputy Speaker’s absence.143
A Member chosen by the House as Acting Speaker, in accordance with section 36 of the Constitution (proceeding under standing order 18), has all the powers of the Speaker including constitutional powers and ex officio functions such as membership of committees.
Before the creation of the position of Second Deputy Speaker in 1994 the standing orders provided for the appointment by the House of another Member to be Acting Deputy Speaker during the Speaker’s continuing absence, while the Deputy Speaker was Acting Speaker.144 There have been occasions of lengthy acting appointments during absences of the Speaker due to illness or parliamentary duties overseas.145
The Speaker cannot vote in a division in the House unless the numbers are equal, and then he or she has a casting vote.146 The provision for a casting vote also applies to Members deputising for or acting in the position of Speaker (that is, Deputy Speaker or Second Deputy Speaker, or another Member as Acting Speaker).147 The provision for a casting vote does not apply to members of the Speaker’s panel in the Chair, unless specifically appointed by resolution of the House as Acting Speaker, as it has been considered that the standing orders providing for the nomination and duties of the members of the Speaker’s panel do not fulfil the requirements of s. 36 of the Constitution, which refers to the House choosing a Member to perform the duties of an absent Speaker.148
Any reasons stated by the Chair when exercising a casting vote are recorded in the Votes and Proceedings.149
The occasion has arisen in the House where there has been an equality of votes but the Speaker has not exercised a casting vote. On 19 March 1969 the House divided on an opposition motion without notice for the suspension of standing orders. There was an equality of votes cast (42), but, as the number of votes needed for the ‘Ayes’ to form the absolute majority was 63 (needed to carry a motion for the suspension of standing orders without notice), Speaker Aston did not exercise a casting vote as his vote would have had no effect on the result.150 On 30 November 2000 the votes were equal on a motion of dissent from a ruling by Speaker Andrew. The Speaker stated that the question had not been supported by a majority and, in the circumstances, he was not prepared to give a casting vote, but believed his ruling to be correct. He said that as the matter of the time for the ringing of the bells had been raised (complaint having been made that they had rung for one minute instead of four), there was the possibility of confusion, and under the standing order (now S.O. 132) he would put the question again.151
The decisions of successive Speakers in the House of Commons in giving a casting vote have not always been consistent but two main principles, and one subsidiary principle, have emerged:
There have been 21 occasions153 when the Speaker or Deputy Speaker has exercised a casting vote in a division in the House. These instances are outlined below.
On several occasions, the Speaker’s casting vote has decided the matter before the House:
There being an equality of votes, as shown by the division lists, it becomes necessary for me to give the casting vote. I take this opportunity of saying that, notwithstanding anything that has appeared in the press or elsewhere about the Speaker’s casting vote, I have not been approached in any way either by members of the House or the press outside or anybody else in regard to how my vote is to go, with the exception of one occasion when it was done on the floor of the House. In giving my casting vote on the amendment to the Address in Reply moved by the Leader of the Opposition, the Right Honourable Member for Wide Bay, without offering any opinion or comment upon the debate just concluded, I desire to point out certain facts. This is a Parliament met for the first time fresh from a general election. As the result of the election the Government in office at the time, finding itself in a minority in the House of Representatives and unable to carry on the business of the country, resigned. A new Government was formed which, on presenting a memorandum of its policy to the House, was met with a no-confidence amendment to the Address in Reply. The new Government has so far not been afforded an opportunity to submit any of its proposed legislative measures for the consideration and judgment of the House, whilst several honourable Members opposed to the Government have expressed the view that some of the proposed measures should be proceeded with. Guided by these and other public considerations, and supported by abundant authority, I give my vote with the Noes, and declare the amendment resolved in the negative.
In a ballot for the election of Deputy Speaker or Second Deputy Speaker, when there are only two candidates, with each receiving the same number of votes, the Speaker then exercises a casting vote.174 There is no instance of the Speaker exercising a casting vote in these circumstances.
In the days of the operation of the committee of the whole several Speakers exercised their right to vote in committee (for details see p. 222 of the second edition). The Speaker does not participate in Main Committee proceedings.
The operation of the House is governed by various rules and conventions which in turn are sources for the procedural authority exercised by the Speaker. There are three main sources of procedural authority:
In many ways the provisions of the Constitution and the standing orders reflect traditional parliamentary practice which applied in the House of Commons in the years before Federation, and which was also followed in various ways in Parliaments in the Australian colonies prior to Federation.
The Constitution contains a number of detailed provisions dealing with the actual operations of the House. Amongst the provisions are:
Acting under the power conferred by section 50 of the Constitution, the House has adopted comprehensive standing orders to govern the conduct of its business, and also to govern related matters such as the operation of committees and communication between the Houses. The standing orders are rules the House has adopted by resolution, and they are considered to have continuing, or standing, effect. They are thus binding at all stages, unless they are suspended (the standing orders themselves contain special provision for their suspension), or unless there is unanimous agreement—that is, leave—for something to be done which would otherwise be inconsistent with the standing orders.
The House adopted temporary standing orders in 1901 which were largely based on rules and standing orders followed in the colonial legislative assemblies. These temporary standing orders were amended from time to time until 1950, when permanent standing orders were adopted. In 1963 a major revision and renumbering was agreed to, and significant changes were subsequently made on a regular basis.
In November 2003 the Procedure Committee presented a report providing and recommending a completely revised set of standing orders for the House175—a revision initiated by an earlier recommendation by the committee that the standing orders be ‘restructured and rewritten to make them more logical, intelligible and readable’.176 In June 2004 the House resolved to adopt the revised standing orders, to come into effect on the first day of sitting of the 41st Parliament.177
The standing orders:
The House has often adopted sessional orders, which are temporary standing orders or temporary changes to the standing orders, in order, for example, to enable experimentation with a new procedure or arrangement before a permanent change is made to the standing orders.
See also ‘Motions relating to the standing orders’ in Chapter on ‘Motions’.
A number of practices and conventions are observed in the House which are not imposed either by the Constitution or by the standing orders, but which are traditional parliamentary rules, often also followed in other parliaments operating in the Westminster tradition. An example of such a convention is the sub judice convention. Another is the practice that a charge against a Member should only be made by means of a substantive motion which admits of a distinct vote of the House. Other practices have evolved locally, for example, the convention of alternating the call between Opposition and Government during debate and in Question Time.
The standing orders used to provide that in all cases not provided for in the standing orders or by sessional or other order or by practice of the House, resort shall be had to the practice of the United Kingdom House of Commons ‘in force for the time being, which shall be followed as far as it can be applied’.178 With the development of the House’s own body of practice, reference to House of Commons practice has become very rare, and this provision was omitted from the revised standing orders adopted in 2004.
Standing order 3(e) now provides that:
The Speaker (or other Member presiding) is responsible for ruling whenever any question arises as to the interpretation or application of a standing order and for deciding cases not otherwise provided for. In all cases the Speaker shall have regard to previous rulings of Speakers of the House and to established practices of the House.
A ruling is a decision or determination made by the Chair on a matter to do with the business or operation of the House. Usually a ruling will be given in response to a point of order (see below), when a Member queries or challenges in some way an aspect of proceedings or debate. In some circumstances, however, a ruling may be given without a point of order having been taken—for example, a Member may propose to move a motion or an amendment, and the Chair may intervene immediately of his or her own volition and rule the proposed motion or amendment out of order. The Speaker must preserve order in the Chamber to enable business to be conducted properly. In order to do this the Speaker must rule fairly on points of order and be very familiar with the standing orders and the practices of the House. The Speaker’s statements and rulings must be sufficiently clear and authoritative for Members to accept them.
The question sometimes arises as to whether rulings are ‘binding’ and, in a literal sense, the answer is ‘no’, but the question is more complex than it may appear. There have been many rulings given over the years which are consistent with one another, consistent with the standing orders and conventions of the House, and which are supported, implicitly or explicitly, by the House. Such rulings form part of the body of practice which continues to govern the operations of the House and rulings with that status are, in effect, regarded as binding, although even then Speakers are able to give rulings which take account of new factors or considerations. In this way rulings and interpretations may be developed and adapted over time. From time to time rulings may be given which are inconsistent with previous rulings and interpretations, and which may be made in circumstances which do not allow sufficient opportunity for reflection. Even though such rulings may go unchallenged at the time, it would be incorrect to say that they are binding on future occupants of the Chair.
The Speaker has stated that House of Representatives Practice is the authoritative source of precedent.179
The situation in the House of Representatives is in contrast with that in the United Kingdom House of Commons, where many rulings are given after the Speaker has been forewarned of the subject by a Member who may advise that he or she will take a point of order on it, and the Speaker thus has an opportunity to take account of any relevant precedents and of all the considerations involved.180 The situation is also different in the Senate where a President’s ruling which has not been dissented from is considered to have a standing equivalent to a resolution of the Senate.181
The Speaker may also make private rulings, that is, when not in the Chair. Such rulings may not be related to the actual proceedings in the House. This may occur for instance when a Member seeks the Speaker’s guidance on a point of procedure relating to future proceedings in the House. Private rulings in effect serve to clarify points of practice and procedure and have the same authority as rulings from the Chair and may be supplemented by rulings from the Chair.
The principal standing orders relating to points of order and Speaker’s rulings are standing orders 86 and 87 which state that:
In accordance with House of Commons practice a point of order must be raised immediately. It is not acceptable to raise points of order concerning proceedings earlier in the day or concerning proceedings of a previous day.
A Member has a right to make his or her point of order without interruption except by the Chair. However, there may be circumstances when a point of order on a point of order may be justified—for example, when points of order which are inordinately long, frivolous or of dubious validity, and when unparliamentary language is used. It would be expected that the Chair would normally intervene in these cases but a point of order on the point of order could be made. On occasion the Chair may hear further points of order before ruling, or grant other Members indulgence to speak to clarify a situation. However, there is no obligation on the Chair to exercise such discretion. The Chair may rule on a point of order as soon as he or she feels in a position to do so.182
The opportunity to raise a point of order should not be misused to deliberately disrupt proceedings or to respond to debate. If this is, or is anticipated to be, the case, or if the Speaker believes that he or she is aware of the issues, Speakers have cut short the point of order or refused to hear it until the Member interrupted by the point of order has finished speaking. Members have been disciplined by the Chair for raising spurious or frivolous points of order183 and for persisting with matters after the Chair has ruled.184
Standing order 87 provides that, if a Member dissents from a ruling of the Speaker, the objection or dissent must be declared at once. A Member moving a motion of dissent must submit the motion in writing. If the motion is seconded, the Speaker shall then propose the question to the House, and debate may proceed immediately.
Any motion of dissent must be moved at the time the ruling is made,185 and no amendment may be moved to the motion as a ruling must be either accepted without qualification or rejected.186 A Member cannot move dissent from a ruling which has just been supported by a vote of the House.187 Conversely, once a dissent from the Speaker’s ruling has been carried then the Chair cannot repeat the ruling until the House reverses its decision on the ruling.188
A dissent motion has lapsed for want of a seconder,189 and a dissent motion has been withdrawn by leave.190 A proposed dissent motion has been ruled out of order when it referred to a matter that had happened two days before.191 The Speaker has refused to accept a motion that a Member be heard and the Member has then attempted to move dissent, but the Speaker stated that there was nothing to dissent from.192 When two proposed matters of public importance have been submitted and the Speaker has selected one, it has been held that a motion of dissent was out of order as no ruling had been given.193 It is not in order to move dissent in relation to the allocation of the call, which is a matter for the Chair’s discretion.194 The Speaker has not accepted a motion of dissent when the question before the Chair was that ‘the question be now put’, as standing order 81 obliges the Chair to put that question immediately without amendment or debate.195 On one occasion a Speaker has declined to accept a motion that a Member moving a motion of dissent be not further heard,196 but on other occasions such motions have been accepted and agreed to.197
Table 6.1 Motions of Dissent From Rulings in The House 1901–2004
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There have been several occasions when the House has agreed to a motion dissenting from the Speaker’s ruling.198 Any dissent from the Speaker’s ruling is not necessarily interpreted as a censure of the Speaker.199 In speaking to a motion of dissent a Member may not make a personal reflection on the Speaker.200
In 1931 a motion of dissent was moved against a ruling given by Speaker Makin. During the debate on the motion, which was subsequently negatived, Speaker Makin participated and stated:
It has been the invariable rule, when a motion has been submitted inviting the House to disagree with Mr Speaker’s ruling, for the Speaker to reply from the Chair . . . I shall make my statement from the Chair . . .201
However, it has now become the established practice for the Chair not to participate during debate on a motion of dissent from a ruling except, for instance, to explain or clarify a procedural matter, as the question is in the hands of the House and for it to decide.
In 1962 a Member moved dissent from a ruling by the Deputy Speaker. The Speaker took the Chair and in the division on the motion of dissent the Deputy Speaker voted against the dissent, which was negatived.202 The Speaker ruled that it was in order for the Deputy Speaker to vote in the division.203 On another occasion, having been relieved in the Chair by the Speaker, a member of the Speaker’s panel whose ruling had been subject to dissent voted in favour of the dissent.204
A dissent motion may be moved in the Main Committee (see p. 200).
The procedure of dissenting from a ruling of the Speaker is not shared in the practice of the lower Houses of other major Westminster-style Parliaments, namely, the United Kingdom, Canada and India. Before the dissent provision was abolished in the Canadian House of Commons, Laundy stated:
In practice, the rule tends to encourage Members to challenge Speakers’ rulings, and when carried to extreme lengths . . . its use can seriously undermine the authority of the Chair and lead to a serious disruption of business. It is also open to criticism on the ground that a Speaker, in order to avoid the damage to his prestige and authority which the rejection of one of his rulings by the House would inevitably involve, might tend to rule as a matter of course in favour of the majority in order to ensure that his rulings will be sustained. Thus, whatever advantages may be claimed for such a rule, there can be no question that its disadvantages are of a very serious nature indeed.205
In 1986 the Procedure Committee recommended that the House should abolish the dissent procedure, but the recommendation was not adopted.206
Speakers have generally taken the view that, with the exception of determination of points of procedure between the two Houses, the obligation to interpret the Constitution does not rest with the Chair and that the only body fully entitled to do so is the High Court. Not even the House has the power finally to interpret the terms of the Constitution.207
The most frequent determination of points of procedure between the two Houses has occurred in relation to Senate amendments to bills or pressed requests for amendments, where the rights or responsibilities of the House were considered to be affected. Typically, the Speaker has directed the attention of the House to the constitutional question which the message transmitting the purported amendment or the pressed request has involved, and referred to the requirements of section 53 of the Constitution. The decision as to whether the House would receive and entertain the message has been left with the House. It is felt that the Speaker is not acting as an interpreter of the Constitution in these cases but acting as the custodian of the privileges of the House.208
In any matter which might involve or touch on the constitutional rights or powers of the House, the view has been taken that, other things being equal, the Speaker should not take decisions which could have the effect of limiting these rights or powers. On 10 June 1999 the Speaker was asked to rule against an amendment to the effect that a Member was not in breach of section 44(v) of the Constitution. It was argued that the amendment was unconstitutional and out of order because of the provisions of section 376 of the Commonwealth Electoral Act which allow reference of such matters to the Court of Disputed Returns. The Speaker allowed the amendment to stand, stating that the matter should be allowed to proceed because the House was master of its own destiny.209 On 13 October 1999 the Speaker was asked to rule on an amendment to the effect that a private Member be censured and ordered to produce a document believed to be in his possession and from which he had quoted. The Speaker was asked to rule the amendment out of order on the grounds that the House did not have the power to order a private Member to produce documents. The Speaker stated that it was not his intention to limit the power of the House to determine what could or could not be produced, that the House was master of its own destiny and that the matter could be put.210
In relation to the interpretation of the law, the Chair has ruled: