Motions relating to the standing orders
The standing orders are the rules of the House made under the power granted by section 50 of the Constitution. They are of continuing effect and apply until changed by the House. Standing orders are made and amended, and may be suspended, by resolution of the House. Standing orders intended to apply only to the current Parliament or for a lesser period—for example, for the remainder of a year—are known as sessional orders.
The operation of a standing order can also, in effect, be suspended ‘by leave of the House’ without any motion being moved. While the subject of leave of the House does not fit entirely comfortably under the heading of ‘motions’, it is most appropriately covered here together with the suspension of standing orders, as the two procedures are so closely connected.
Motions to make or amend standing or sessional orders
Standing orders are made and amended by motion moved on notice in the usual way; no special procedures are involved. At the start of a new Parliament, for example, standing order 215 is commonly amended to adjust the names and composition of the general purpose standing committees. Other changes and new standing orders are often made following recommendation by the Standing Committee on Procedure, and may be introduced for a trial period as sessional orders.
The Clerk has the authority to correct clerical errors or inconsistencies in wording in the standing orders, but not so as to cause a change to the meaning of any standing order. In practice, the Clerk only acts on such a matter after consultation—for example, with the Speaker, the Leader of the House, the Manager of Opposition Business and the Procedure Committee.
Leave of the House
The House or Federation Chamber may grant leave—that is, give its unanimous permission—to a Member to act in a manner not expressly provided for in, or contrary to, the standing orders. A Minister or Member may ask for leave, or the Chair, sensing the feeling of the House or the Federation Chamber, may initiate the proposal; in either case the Chair seeks the agreement of Members. Leave may be granted only if no Member present objects.
Leave may be sought for a variety of purposes. Common examples are to enable the next stage of a bill to be taken immediately; to proceed immediately from the second reading of a bill to the third reading (that is, to bypass the consideration in detail stage); during the consideration in detail stage to take a bill as a whole or in parts together; to move a motion without notice; or to enable statements, including ministerial statements, to be made to the House. Leave is often sought to present papers to the House—while there is no provision for private Members to table papers, they may do so if they obtain leave of the House, and Ministers too require leave in some circumstances.
Motion to suspend standing or sessional orders
Standing order 47 provides that:
(a) A Member may move, with or without notice, the suspension of any standing or other order of the House.
(b) If a suspension motion is moved on notice, it shall appear on the Notice Paper and may be carried by a majority of votes.
(c) If a suspension motion is moved without notice it:
(i) must be relevant to any business under discussion and seconded; and
(ii) can be carried only by an absolute majority of Members.
(d) Any suspension of orders shall be limited to the particular purpose of the suspension.
Thus, like any other motion, a motion to suspend standing orders is moved pursuant to notice or by leave of the House. However, it can also be moved without notice in cases of necessity.
Motions to suspend the standing orders are most commonly moved in order to:
- facilitate the progress of business through the House;
- extend or reduce time limits for speeches;
- enable a motion to be moved without notice; and
- enable a particular item of business to be called on immediately.
Although standing order 47 refers to ‘any standing order’, in practice motions proposing to suspend standing orders provisions that uphold constitutional requirements or principles are not acceptable. Carriage of a motion that standing orders be suspended to permit certain action by the House does not require that the action be taken.
The standing or sessional orders may be suspended by the House only, and not by the Federation Chamber. The position is summarised in the following statement from the Chair (in relation to the former committee of the whole):
The standing orders are established by the House sitting as a House and cannot be amended or suspended by a Committee of the Whole. The Committee is a creature of the House and has no right or power to vary a decision of the superior body.
The House may suspend standing or sessional orders in relation to proceedings that may take place later in the Federation Chamber, or in relation to committee proceedings.
As with other motions, a motion to suspend standing or sessional orders requires a seconder, with the exception that a seconder is not required for a motion moved by a Minister (or Parliamentary Secretary) or the Chief Government Whip. A motion may relate to matters not yet before the House and the standing orders may be suspended for more than one purpose. While other business is before the House, a motion to suspend standing orders will not be received by the Chair unless the substance of the motion is relevant to the item of business. If it is not relevant to the item of business, it cannot be moved until the item is disposed of—that is, between items of business. A particular standing or sessional order may be suspended in order to achieve a single object. More commonly however the object is achieved by a motion expressed in the terms ‘That so much of the standing (and sessional) orders be suspended as would prevent… ’.
Pursuant to notice
The spirit of the standing orders is more properly met when a motion to suspend standing orders is brought before the House after notice has been given. Such a motion appears on the Notice Paper and may be carried by a majority of those voting. A more regular use is made of notices at times when the Government has a small majority, in order to avoid the requirement that a motion moved without notice must be carried by an absolute majority (and see ‘Contingent Notice’ at page 294.)
By leave of the House
A motion to suspend standing orders may also be moved following the granting of leave by the House. The granting of leave obviates the need for notice and can be taken to mean that the object of the motion—that is, the suspension of standing orders—meets with the unanimous consent of the House, and hence the motion is unlikely to be opposed. This does not imply that once standing orders have been suspended to move a motion without notice or bring on an item of business, that the motion or item of business will not be opposed or challenged in the House. When leave is granted the motion to suspend standing orders may be carried by a simple majority of those voting, but when leave has been given a division is not normally called for.
If a suspension motion is moved without notice it must be relevant to any business under discussion and seconded, and can be carried only by an absolute majority of Members. If a Member wishes to move for the suspension of standing orders without notice, the Member—
- must first receive the call from the Chair; and
- may not interrupt a Member who is speaking.
Such a motion can be moved during consideration of an item of business only if it is relevant to that item of business. If the motion is not relevant to the item of business, it must be moved after the item is disposed of—that is, between items of business.
A motion to suspend standing orders has been ruled out of order because:
- it contravened the same motion rule;
- there were no standing orders relating to the purpose for which the motion was proposed;
- there was already a motion to suspend standing orders before the House;
- it was unrelated to the question before the House;
- the Chair had given the call to the Member for another purpose;
- it covered the same subject on which the House had just voted to adjourn debate;
- at the time the Member sought to move it another Member was speaking to a motion he had moved; and
- the written motion handed in differed substantially from the terms the Member had read out.
Part of a motion to suspend standing orders has been ruled out of order on the grounds that it was rhetorical.
If standing orders have been suspended in order to permit certain action, a further motion to suspend standing orders for another unrelated purpose may not be moved until the action which was the subject of the first motion has been completed. It is not in order to move a suspension of standing orders to vary the order of business when a motion to set the order of business has only just been agreed to.
A motion to suspend standing orders should be moved before the cut-off time for new business as the motion itself constitutes new business under the terms of standing order 33. However, a motion moved, by leave (and so by unanimous consent of the House), to enable certain orders of the day to be called on after the specified time has been used and is less objectionable.
Without notice as a tactical measure
In earlier years the procedure of moving for the suspension of standing or sessional orders was used sparingly by the Government mainly to facilitate the progress of business through the House. However, since the late 1960s the procedure has been used by the Opposition as a procedural device to attempt to bring forward for debate or highlight matters which it considers to be of national, parliamentary or political importance at the time. The use of such tactics has become frequent in recent years. At times, the Government has apparently considered these tactical diversions to be so prevalent and disruptive to its program of business that, for some periods, the relevant standing order (now S.O. 47) has itself been suspended except when a motion was moved pursuant to the standing order by a Minister. On other occasions a notice of motion to suspend the standing order in this way has remained on the Notice Paper but not in fact been moved—the obvious intention of the notices being to discourage undue use of the practice.
The frequency of these motions was considered by the Standing Orders Committee in 1972 and the committee recommended a time limit of 25 minutes on the whole debate on such a motion. The House adopted the recommendation. The committee did not attempt to prevent such a motion being moved by a private Member, regard being had to the consideration that Members should have a reasonable opportunity to express a view judged to be politically important at the time.
There are, however, restrictions on the timing of such motions. In view of conflicting precedents on the question of precisely when such motions may be moved, Speaker Jenkins clarified the matter and explained the position he intended to adopt on 27 March 1984. He stated that the correct interpretation and application of the standing order required that a motion without notice to suspend standing orders could only be moved (a) when other business was before the House if the motion was relevant to the item before the House at the time or (b) when there was no business before the House, that is, between items of business. This has become the firm practice of the House.
Debate on motion
The time limits for debate on a motion moved without notice to suspend standing orders under standing order 47 are: whole debate 25 minutes; mover 10 minutes; seconder five minutes; Member next speaking 10 minutes; any other Member five minutes. When the motion is moved pursuant to notice or by leave of the House, the time limits are the same as for any other debate not otherwise provided for by the standing orders: whole debate without limitation of time; mover 20 minutes; any other Member 15 minutes.
An amendment may be moved to a motion to suspend standing orders. Debate on a motion to suspend standing orders has been adjourned.
Debate on a motion to suspend standing orders should be relevant to the question before the House—that is, that standing orders be suspended. Members should not dwell on the subject matter which is the object of the suspension. The Chair has consistently ruled that Members may not use debate on a motion to suspend standing orders as a means of putting before the House, or canvassing, matters outside the question as to whether or not standing orders should be suspended. However, this rule has not always been strictly enforced.
The Procedure Committee has criticised the use of a combined motion suspending standing and sessional orders and incorporating condemnation of a private Member. The committee concluded that where the House is being asked to reflect on the conduct of a Member it should be done by way of a separate, substantive motion and not confused with the procedural mechanism for putting the motion before the House.
Most decisions of the House are decided by a simple majority—that is, a majority of the Members actually voting. An absolute majority is a majority of the membership of the House. In a House of 150 Members an absolute majority is 76 Members.
Any motion moved without notice and without leave to suspend standing orders must be carried by an absolute majority of Members. If such a motion is agreed to on the voices the record notes that the question passed ‘with the concurrence of an absolute majority’. The House does not proceed to a formal recorded vote as it does for unopposed third readings of constitution alteration bills, where the absolute majority is a constitutional requirement.
In 1935 the Solicitor-General advised that the absolute majority requirement for the suspension of standing orders appeared to be invalid:
In my opinion, every matter before the House which is proposed in the form of a motion, and upon which a question is subsequently put, is a ‘question arising’ in that House, and must be determined by a majority of votes, as provided by section 40.
The power given by section 50 to each House to make rules and orders with respect to the order and conduct of its business and proceedings does not confer power to make rules and orders which are inconsistent with the Constitution. The provisions of section 40, interpreted in the manner I have shown, are of general application, and cannot be cut down by rules or orders made under section 50.
The provision was considered by the Standing Orders Committee during the 1962 revision of the standing orders. The question of omitting the absolute majority requirement in accordance with the 1935 opinion was canvassed, but no decision to alter the requirement was reached. During the committee’s consideration, the Attorney-General, referring to what is now standing order 47(c), advised:
Strictly as a matter of law, I would myself think S.O. No. 400 is invalid, as being inconsistent with the express provisions of section 40 of the Constitution. That section, as quoted above, provides that questions arising in the House shall be determined by “a majority of votes”. I do not myself think it is open to the House to adopt a Standing Order the effect of which is to declare that certain questions are to be determined not by a simple majority but only by an absolute majority. The then Solicitor-General so advised in 1935, and in my view correctly. But this is a matter for the House itself, and not for any court of law, and it is to be noted that in 1950 the House adopted S.O. No. 400 in its present form, thus, in substance, declining to give effect to the opinion that Sir George Knowles had expressed in 1935.
In these circumstances I think the Speaker has strong warrant for applying S.O. No. 400 when occasion arises, notwithstanding any doubts as to its validity.
Senate standing orders have a similar requirement for an absolute majority for motions without notice to suspend standing orders (Senate S.O. 209), and also for motions to rescind an order of the Senate (Senate S.O. 87). As in the House, the Senate has accepted that such standing orders are in force, despite doubts raised in the past as to their constitutional validity.