Motions agreed to—resolutions and orders of the House
A motion proposed to the House must be phrased in such a way that, if passed, it will purport to express the judgment or will of the House. Every motion, therefore, when agreed to, assumes the form of an order or of a resolution of the House.
An order has been described as a command, and a resolution as a wish. By its orders the House directs its committees, its Members, its staff, the order of its own proceedings and the acts of all persons whom they concern. By its resolutions the House declares its own opinions and purposes. In practice, however, the terms are often used synonymously, resolution being the term most generally used.
Ordinarily the orders and resolutions of the House are singular or ‘one off’ in effect. There are those orders that are of a machinery nature—for example, an order of the House that a bill be read a second or third time—and there are those that are more specific in nature—for example, an order that the Speaker, in the name of the House, take some particular action. An example of a ‘singular’ resolution of the House would be one agreeing to a motion of condolence. The great majority of the orders and resolutions of the House are of the singular type.
Orders and resolutions of the non-singular type may be of unspecified, limited or continuing duration. Traditionally, resolutions or orders of the House of Commons, unless otherwise provided, were considered to have effect only during the session in which they were passed. Some resolutions are seen to have effect from one session to the next, prorogation notwithstanding. For example, on 17 September 1980 the House passed two resolutions, concerning reports of the Committee of Privileges, which expressed the opinion that the reports of the committee should be considered early in the 32nd Parliament (the next Parliament). The terms of a resolution may state that it is to have effect for a limited time—for example, until a specific date, or for the remainder of a session. Resolutions appointing standing committees, as a matter of routine, contain the words ‘until the House of Representatives is dissolved or expires by effluxion of time’; resolutions appointing select committees sometimes do so. Some orders and resolutions expressly state that they are to have a continuing and binding, or standing, effect. The obvious examples of this are the standing orders themselves. These are the permanent rules for the guidance and control of the House in the conduct of its business, which are ‘of continuing effect and apply until changed by the House in this or a subsequent Parliament’. In 1984 the terms of resolutions adopted relating to the registration and declaration of Members’ interests specified that they were ‘to have effect from the commencement of the 34th Parliament and to continue in force unless and until amended or repealed by the House of Representatives in this or a subsequent Parliament’. The resolutions have since been amended on several occasions.
More recent resolutions of continuing effect were those of:
5 May 1993 concerning Parliamentary Secretaries;
12 May 1994 concerning the Chief Government Whip; and
5 December 1994 concerning the Votes and Proceedings.
Each of these resolutions provided that it ‘continue in force unless and until amended or rescinded by the House in this or a subsequent Parliament’. These resolutions became unnecessary when their provisions were incorporated into the standing orders coming into effect in the 41st Parliament.
Other orders and resolutions, whilst they may not contain such explicit provisions, have been taken to have a continuing effect. The binding force on a continuing basis of resolutions which may be seen as having continuing effect although their terms do not expressly indicate this, is implicit rather than explicit, in that it relies on the acquiescence of the House for its continuing operation. Such acquiescence does not deny the power of the House simply to ignore the resolutions of previous sessions; to state explicitly that such resolutions have no effect in succeeding sessions; to rescind them explicitly; or to pass other resolutions, notwithstanding them. Orders and resolutions which affect the practice and procedure of the House without any period of duration being fixed, are often regarded as having permanent validity. That is, they may, by virtue of continuous practice, acquire the force of customary law.
That such orders and resolutions of the House of Representatives will have continuing validity is implied in section 50 of the Constitution. The standing orders of the House also imply the continuing validity of such orders and resolutions. Standing order 3(e) states, in part, that in deciding cases not otherwise provided for, the Speaker shall have regard to established practices of the House.
However, despite the historical merit of such arguments, to avoid doubt it has become the practice to make the duration of effect explicit in the terms of the resolution itself. The development of this practice may be seen in the history of the resolution of 5 May 1993, referred to above, relating to Parliamentary Secretaries. A resolution in identical terms (apart from the provision for continuing effect) had been agreed to in the preceding Parliament. In moving the new motion the Leader of the House explained that it was returning to the House because of doubts as to whether the previous resolution would cover the new Parliament.
The House has the power, within constitutional limits, to make a determination on any question it wishes to raise, to make any order, or to agree to any resolution. In the conduct of its own affairs the House is responsible only to itself. However, the effect of such orders and resolutions of the House on others outside the House may be a limited one. Some resolutions are couched in terms that express the opinion of the House on a matter and as a result may not have any directive force. However, this is not to say that the opinions of the House are to be disregarded, as it is incumbent upon the Executive Government and its employees and others concerned with matters on which the House has expressed an opinion to take cognisance of that opinion when contemplating or formulating any future action.
Other than in relation to matters such as its power to send for persons, documents and records and its powers in regard to enforcing its privileges, decisions of the House alone have no legal efficacy on the outside world. The House, as a rule, can only bring its power of direction into play in the form of an Act of Parliament—that is, only in concert with the other two components of the legislature, the Sovereign and the Senate. This is the only means by which the House can direct (rather than influence) departments of State, the courts and other outside bodies to take action or to change their modes of operation. However, while the House may not have the power to make a direction, a resolution phrased in other terms may in practice be as effective. For example, the resolution of the House of 17 September 1980 seeking to direct the (then) Public Service Board said, in part, ‘ … (2) the Public Service Board be requested to do all within its power to restore Mr Berthelsen’s career prospects in the Public Service and ensure that he suffers no further disadvantage as a result of this case … ’. The response of the Public Service Board to the request was presented on 24 February 1981.
The limitation on the efficacy of orders of the UK House of Commons on others outside the House was demonstrated in the decisions of the court of Queen’s Bench in the cases of Stockdale v. Hansard (1836–40). The court ruled that an order of the House of Commons alone was not a sufficient cause to protect a person, carrying out that order, from the due processes of the law. As a consequence of the decisions in these cases the objectives of the House in the area were effected by legislation—the Parliamentary Papers Act 1840—as it was only by legislating with the other constituent parts of the Parliament that the House could give sufficient authority to its wishes.
Section 47 of the Acts Interpretation Act 1901 provides that:
Where a resolution has been passed by either House of the Parliament in purported pursuance of any Act, then, unless the contrary intention appears, the resolution shall be read and construed subject to the Constitution and to the Act under which it purports to have been passed, to the intent that where the resolution would, but for this section, have been construed as being in excess of authority, it shall nevertheless be a valid resolution to the extent to which it is not in excess of authority.
Resolution or vote of the House rescinded or varied
Standing order 120 permits a resolution or other vote of the House to be rescinded during the same session if seven days’ notice is given. If the rescission is to correct irregularities or mistakes one day’s notice is sufficient or the correction may be made at once by leave of the House. This procedure is rarely invoked. May states that the reason motions to rescind a vote or resolution are rare is that the Houses instinctively realise that parliamentary government requires the majority to abide by a decision regularly come to, however unexpected, and that it is unfair to resort to methods, whether direct or indirect, to reverse such a decision. The practice, resulting from this feeling, is essentially a safeguard for the rights of the minority, and a contrary practice is not normally resorted to, unless in the circumstances of a particular case those rights are in no way threatened.
For practical convenience the requirement for seven days’ notice for a rescission motion is often avoided by suspending the relevant standing order or by a motion moved by leave, especially when orders of the House are rescinded as a preliminary to making a different order on the same subject. However, the latter course would be strictly against the spirit of the standing order unless the rescission is to correct an irregularity or mistake.
In order that the House may easily make changes to its sessional orders, the strictures of standing order 120 are overcome by using the words ‘unless otherwise ordered’ in the resolution adopting the sessional orders. Motions suspending standing orders to set a timetable or make provisions for specific items of business may also incorporate these words in order to cater for changing circumstances.
The following are cases of the House having rescinded resolutions or orders:
all resolutions of the House and committee of the whole from a certain point relating to a particular appropriation bill, to enable a new bill to be introduced (standing orders suspended);
the third reading of a bill to enable a message from the Governor-General recommending an appropriation to be announced (standing orders suspended);
to enable the question to be put again on the third reading of a constitution alteration bill (the division bells had not been rung for the required time when the original vote was taken and an absolute majority was not established) (standing orders suspended);
to enable the second readings of certain bills which had been made orders of the day for the next sitting to be made orders of the day for the current sitting (by leave);
to enable the orders of the day on the second readings of certain bills which had been postponed to the next sitting to be made orders of the day for the current sitting (by leave);
the second and third readings of a bill following the realisation that the second reading had not been moved (by leave);
the committee (detail), report and third reading stages of a bill, following realisation that opposition amendments the Government had not intended to accept had been recorded as having been agreed to (standing orders suspended);
consideration in detail stage and third reading of a bill following realisation that intended amendments had not been moved (standing orders suspended);
resolution to lay aside a bill (standing orders suspended) in order to permit reconsideration of Senate amendments and the moving of further amendments;
resolution agreeing to Senate amendments to a bill following a message from the Senate that an earlier message forwarding the amendments had mistakenly included proposed amendments the Senate had not in fact agreed to (standing orders suspended);
to enable a division to be taken on a question, the Chair not hearing earlier the call for a division when the question was decided (by leave);
to enable the consideration of a report of the Committee of Privileges which had been made an order of the day for a particular date to be made an order of the day for the current sitting (by leave);
resolution referring a petition to the Committee of Privileges (by leave);
resolutions regarding reference of work to the Public Works Committee (seven days’ notice and by leave), including a resolution agreed to during the previous session (on notice);
resolution of earlier session (in force until amended or rescinded) referring certain matters to the Public Accounts Committee (on notice); and
resolution concerning committee membership (by leave).
The House has on occasion in effect rescinded an order of the House by ordering papers to be printed in substitution for papers previously ordered to be printed, no notice being given of the motions. When the House repeals or amends standing or sessional orders it in effect rescinds or varies previous orders of the House. Apart from amendments to standing or sessional orders the House has varied resolutions of the same session relating to the electoral redistribution of two States, standing orders having first been suspended to allow the motion to be moved. The House has also agreed to a motion revoking a decision about special arrangements for a future sitting.
A rescission motion is not needed to alter the decisions the House has made on the detail stage of a bill, as long as this is done before the third reading has been moved—see ‘Reconsideration of a bill before third reading’ in Chapter on ‘Legislation’.
On occasion, when a minor departure from the standing orders has inadvertently occurred, the House has agreed to a motion, moved by leave, which has had the effect of legitimising the defective proceedings, rather than rescinding and redoing them.
Resolution expunged from records
On 29 April 1915 the House agreed to the following motion:
That the resolution of this House of the 11th November, 1913 'That the honourable Member for Ballarat be suspended from the service of this House for the remainder of the session unless he sooner unreservedly retracts the words uttered by him at Ballarat on Sunday, the 9th November, and reflecting on Mr. Speaker, and apologizes to the House' be expunged from the Journals of this House, as being subversive of the right of an honourable Member to freely address his constituents.
The Speaker stated that, as it would be impossible to recall all relevant copies of Hansard and the Votes and Proceedings, the incident would be expunged from the record kept by the Clerk of the House.