Determination of questions arising
All questions arising in the House are determined by a majority of votes other than that of the Speaker. The Speaker does not vote unless the numbers are equal when he or she has a casting vote. A question may be determined on the voices, by division, or by ballot. The only exception to this general rule is that by practice a vote or address of condolence is carried by all Members present rising in their places, in silence, thereby indicating approval of the motion.
When debate upon a motion has concluded or has been interrupted in accordance with the standing orders, the Chair puts the question on the motion and states whether, in his or her opinion, the majority of voices is for the ‘Ayes’ or the ‘Noes’. If more than one Member challenges this opinion, the question must be decided by division of the House. The opinion of the Chair cannot be challenged later, but the Chair has put the question again when an assurance was given that some misunderstanding had taken place and by leave of the House following a protest by the Opposition.
In the event of only one Member calling for a division, that Member may tell the Chair that he or she wishes his or her dissent to be recorded, and the dissent is recorded in the Votes and Proceedings and in Hansard. More than one Member cannot record dissent at this time, as a division would then have to be proceeded with. However, on one occasion the dissent of the Opposition as a whole was recorded by leave, and more recently the dissent of two Members was recorded by leave.
Members cannot have their dissent recorded under this provision if they have in fact not called for a division—a request to have dissent recorded made after the question has been resolved is not effective (although the words of the Member making the request would be recorded in Hansard).
Vote recorded when no dissentient voice
Under standing order 126 a division may take place only after more than one Member challenges the Chair’s opinion by calling for a division. An exception to this rule is a division on the third reading of a constitution alteration bill, on which the agreement of an absolute majority of Members is required to be established. In this case the bells are rung as for a division and Members’ names recorded, even when there may be no opposition to the bill. A further exception has occurred when the Speaker, in accordance with a prior order of the House, directed the bells to be rung even though there was no dissentient voice, appointed tellers and directed that the names of those Members agreeing to a motion be recorded.
On a later occasion, a motion was agreed to unanimously and the bells were not rung, but, at the Speaker’s request, the names of all Members, including that of the Speaker, were recorded as supporting the motion. The Speaker stated that she understood this to be the wish of the House.
Number of divisions
The highest number of divisions held in any one year was 359 in 1975 and the highest number during one sitting was 83 on 9 and 10 April 1935. In recent years there has been an average of about two divisions each sitting day.
Entitlement of Members to vote
A Member is not entitled to vote in a division on a question about a matter, other than public policy, in which he or she has a particular direct pecuniary interest (see Chapter on ‘Members’). A Member’s vote may not be challenged except by substantive motion moved immediately after the division is completed; the vote of a Member determined to be so interested is disallowed.
Members must be within the area of Members’ seats at the commencement of the count (that is, when the tellers are appointed) for their vote to be counted—see page 279.
Divisions not proceeded with
Request for division withdrawn
The traditional practice of the House has been that once a division has been called for by at least two Members the division call cannot be withdrawn unless by leave of the House. However, divisions have sometimes not been further proceeded with at the request of Members who called for the division—on these occasions leave of the House has been implicit. This course cannot be taken if other Members object or if leave is formally sought and refused. Closure motions have been withdrawn, by leave, as the House was proceeding to a division, and the divisions not further proceeded with.
A division which has been deferred pursuant to standing order 133 (see page 282) is likely not to be proceeded with when it relates to a procedural motion which is no longer relevant at the time the deferred division is due to occur.
If a division call is withdrawn, the question under consideration is regarded as having been disposed of according to the Chair’s declaration on the voices. On an occasion in 2004 when the Chair had declared for the ‘Noes’, the side which did not call for the division (the ‘Noes’) requested that the division not proceed, in effect changing their vote. The Chair put the question again and it was decided on the voices for the ‘Ayes’.
Discretion of Chair
In 1933, on a call for a division on the motion that the House, at a later hour, again resolve itself into committee, the Speaker held the view that the division call was obstructive and, citing House of Commons practice, informed the House that it was within the discretion of the Chair to regard unnecessary calls for divisions on what are termed formal motions as obstructing the business of the House. The Chair has no such discretion in the House of Representatives and the so-called discretion has not been claimed by subsequent Speakers. In fact, the Chair has dismissed points of order that certain calls for a division were disruptive.
Procedure during divisions
Ringing of bells and locking of doors
Once a division has been called for and the call accepted by the Chair, the Clerk causes the division bells to be rung and the relevant sand glass kept on the Table is turned. At the lapse of four minutes as indicated by the sand glass, the doors are locked at the direction of the Chair. House staff act immediately on the Chair’s instruction to lock the doors. So as not to injure Members who are in the process of passing through the doors, staff will allow those Members to enter before locking the doors. However, they do not continue to hold the doors open for approaching Members. When successive divisions are taken and there is no intervening debate, tellers are appointed immediately and the bells for the ensuing divisions are rung for one minute only. The period for which the bells are rung was increased to four minutes when the new building was occupied in 1988.
Members calling for a division must not leave the area of Members’ seats. In 1935 a Member who called for a division and then left the Chamber against the express direction of the Chair was subsequently named and suspended.
After the doors are locked no Member may enter or leave the Chamber until after the division. Both the Prime Minister and Leader of the Opposition, however, have been allowed to leave when they have found that they should not be voting because of pairing arrangements. Other Members have been permitted to leave for the same reason. When the doors have been locked and all Members present are in their places, the Chair re-states the question to the House and directs the ‘Ayes’ to pass to the right of the Chair and the ‘Noes’ to the left.
Federation Chamber proceedings are suspended to enable Members to attend divisions in the House.
Four or fewer Members on a side
If there are four or fewer Members on one side after the doors are locked, the Chair declares the decision of the House immediately without completing the count. The names of the Members in the minority are recorded in the Votes and Proceedings.
Appointment of tellers
Voting does not commence until the tellers are appointed. When Members have taken their seats, the Chair appoints tellers for each side to record the names of Members voting. The number of tellers is at the Chair’s discretion; recent practice has generally been to appoint two on each side. The Chair’s attention has been drawn to the fact that a teller appointed for the ‘Ayes’ did not move from his place with the ‘Noes’ to join Members voting ‘Aye’ until after his nomination; he was directed to return to his place and the Chair then appointed another teller for the ‘Ayes’. The tellers are usually, although not invariably, appointed from the party whips or deputy or assistant whips. A Prime Minister, on the occasion of a free vote, has been appointed as a teller.
From time to time those appointed as tellers have refused to act, and the following action has been taken by the Chair:
when tellers for the ‘Noes’ refused to act, and all Members of the Opposition took the same position, tellers were appointed from the ‘Ayes’ to count the ‘Noes’; their votes were recorded with the ‘Noes’;
the Speaker noted that whether a Member so declining could be compelled to do so or was to suffer a penalty was a matter which he would consider;
when tellers for the ‘Noes’ refused to act, the Chair stated that it was an act of contempt for a Member to refuse to do his duty and appointed tellers from the ‘Ayes’ to count the ‘Noes’; their votes were recorded with the ‘Ayes’; and
after a teller for the ‘Noes’ refused to act, the Speaker stated that any disobedience to the call of the Chair was an offence, and that the Member rendered himself liable to be named.
When the tellers for the ‘Noes’ refused to act in 1918, Speaker Johnson made a statement from which has evolved the modern practice for dealing with this situation. After drawing attention to the standing order which referred to a Member wilfully disobeying an order of the House, the Speaker stated that a direction by the Chair to any Member to act as a teller is a lawful order of the House through the Speaker as its mouthpiece. He added that, as the House had no special standing order dealing with the refusal of a teller to act, he would draw on the practice of the House of Commons which provides that, if two tellers cannot be found for one of the parties in a division, the division cannot take place and the Chair immediately announces the decision of the House.
The current practice, derived from that background, is that if those Members appointed by the Chair, usually a whip and deputy whip, refuse to act as tellers, it is taken to mean that no Members of that party will act as tellers, the division is not proceeded with and the Chair immediately declares the question resolved in the affirmative or the negative as appropriate. On 30 November 2000 after opposition Members had left the Chamber in protest, there being no tellers for the Ayes, the Speaker declared the question resolved in the negative.
Members to be within area of Members’ seats to vote
Members not within the area of Members’ seats are not counted. However, the Chair, on the suggestion of the whips, has agreed that the vote of an indisposed Member who had left the Chamber be recorded. On another occasion, with the concurrence of the former committee of the whole, the Chair directed that the vote of a Member who had tried to enter the Chamber while the bells were ringing but found the doors locked be recorded.
Members not to move places during vote
On the tellers being appointed no Member may move from his or her place until the result of the division is announced. (These restrictions on Members’ movements do not apply in the case of a successive division—see page 281.) The Chair has drawn attention to the movement of Members during a division which may confuse the tellers.
The rule against Members moving after tellers have been appointed can mean that a Member may be recorded as voting other than in accordance with his or her wish. Members realising that they have been sitting on the wrong side after tellers have been appointed have been obliged to remain in their seats and have their votes recorded for the side where they were sitting. A Member who has crossed the floor after tellers have been appointed has been directed to return to his place. On another occasion two Members were named and suspended for disregarding the authority of the Chair in connection with the rule. The Members had left their seats after the appointment of tellers, moving to the back of the Chamber with the intention of not voting, and disregarded the Chair’s direction during the division that they return to the seats they had been occupying when the tellers were appointed.
However, the Chair has directed that the vote of an infirm Member who wished to vote with the ‘Ayes’ but was sitting with the ‘Noes’ be recorded with the ‘Ayes’. On another occasion, on the understanding that it should not constitute a precedent, a Member was allowed to cross the floor after tellers were appointed as there had been a degree of confusion on a free vote.
Following a division on 3 September 1975, the Speaker upheld a point of order that the vote of a Member who had been occupying the Chair as Deputy Speaker when the tellers were appointed, and who had then left the Chair and voted in the division, should not be counted.
Recording the vote
Standing order 130 requires the tellers to record the name of each Member voting, count the total number of Members voting, sign their records, and present their records to the Speaker, who declares the result to the House. In practice the names are marked off on printed division lists which are not signed by the tellers until their count and counts made by the Clerk and Deputy Clerk are in agreement. The signed lists are then handed to the Clerk who passes them to the Speaker for the declaration of the result. In marking the list for each side, a teller for the ‘Ayes’ operates with a teller for the ‘Noes’ but the two tellers for the ‘Ayes’ sign the ‘Ayes’ list and those telling for the ‘Noes’, the ‘Noes’ list.
Requirement to vote a certain way
Members calling for a division must not leave the area of Members’ seats and must vote with those Members who, in the Speaker’s opinion, were in a minority when the Members called ‘Aye’ or ‘No’. When no Members have passed to the ‘Noes’ side, the Speaker has directed those Members who called ‘No’ to vote accordingly. The Speaker ruled in 1944 that it was not within the province of the Chair to direct attention to the fact that those who called for a division did not vote with the minority but that the Chair’s attention must be directed to the situation at the time.
It is in order for a Member to vote against his or her own motion or amendment, or against a motion or amendment he or she has seconded.
Points of order and Members’ remarks during a division
While the House is dividing, Members may speak, while seated, to a point of order arising out of or during the division. Because Members are required to be seated during a division, if a Member wishes to raise or speak to a point of order, it is the traditional practice of the House for the Member to hold a sheet of paper over the top of his or her head in order to be more easily identified by the Chair. Decorum should prevail during a division, and it is not in order for Members to engage in debate or exchange remarks across the Chamber. Conversation audible to the Chair has been regarded as disorderly. Remarks made during a division are not regarded as part of the proceedings of the House and are not recorded by Hansard. The Speaker has pointed out to Members that such remarks might not be covered by privilege and that this also has implications for media reports.
When successive divisions are taken, and there is no intervening debate after the first division, the Chair appoints tellers immediately and the bells are rung for one minute only. Successive divisions often occur when a closure motion is moved or when a closure of debate motion follows one or two closures of Member (for example, of the mover and seconder of a motion attempting to suspend standing orders). However, a successive division may also relate to a new item of business if no debate occurs on it, and amendments can be moved formally without constituting intervening debate.
With successive divisions tellers may record Members’ votes as being the same as for the immediately preceding division unless Members report different voting intentions—this applies to Members who voted in the preceding division and who then wish not to vote or to vote differently, as well as to Members who did not vote in the preceding division and who then wish to vote. Members who intend to vote the same way as they did previously must remain seated until the result of the division is announced. A full count can be carried out if it is clear to the Chair that the majority of Members wish to vote differently or if there is any confusion or error in the count by the tellers.
On Mondays, any division called for in the House between the hours of 10 am and 12 noon, on a question other than on a motion moved by a Minister during that period, stands deferred until 12 noon. Similarly, such divisions called before 2 pm on Tuesdays are deferred until after the discussion of the matter of public importance. Unless a decision on a matter subject to a deferred division is necessary before any further consideration can be given to the matter, debate may continue on another question. Debate under way at 12 noon is adjourned to allow the deferred division to occur. However, if a Member is speaking at that time, the adjournment of the debate and thus the division is postponed until the end of the Member’s speech.
Suggestions have sometimes been made that divisions should take place at a set time each day, in order to save the time of the House and to avoid the disruption that unpredictable divisions can cause to Members and Ministers. Although such a procedure has some attractions, the legislative program could be affected, as each subsequent stage of a bill is dependent on a decision having been reached on the previous stage, and each division called could necessitate postponement of further consideration of a bill, perhaps for a significant period. Another consideration is the range of procedural motions which can be moved without notice at any time, which need to be resolved before business can continue and which are often divided on. During the short-lived experiment with Friday sittings at the start of the 42nd Parliament, standing orders provided for divisions on Friday to be postponed until the next sitting. The resulting situation in which procedural motions could not be resolved contributed to making the experiment unworkable.
This is not to say that divisions could not in many cases be arranged to occur at times which suited Members generally, but this would result from consultation and cooperative timetabling of business (such as usually occurs during the evening meal times when divisions tend to be avoided by timing of business rather than by deferral) rather than from the setting of an arbitrary time for the holding of all divisions.
Record of divisions
Lists of divisions are recorded in the Votes and Proceedings and in Hansard. The Speaker may direct the record to be corrected if a Member complains to the House that a division has been wrongly recorded. The Chair has directed that the Leader of the Opposition’s vote be deleted as he was paired with the Prime Minister who was not in the Chamber. In practice, discrepancies are corrected prior to publication by agreement between the tellers or by consultation between the relevant whip and staff of the House after a division when a name has been recorded incorrectly in the tellers’ sheets. The Speaker has directed that the official record be corrected when a Member’s name has been recorded incorrectly and the name of a Member has been omitted. Similarly, corrections have been made when Members not present have been recorded as having voted.
If any confusion, or error concerning the numbers reported by the tellers, occurs and cannot be corrected, the House divides again.
In 1974, the third reading of a bill to alter the Constitution not having been carried by an absolute majority, the Speaker made a statement explaining that for some inexplicable reason the bells had been rung for only one minute 26 seconds (instead of 2 minutes). The vote on the third reading of the bill was later rescinded and taken again.
If a division has miscarried through misadventure caused by a Member being accidentally absent or some similar incident, any Member may move on the same sitting day, without notice and without the need for a seconder, ‘That the House divide again’. If this motion is agreed to the question is put again and the result of the subsequent division is the decision of the House.
The pairs system, a practice of some antiquity, is an unofficial arrangement between Members, organised by party whips, which can be used to enable a Member on one side of the House to be absent for any votes when a Member from the other side is to be absent at the same time or when, by agreement, a Member abstains from voting. By this arrangement a potential vote on each side of a question is lost and the relative voting strengths of the parties are maintained. The system also allows the voting intentions of absent Members to be recorded.
With the development of the modern party system pairing arrangements were facilitated and Members have been paired not only on particular questions or for one sitting of the House, but sometimes for extended periods. In some periods the Prime Minister and the Leader of the Opposition have been automatically paired unless one indicated that he or she wished to vote on a particular issue.
The closer the relative strength of the parties the more crucial the pairing arrangements have become. In these circumstances disputations on pairing arrangements are more likely to occur, especially on vital votes, and have been the cause of protracted disorderly proceedings. Statements have been made to the House on guidelines for the granting of pairs. Pairs have been cancelled by the Government because of the need for an absolute majority to pass a bill to alter the Constitution. The Opposition has cancelled the arrangements for the remainder of the session as a consequence of its view on the manner in which the proceedings of the House were being conducted. Pairing may be suspended if mutually agreeable arrangements between the two sides of the House are not possible.
Although there is no rule or order of the House requiring a Member to observe a pair, there is a considerable moral and political obligation on his or her part to adhere to such an agreement. The consistent attitude of the Chair on this question was summed up by Speaker Watt when, in reply to a question as to whether it would be a breach of honour if a Member did not observe a pair, he observed that the Chair knew nothing of pairs, the question of honour being a matter for the Members and not the Chair to decide.
During a division, it is the practice that Members who are paired leave the Chamber before the doors are locked so as to avoid voting. However, if a paired Member calls for a division, he or she is bound not to leave the area of Members’ seats, and to vote. Both the Prime Minister and Leader of the Opposition have been allowed to leave the area of Members’ seats after the doors have been locked when they have found that they should not be voting because of pairing arrangements. Other Members have been permitted to leave for the same reason.
In 2008 the House agreed to a resolution making special provisions for nursing mothers, recognising that Members required to nurse infants may not always be able to attend the Chamber to vote in divisions. A Member nursing an infant at the time of any division (except that on the third reading of a bill to alter the Constitution) may give her vote by proxy—to the Chief Government Whip in the case of a government Member and to the Chief Opposition Whip in the case of a non-government Member. The proxy vote is treated as if the Member were present in the Chamber.
The resolution also expressed the opinion that the special provisions should not be extended or adapted to apply to Members not able to be present in the Chamber for other reasons.
Most decisions of the House are determined on party lines, but occasionally a question before the House is decided by what is termed a ‘free vote’. A free vote may occur when a party has no particular policy on a matter or when a party considers that Members should be permitted to exercise their responsibility in accordance with conscience. Within the committees of the House party lines are less rigid and questions are often decided by what is, in effect, a free vote.
A free vote is a political rather than a procedural matter and is not specifically identified as such in the Votes and Proceedings nor, apart from any comments by Members during debate, in Hansard. Items of business described in debate as being subject to a free vote may not necessarily be formally voted on at all, perhaps being carried without division. Even though a party may allow a free vote of its Members on a particular issue the vote may, in fact, follow party lines substantially or completely. A free vote may be permitted by one side of the House but not the other.
Free votes have been held on questions pertaining to the Parliament itself, such as those arising out of reports of the Privileges or the Procedure Committee. They are also occasionally held on social issues where the vote is governed by conscience.
Examples of a free vote have included:
New and Permanent Parliament House
Motions as to site—1968, 1973;
Parliament Bill 1974 (private Member’s bill).
Privileges Committee report
1955—Browne and Fitzpatrick case.
Standing Orders Committee or Procedure Committee reports and related matters
Reports dated: 10 June 1970, 19 August 1971, 20 March 1972;
House of Representatives (Quorum of Members) Bill 1970;
Motion endorsing Procedure Committee recommendation to alter quorum of the House, 1987.
Private Members’ bills and motions
Medical Practice Clarification Bill 1973;
Euthanasia Laws Bill 1996;
Sexual relationships—Social educational and legal aspects—Proposed Royal Commission (motion);
Homosexual acts and the criminal law (motion);
Termination of pregnancy—Medical benefits (motion);
Fluoridation of Canberra water supply (motion).
Matrimonial Causes Bill 1959;
Death Penalty Abolition Bill 1973 (Senate bill);
Family Law Bill 1974 (Senate bill);
Family Law Amendment Bill 1983 (Senate bill);
Sex Discrimination Bill 1984 (Senate bill);
Constitution Alteration (Establishment of Republic ) Bill 1999;
Research Involving Embryos and Prohibition of Human Cloning Bill 2002;
Therapeutic Goods Amendment (Repeal of Ministerial Responsibility for Approval of RU486) Bill 2005 (Senate bill);
Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006 (Senate bill);
Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (Senate bill).
Proposals for change in division procedure
There have been a number of proposals for changing the procedure used by the House during divisions. Most proposals have been aimed at either avoiding problems of overcrowding or reducing the time taken by divisions. Both these problems are especially noticeable during periods when the Government has a large majority. In the 37th Parliament the time taken to record and tally a division (not including the time of the ringing of the bells) was about five or six minutes. In the 38th Parliament, when there was a very large government majority, this time increased to approximately eight minutes. This situation gave rise to the 1996 Procedure Committee inquiry into the conduct of divisions. Measures introduced following this review included:
the number of tellers left to the Speaker’s discretion (previously two per side);
Members presumed to vote the same way in successive divisions unless tellers notified otherwise (see page 281);
count not completed when four or fewer Members on a side (see page 278).
After the introduction of these streamlining procedures, and with a reduced government majority, in the following Parliament the average time taken to record a division dropped to about four minutes.
In 2003 a trial was conducted involving doubling the number of tellers to eight, with two pairs of tellers (each pair counting a specific block of seats) to count each side. Evaluating the trial the Procedure Committee concluded that while the trial had been successful in saving time, there was a systemic problem (the use of four tellers sheets) which had caused an unacceptable level of errors.
Proposals put forward over the years which have not been adopted include:
that the Chair should have discretionary power, as in the House of Commons, to reject the call for a division, thus minimising ‘unnecessary’ divisions called primarily as a tactical measure;
the adoption of systems whereby Members file past the Chair or tellers and have their votes counted while the bells are ringing;
the introduction of electronic voting as a time-saving device and to enable Members to vote without leaving their seats and obviating the need to appoint tellers.
Of all these proposals the question of electronic voting has received the most attention. In 1970 the Joint Select Committee on the New and Permanent Parliament House agreed that, although the installation of electronic voting was not desirable at that time, the Chambers in the new Parliament House should be provided with all necessary conduits and ducts in preparation for the possible installation of electronic voting cabling at a later date. In 1993 the Speaker and a small group of parliamentary staff members inspected electronic voting facilities in operation in various overseas Parliaments. In its report to the House the inspection team stated that it was impressed with the equipment inspected, its speed of operation, accuracy and stated reliability. The report recommended that the Government, Opposition and other non-government Members should confer to seek in-principle agreement to the installation of electronic voting equipment in the House of Representatives Chamber. The voting system proposed was to retain the traditional voting method of Members dividing to the right or left of the Chair, with Members recording their votes, irrespective of where they actually sat for the division, by means of personal electronic cards.
In 1996 the Procedure Committee looked at electronic voting as part of its wider review of the conduct of divisions, but decided to defer consideration of the option in the belief that the costs involved precluded it at that time. However, the committee’s report included a dissenting report which recommended the implementation of electronic voting. The dissenting committee members argued that the benefits of the system would outweigh the costs and noted that the cost of technology was falling.
In 2003 the Procedure Committee, in declining to recommend the introduction of electronic voting at that time, reported its belief that the general principles of electronic voting should be considered by and debated in the House before the technological alternatives and costs were examined in detail. In 2013 the committee prepared a short report reviewing the existing evidence and commended a more in-depth inquiry to a future Procedure Committee. In 2016 the committee recommended that electronic voting to record divisions be implemented.