Chapter 12 - Legislation
Disagreement of House with Senate amendments
If the House of Representatives returns
to the Senate a bill which has originated in the House and on which the Senate
has made amendments, and the House:
(a)
disagrees to
amendments made by the Senate; or
(b)
agrees to amendments
made by the Senate with amendments,
the bill and the
House’s message are considered in committee of the whole, and the Senate may:
(c)
insist, or not
insist, on its amendments;
(d)
make further
amendments to the bill consequent upon the rejection of its amendments;
(e)
propose new
amendments as alternative to the amendments to which the House of
Representatives has disagreed;
(f)
agree to the House of
Representatives amendments on its own amendments, with or without amendment,
making consequential amendments to the bill if necessary;
(g)
disagree to those
amendments and insist on its own amendments which the House of Representatives
has amended; or
(h)
order the bill to be laid aside. (SO 132(2))
If the Senate
does not insist on its amendments, the House is advised accordingly and the
bill, as passed by the House, proceeds to the Governor-General. If the Senate
takes any of the other actions listed, other than ordering the bill to be laid
aside, the House is advised and asked to concur with the action taken by the
Senate.
This procedure
is also devised to ensure that the Senate has maximum freedom to seek agreement
with the House, while concentrating its attention on the matters of disagreement.
To determine whether the Senate insists
on its amendments, a motion may be moved in the committee of the whole that the
committee does not insist on the amendments, or that the committee insists on
the amendments. Normally the former motion is used; usually a minister in
charge of a government bill asks the committee not to insist on amendments to
which the government in the House has disagreed. If that motion is negatived by
a majority, the committee has resolved to insist upon the amendments, and
similarly if a motion that amendments be insisted on is negatived by a
majority, the resolution of the committee is not to insist on the amendments. If either motion is negatived by an
equally divided vote, however, the amendments
are not insisted on and the bill proceeds without the amendments, the rationale
of this being that there is then not a majority in support of the amendments,
which required majority support to be carried in the first instance. If a
clause is negatived in the first instance an equally divided vote on either
motion indicates that the clause still lacks majority support and the
amendment, that is, the omission of the clause, is insisted on. (Ruling of
President Sibraa, 21/10/1993, J.690-2; Procedure
Committee, Second Report of
1994, 10 November 1994, PP 223/1994, pp 4-28; statements by Deputy President,
10/2/1997, J.1400-1; 24/6/1997, J.2192-3; Taxation Laws Amendment Bill (No. 3)
1997, 30/9/1997, J.2571.) (See Supplement)
If an equally
divided vote results in an amendment not insisted on, a similar vote could
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 not be rejected but would remain in the
Senate and would not pass.
The motion that the Senate not insist on
its amendments disagreed to by the House may be combined with other elements to
secure agreement between the Houses; for example, the motion may be that the
Senate does not insist on such amendments and agrees to substitute amendments
made by the House. Such a compound question, however, may be divided by the
chair at the request of any senator so as to allow maximum opportunity to
ascertain the course of action preferred by a majority of the Senate (see
Chapter 10, Debate, under Dividing the question). Thus, in proceedings on the Native Title Amendment Bill 1997 in July
1998, the motion that the Senate not insist on its amendments disagreed to by
the House and agree to the amendments made by the House was divided to allow
consideration of groups of Senate and House amendments and proposed new
amendments (6, 7, 8/7/1998, J.4200-47, 4248-9, 4252-3, 4254-9, 4262-3; see also
Electoral and Referendum Amendment Bill (No. 2) 1998, 27/9/1999, J.1754-5;
Australian Research Council Bill 2000 and an associated bill, 8/2/2001,
J.3915-7; 7/3/2001, J.4055-9; Child Support Legislation Amendment Bill (No. 2)
2000, 28/6/2001, J.4514-22).
Agreement by the
Senate to the action of the House of Representatives does not preclude an
amendment to the motion for the adoption of the report of the committee of the
whole expressing the Senate’s opinion on relevant matters (Broadcasting
Legislation Amendment Bill 2001, 28/3/2001, J.4118-9).
In relation to
the Financial Sector Legislation Amendment Bill (No. 1) 2000, the government
took the unusual step of moving in the Senate a compound motion including the
element that the Senate insist on some amendments. This was done because the
government decided to accept some Senate amendments which it had at first
rejected in the House. (30/11/2000, J.3649-52; see also Trade Practices
Amendment Bill (No. 1) 2000, 18/6/2001, J.4314-5)
Standing Order 132 provides that the Senate may “propose
new amendments as alternative to the amendments to which the House of
Representatives has disagreed”. The expression propose new amendments
would cover not only making new amendments but also making requests for amendments where the new amendments are of a
character which the Senate is not empowered to make under section 53 of the
Constitution. (See Chapter 13, Financial Legislation, under Procedure on
financial legislation.)
Where a senator
proposes new amendments consisting of the omission of clauses or items, the
chair puts the question that the clauses or items stand as printed, as with
clauses or items considered in the first instance. (See above, under Committee
of the whole: amendments; 27/9/1999, J.1754-5.)
To any motion
moved under these procedures, words may be added to express the view of the
Senate, for example, to indicate that the Senate’s non-insistence on an
amendment should not be regarded as setting a legislative precedent
(Constitutional Convention (Election) Bill 1997, 28/8/1997, J.2354-5).
To ensure that new issues are not raised
when the bill is returned from the House of Representatives, a special rule is
provided, as with bills originating in the Senate. No amendment may be proposed
to any part of the bill which has received the concurrence of the House and
which has not been the subject of, or immediately affected by, some previous
amendment, unless a new amendment is consequential on an amendment already
agreed on by the Senate (SO 134). A suspension of standing orders is
necessary to allow an amendment contrary to this rule (8/11/1973,
J.467; 1/5/1980, J.1301; 3/12/1997,
J.3162). (For an exposition of the rule by President Baker, see SD, 11/6/1903,
pp 759-60.) (This rule does not apply to requests for amendments to bills
originating in the House of Representatives: see Chapter 13, Financial
Legislation, under Procedure on financial legislation.)
If the Senate disagrees with amendments
made by the House of Representatives to the Senate’s amendments, the message
returning the bill again to the House of Representatives contains reasons for
the Senate not agreeing to the amendments proposed by the House, drawn up in
the same way as reasons for disagreeing with amendments made by the House to a
bill originating in the Senate (SO 133).
Unlike the rule in standing order 127(1) relating to bills originating in
the Senate, there is no limitation in the standing orders on the number of
occasions on which the bill can be returned to the House of Representatives
before the bill is laid aside or a conference with the House is sought. The
rationale of this distinction is to give the Senate maximum freedom to review a
bill originating in the House.
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