Meetings of the Senate
This chapter describes how meetings of the Senate occur and the rules governing meetings.
Executive government's power to determine sessions
Section 5 of the Constitution provides:
The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.
After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs.
Under this section the Governor-General may terminate a session of the Parliament by proroguing it, and may then appoint the time for its next meeting. In practice these powers are exercised on the advice of the government.
When the Governor-General has specified a time for commencing a session of the Parliament, a formal opening of Parliament takes place. The procedures for the opening of Parliament vary according to whether the opening follows a prorogation of a session of Parliament, or a dissolution of the House of Representatives or of the two Houses under section 57 of the Constitution.
Parliaments and sessions
A new Parliament begins with the opening by the Governor-General on the first day the two Houses meet after a general election for the House of Representatives or for both Houses. The parliamentary term continues for three years after the date of the first sitting of the Houses, unless it is ended earlier by the dissolution of the House of Representatives or by the simultaneous dissolution of both Houses.
Within the term of each Parliament, there may be sessions. A new session is also opened by the Governor-General and begins on the first day of sitting following a prorogation of Parliament. To prorogue Parliament means to bring to an end a session of Parliament without dissolving the House of Representatives or both Houses, and, therefore, without a subsequent election. Prorogation has the effect of terminating all business pending before the Houses and Parliament does not meet again until the date specified in the proroguing proclamation or until the Houses are summoned to meet again by the Governor-General.
Section 6 of the Constitution provides:
There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.
The Parliament complies with the intent of this section in that each year it has two or three sitting periods of several months duration. However, it has not been the practice in recent decades to divide a parliamentary term into annual sessions by the annual use of prorogation, and consequently a session will normally last for the duration of the term of the House of Representatives.
Although Parliament was regularly prorogued in the past, until 2016 it had been prorogued without an accompanying dissolution on only four occasions since 1961. Two of these, in 1974 and 1977, were for the purpose of allowing openings of Parliament by the monarch during visits to Australia. On another occasion, in February 1968, Parliament was prorogued following the disappearance in the sea of Prime Minister Harold Holt in December 1967. On the fourth occasion, Parliament met for one day in November 1969 following an election for the House of Representatives on 25 October and was prorogued until the following March.
In March 2016, the routine motion for the next meeting of the Senate after the expected Easter break was amended to require the agreement of an absolute majority of senators for any recall earlier than 10 May, the scheduled Budget day and the last possible day for simultaneous dissolutions under section 57 of the Constitution. In response, the Parliament was prorogued at 5 pm on 15 April and summoned to meet at 9.30 am on 18 April 2016 for the purpose of reconsidering disputed legislation. The government's advice was published on the Governor-General's website.
In March 1993 the government restored the practice, not followed since the 1920s, of proroguing the Parliament before dissolving the House of Representatives for the purpose of a general election.
For further details, see below, under Meetings after prorogation or dissolution of House.
Place of meeting
In the proclamation fixing the time for the Parliament to meet at the beginning of a session, traditionally the Governor-General purports to direct the Houses as to the place of their meeting, although this is not authorised by the Constitution. Under its own resolution, the Senate meets in its chamber in Parliament House in Canberra. It is arguable that, under section 125 of the Constitution, the Senate may not meet other than in the seat of government established under that section. In 2001, however, the Senate resolved to meet in Melbourne to commemorate the first meetings there in 1901, but no legislative business was transacted at the commemorative meetings.
[update: The Senate provided for senators to participate in its proceedings by video link during the COVID-19 pandemic on the basis that remote participants could not vote nor count toward a quorum. However, the Procedure Committee also entertained the possibility of a meeting with “a small number of senators present (to constitute a meeting at the “seat of government”) and remote senators counted for the purposes of a quorum: Procedure Committee, First report of 2020, paragraph 1.5. See also Arrangements for extraordinary meetings, below.]
Opening of a new Parliament
The following procedures are followed for the opening of the first session of a new Parliament following a dissolution of the House of Representatives or of both Houses and a subsequent election.
A “Welcome to Country” ceremony is conducted by local Indigenous people.
At the hour (usually 10.30 or 11 am) named in the Governor-General's proclamation, the President takes the chair (except following a dissolution of the Senate when there is no President) and the Clerk of the Senate reads the Proclamation summoning Parliament.
The Governor-General appoints one or more persons, usually justices of the High Court, as deputies in relation to certain aspects of the opening of Parliament. The deputies attend and request the attendance of the Members of the House of Representatives in the Senate chamber. When the members of the House of Representatives have assembled in the Senate chamber, the Clerk of the Senate then reads the commission appointing the deputies.
The senior deputy then announces that after members of the House of Representatives, senators representing the territories and any new senators appointed to fill casual vacancies have been sworn and the House has elected a Speaker, “the causes of His/Her Excellency calling this Parliament will be declared by him/her in person at this place” later that day. The deputy then retires and subsequently proceeds to the House of Representatives to administer the prescribed oath or affirmation to members of that House.
[update: The deputy (or senior deputy, if there is more than one) declares the Parliament open and announces that the Governor-General will attend in person later in the day to declare the cause of calling the Parliament together. The members of the House then depart, to be sworn and to choose their Speaker. Any senators taking their seats for the first time since their election (or since being chosen to fill a casual vacancy) are then sworn and, if the office is vacant, the Senate elects a President.]
Should there be no President in office the senior deputy administers the oath or affirmation of allegiance to senators taking their seats for the first time
(for an ordinary general election the territory senators and any appointees to casual vacancies).
If there is a President in office, the President ordinarily administers the oath or affirmation to such senators; the commission to administer the oath or affirmation is usually given by the Governor-General to the President following the election of a senator to that office.
The President (or the Clerk if there is no President) tables the certificate of election of territory senators and certificates of the filling of vacancies, if any. Senators taking their seats for the first time then come to the Table to be sworn or make an affirmation and to sign the oath or affirmation form.
Except at openings of Parliament subsequent to a dissolution of both Houses, [update: when all senators must be sworn,] it is normally the case that the only senators taking their seats for the first time and requiring to be sworn at the opening of Parliament are senators representing the territories and senators appointed to fill casual vacancies. [update: If the opening coincides with the first sitting day after 30 June following a normal half-Senate election, all state and territory senators chosen at that election must be sworn: for example, 2/7/2019, J.5.] Procedures for the swearing of senators newly elected to fill periodical vacancies are described below and in Chapter 6, Senators.
If the office of President is vacant on the opening of Parliament, the Senate then proceeds to elect a President. After the President has been elected, the Leader of the Government in the Senate announces when and where the Governor-General will receive the President.
The sitting of the Senate is then suspended until such time as the Governor-General has appointed to declare in person the reasons for calling the Parliament together (that is, to make the opening speech).
At the designated time (usually 3 pm) the Senate resumes and the Governor-General is announced. The Governor-General then summons the Members of the House of Representatives to the Senate chamber.
When the members of the House of Representatives have assembled in the Senate chamber the Governor-General delivers the opening speech, in which the causes of calling the Parliament together are declared. The speech, which is composed by the ministry, usually reviews recent events and gives a summary of the government's legislative program for the session.
Upon completion of the reading of the speech by the Governor-General, the President and the Speaker each receive a copy of the speech from a member of the Governor-General's staff. The Governor-General then retires.
Opening of a new session of an existing Parliament
The following procedures apply to the opening of Parliament following a prorogation of the Parliament not accompanied by a dissolution of the House of Representatives or of both Houses.
When there is a President in office, on the first day of a new session of an existing Parliament the President takes the chair at the appointed hour and the Clerk reads the proclamation which fixes the date for the assembling of Parliament following its prorogation. The arrival of the Governor-General is then announced. The certificate of election or choice of any senator whose term of office has begun since the last sitting of the Senate is then laid on the Table by the Clerk, and each such senator then makes and subscribes the oath or affirmation of allegiance. The procedure which then follows is the same as at the opening of a new Parliament following the arrival of the Governor-General (see above).
If there is no President in office at the opening of a new session of an existing Parliament the Senate is summoned by proclamation to meet at an earlier hour than the time fixed in the proclamation for the meeting of the members of the House of Representatives. At the hour appointed, members of the Senate assemble in the Senate chamber and the Clerk reads the proclamation. The arrival of the deputy of the Governor-General is then announced. The deputy produces the commission from the Governor-General, which is then read by the Clerk. The deputy then informs the Senate that the Governor-General will at a future time declare the cause of calling Parliament together.
The certificate of election or choice of any senator whose term of office has begun since the last sitting of the Senate is then laid on the Table by the Clerk, and the deputy administers the oath or affirmation of allegiance to each such senator. The deputy then retires and the Senate proceeds to elect a President.
The proceedings which then follow are the same as at the opening of a new Parliament following the election of the President when that office is vacant.
Opening by the monarch
Standing order 4 provides that when the monarch is present in Australia and intends to indicate in person the cause of the calling together of Parliament, references to the Governor-General in those standing orders relating to the opening of Parliament should be read as references to the monarch. The monarch has opened the Parliament of the Commonwealth of Australia and delivered the opening speech on three occasions: 15 February 1954, 28 February 1974 and 8 March 1977.
Before the Governor-General's speech is reported to the Senate formal business may be transacted, petitions may be presented and notices given, and documents laid on the table. This standing order embodies a traditional assertion of the right of the Senate to transact some business before the opening speech is considered. The President then reports to the Senate the speech of the Governor-General. A motion for an address-in-reply to the speech may then be made, or the consideration of the speech may be made an order of the day for a future time.
While precedence is given to the address-in-reply debate until the adoption of the resolution, the standing orders permit business of a formal character to be transacted. Formal business which may be entered upon includes questions (without notice and on notice), the fixing of days and hours of meeting, the appointment of standing committees, motions for the printing of documents and matters which come within the category of Business of the Senate. A matter of privilege may also be raised. The standing order is also usually suspended to allow other business to be transacted before the address-in-reply is passed. [update: For an attempt to amend the suspension motion to constrain the consideration of government business, see 2/7/2019, J.13-14.]
Standing order 194(2) exempts the debate on the address-in-reply from the usual requirements concerning relevance and anticipation and permits debate on any matter.
Amendments may be moved to the motion for the address-in-reply, and on several occasions have been agreed to.
When the address has been agreed to, a motion is made that it be presented to the Governor-General by the President and any senators who may wish to accompany the President. This motion is usually moved by the Leader of the Government in the Senate. After the motion is carried, the President informs the Senate when the Governor-General is able to receive the address, and invites senators to be present on the occasion.
At Government House, the usual place for presenting the address, the President and accompanying senators and officers are received by the Governor-General. The President reads the address and presents it to the Governor-General who makes a reply. The President then introduces accompanying senators and officers to the Governor-General. At the earliest convenient opportunity the President reports to the Senate the presentation of the address and the reply of the Governor-General.
Swearing of senators elected to periodical vacancies
Periodical elections are almost invariably held together with elections for the House of Representatives and only rarely does their timing permit newly elected senators representing the states to be sworn at the subsequent opening of Parliament. Senators representing the territories, like members of the House of Representatives, are sworn in at the opening of Parliament, which must take place not later than 30 days after the return of the writs. Senators elected to represent the states at a periodical election do not begin their term of office until the first day of July following that election. This means that the date on which they are sworn and first take their seats does not normally coincide with the opening of a session of Parliament. [update: Those events coincided on the opening of the 46th Parliament (see 2/7/2019, J.5), having previously occurred only on the opening of the 3rd, 4th and 5th Parliaments: 20/2/1907, 1/7/1910 and 9/7/1913, respectively.]
In this situation there is no President in office because, pursuant to standing order 5, the office of President becomes vacant “on the day next before the first sitting day of the Senate after the 30th day of June following a periodical election”.
The Senate meets at the time appointed. The Governor-General, or the deputy appointed by the Governor-General to administer to newly-elected senators the oath or affirmation of allegiance, is announced. If a deputy is appointed, the commission to administer the oath or affirmation is produced and read by the Clerk.
The certificates of election for the members elected to fill periodical vacancies are laid on the table by the Clerk and each such senator is then sworn. In addition to being sworn or making the affirmation, senators are required to sign the Senators' Roll on the day on which they take the oath or affirmation of allegiance. The Senators' Roll is kept by the Clerk, and shows the names of the senators chosen for each state, the dates of election and of taking the oath, and the date and reason for ceasing to be a senator.
After the swearing of newly-elected senators the Governor-General, or the deputy, as the case may be, retires and the Senate proceeds to the election of a President.
Following the election of the President, and on resumption of the sitting after the President is presented to the Governor-General, the President announces the presentation and reports the Governor-General's reply. Then the business of the Senate may be proceeded with in the ordinary course, including the appointment of the Deputy President and Chair of Committees.
Recent practice has been for the Governor-General personally to administer the oath or affirmation to senators.
Proposals to change the opening of Parliament
The opening ceremony is not constitutionally required, and is otherwise objectionable in principle, for example, by conferring non-judicial functions (as deputies of the Governor-General) on judges and by involving the Governor-General in contentious and partisan statements composed by the prime minister in the opening speech. It is based on adaptions of British practice, which is itself constitutionally outmoded, without regard to Australia's constitutional arrangements.
Such a consideration leads to the further reflection that the constitutional provisions giving the executive government the power to dispense temporarily with the sittings of the Parliament are outmoded.
Proposals to change the opening ceremony have been mooted many times.
Prior to the first meeting of the Parliament following the election in March 1993, the Prime Minister announced that the government intended to alter the opening ceremony, so that the two Houses would meet with the Governor-General in the Great Hall to hear the opening speech. Proposals of this kind had been mooted before, but, as with the 1990 election, nothing was done to put them into effect in time for the opening. The change did not occur, notwithstanding that procedures for the modified opening were devised, and the opening was in accordance with the old procedures.
The reason for this was that the opening procedures are contained in the standing orders of each House, and it would have been necessary for each House to suspend its standing orders and agree to the modified procedures after it first met in the morning, and after the members of the House of Representatives and the territory senators and any senators filling casual vacancies had been sworn. This could have been brought about in the House of Representatives by the government's control of that House, but the government could not be sure of carrying the necessary motion in the Senate, or of carrying it in time for the meeting with the Governor-General in the afternoon. The proposal was therefore abandoned.
The deliberation and agreement of the two Houses will be required to change the procedure, as occurred in 2010 when both Houses supported the inclusion of an Indigenous “Welcome to Country” ceremony before openings of Parliament. Such a ceremony had preceded the opening in 2008.
Sittings and adjournment of the Senate
When a Parliament or a session of Parliament has been opened as described above, the Senate determines its own sittings.
A sitting of the Senate begins when the Senate first meets after an adjournment, and concludes when the Senate again adjourns, either till a specified time or a time to be fixed by a specified procedure. The bells are rung for five minutes prior to the time appointed for the commencement of a sitting, and the President then takes the chair to begin the sitting (SO 49). Before proceeding to business the President recites the prayer prescribed by standing order 50, followed by an acknowledgement of country.
Except where the standing orders provide for the President to adjourn the Senate without putting a question from the chair, the Senate adjourns only by its own resolution (SO 53). Where the Senate is to meet again at a time specified by the standing orders or by any special order, the Senate simply resolves to adjourn. If the time of the next meeting has not been so fixed, a resolution is passed fixing the time before the question for the adjournment is proposed.
Normally the Senate adjourns to a specified time, which has been fixed by an order setting a schedule of sitting days or an order setting the next meeting day at the end of a long adjournment. When adjourning for a period of time longer than normal, for example, at the beginning of the summer and winter long adjournments, the Senate may adjourn to a specified time or such other time as may be fixed by the President. [update: The authority given to the President under such “special adjournment” or “next meeting” resolutions has been used to enable the Senate to meet on an earlier day than scheduled (on the advice of the executive government), or at a different time on a day it is scheduled to meet (at the independent discretion of the President). It has not been regarded as enabling the President to defer entirely a sitting day set by order of the Senate, the authority for which must be found elsewhere. The relevant principles are described, below.]
In exercising the power to fix another time of meeting, the President may exercise an independent discretion to change the time of meeting for any reason related to the orderly conduct of Senate proceedings. The President may set an earlier or a later time of meeting than that specified, and may alter a time of meeting which has been set. In exceptional circumstances [update: – whether a special adjournment resolution is in effect or not – ] the President may postpone a meeting of the Senate. For example, on 22 May 1973 the time appointed was 11 am, but the Canberra airport was closed due to fog and 20 senators were unable to land. With the concurrence of the party leaders, President Cormack ordered that the meeting of the Senate be postponed until 3 pm. There are also precedents for the President delaying the commencement of sittings where official functions have extended beyond the time fixed for the meeting of the Senate. On 17 September 2001 the President altered the time of meeting from 12.30 pm to 2 pm to allow senators to attend a memorial service for victims of terrorist attacks in the United States.
[update: In March and April 2020 the Senate adopted resolutions authorising the President, with the concurrence of the Leaders of the Government and Opposition in the Senate, to alter the date and time of sitting, to defer or bring forward the next meeting date: 23/3/2020, J.1562; 8/4/2020, J.1566, J.1601-2; 12/5/2020, J.1607. This was the first time the Senate had explicitly provided a mechanism for deferring a scheduled sitting day. However, it was not used before it expired.
The commencement of sittings on 10 June 2020 was delayed after a request to do so was made on behalf of all senators, consistent with the principle that the Senate controls its own meetings: 10/6/2020, J.1755. The same principle provided the authority for setting aside a scheduled period of sittings during the COVID-19 pandemic, following advice from the Commonwealth Chief Medical Officer. The request that the sittings not take place was made by leaders representing more than three quarters of the Senate, without whom it would not have been possible to establish a quorum. The President noted that “this high threshold of such action being taken only when a quorum would not be possible protects the autonomy of the Senate to determine its own meetings” : SD, 24/8/2020, p.3703-6.]
In exercising the power to alter the time of meeting the President also by convention acts upon the advice of the executive government; a statement of this convention was made by President Givens in 1916. The convention operates only for the consideration of government business and not for the political convenience of the government, for example, in deciding upon an early general election. In other words, it is not a substitute for the power of prorogation (see below). In 1972 the President, at the request of the Prime Minister, put senators on provisional notice for a meeting of the Senate on 4 August. The purpose of the proposed sitting was to deal with an emergency arising from a strike in the oil industry. On 3 August the Prime Minister advised the President that, in the light of developments that had taken place, he did not seek a meeting on 4 August and senators were so advised. Subsequently, the Senate met as originally planned, namely, 15 August 1972.
Any request to the President to fix a time of meeting pursuant to an adjournment resolution is overriden by a request by an absolute majority of senators under standing order 55.
For adoption of a different approach to commencing an earlier meeting of the Senate for commemorative purposes, see below under Summoning the Senate when not sitting.
An adjournment resolution which empowers the President to change the time of meeting usually also empowers the Deputy President to act for the President if the President is not available. Where both the President and the Deputy President are to cease to be senators during a long adjournment, a special resolution is passed empowering the holders of those offices, as named persons, to exercise the power of altering the time of meeting.
The adjournment of the Senate may be moved at any time by or on behalf of a minister, but such a motion may be moved only when there is no other business before the chair, so that debate on a matter under consideration must be adjourned before the adjournment of the Senate is moved.
A senator who is not a minister may not move the adjournment of the Senate except by leave of the Senate or pursuant to a suspension of standing orders.
At the time specified by standing order 55 for each sitting day, the President proposes the question that the Senate do now adjourn, without a motion being moved (SO 54). If the Senate is in committee of the whole at that time, the Chair of Committees leaves the chair and reports to the Senate, and on that report being made the President proposes the question for the adjournment.
The question that the Senate do now adjourn is open to debate, and matters not relevant to the question may be debated. This means that senators speaking to the motion may refer to any matters, and the question for the adjournment is one of the principal opportunities for senators to raise matters they wish to debate.
A speaking time limit of 10 minutes per speaker applies except in the open-ended adjournment debate on Tuesday when Senators may speak for 5, 10 or 20 minutes [update: From the first sitting day in 2020, the speaking times on the adjournment debate were specified as follows:
||5 or 10 minutes
||5 or 10 minutes
There are, however, limitations on the debate. The normal rules of order, for example, relating to offensive words, apply to the debate. It is not in order to anticipate debate on a matter on the Notice Paper, although this rule is interpreted liberally, as explained in Chapter 10, Debate. It is also not in order to attempt to revisit a debate adjourned or concluded earlier in a sitting. It has been ruled, however, that this does not prevent a senator during the adjournment debate seeking an explanation about a matter relating to a debate earlier in the sitting. Unconcluded proceedings in a committee cannot be debated.
The President adjourns the Senate without putting the question at the conclusion of debate on Tuesdays, and on other days at the conclusion of debate, at the expiration of
40 minutes [update: the total time allotted] or at the time specified, whichever is the earlier.
When a minister moves the adjournment, this is normally by agreement. If the adjournment were moved by a minister at a time not specified by order of the Senate, and it appeared that there was opposition to the adjournment, the chair would be obliged to put the question for the adjournment. This would prevent the Senate being adjourned against its will, and would be in keeping with standing order 53(1).
The question for the adjournment of the Senate may not be amended.
On 12 September 1972 President Cormack ruled that the question for the adjournment at 10.30 pm be not put until a point of order had been resolved. He considered that it was proper that there should reside in the chair a discretion to delay the question for the adjournment until a point of order had been determined, especially when it involved a serious matter of the conduct of a senator. This ruling is supported by standing order 197(3), which provides that all questions of order, until decided, suspend the consideration and decision of every other question. The President further ruled that, as the time taken after 10.30 pm was outside the normal debating time and was for the purpose of finalising the matter of order, the speaking time of the senator affected would be calculated to 10.30 pm.
An order may be made that the Senate adjourn at a certain time. When the specified time is reached, the President interrupts the debate then proceeding and adjourns the Senate forthwith to the next sitting day.
[update: Arrangements for extraordinary meetings
On 23 March 2020, during the onset of the COVID-19 pandemic, the Senate agreed to an order that suspended its scheduled program of sittings and estimates hearing until August, but provided for flexibility in further altering its sitting program and its manner of meeting: J.1562.
Under the order, the President, with the concurrence of the Leaders of the Government and Opposition in the Senate, was authorised to alter the date and time of sitting, to defer or bring forward the next meeting date. This was the first time the Senate had explicitly provided a mechanism allowing the President to defer a scheduled sitting date. An absolute majority of senators could also require the President to fix an earlier meeting date under standing order 55(2): see below, under Summoning of the Senate when not sitting.
The other interesting aspect of the order was that – again with the agreement of the two leaders – it empowered the Senate to meet “in a manner and form not provided for in the standing orders” and delegated to the Procedure Committee the power to determine “the rules and orders necessary to constitute such a meeting”. This mechanism was intended to deal with circumstances in which urgent legislation was required, but an ordinary sitting was impossible or impractical.
The resolution did not attempt to define the ways in which such a meeting might depart from the standing orders. It was interpreted as broadly empowering the Senate to change its rules and orders, subject to Constitutional constraints. There are several relevant Constitutional provisions. These include:
- the power of each House to make its own rules and orders (section 50);
- the requirement for “the presence” of a quorum “to constitute a meeting of the Senate for the exercise of its powers” (section 22)
- the requirement that every senator is entitled to vote on every question (section 23)
- the apparent requirement that the Parliament meet at the seat of Government (section 125).
Put simply, the questions that arise should the Senate need to meet in extraordinary circumstances involve determining how these requirements may be met, including the extent to which the physical presence of senators in Canberra is an absolute requirement. It might have been expected that the “rules and orders necessary to constitute” an extraordinary meeting would deal with the remote participation of senators. The fact that the two Houses had each long-since made orders enabling their committees to meet by means of “electronic communication” provided a logical starting point. For the Senate, standing order 30(3) provides a mechanism for such meetings, and the necessary safeguards:
(3) A committee is authorised to hold meetings by electronic communication without the members of the committee or witnesses being present in one place, provided that:
(a) when a committee deliberates, members of the committee constituting a quorum are able to speak to, and hear, each other contemporaneously;
(b) when a witness gives oral evidence, members of the committee constituting a quorum are able to hear the witness contemporaneously and to put questions to the witness in each other’s hearing; and
(c) the chair of such a meeting takes care to ensure that a quorum is maintained during the meeting and that the standing orders and rules of the Senate are observed.
The order passed by the Senate was interpreted as authorising the Procedure Committee to devise rules of this nature to apply to Senate meetings. Other possible rules might deal with proxy or party votes, which feature in some other Australian legislatures but have not to date been adopted by the Senate. As the most likely catalyst for such a meeting would be the need to deal with emergency legislation, the Senate would no doubt have had regard to the approach taken by the House of Representative should it be required to meet under a similar order passed before the House adjourned on 23 March.
The stance taken in discussions about the possible use of the order was that it would be untenable to allow an overly restrictive interpretation of these requirements to prevent the Parliament meeting in response to unprecedented circumstances. One of the purposes of the rules for any extraordinary meeting would be to ensure that the principles embodied in the relevant Constitutional provisions are observed, but are not interpreted in a way which obstructs the Senate performing its core functions.
The order was renewed when the Senate met for a single-day’s sitting at the request of the two leaders on 8 April (J.1466, J.1501-2), however, this aspect of it was not used and it was not readopted once the Senate resumed a comparatively normal program of sitting weeks in May and June 2020.
Right of senators to attend meetings
During the COVID-19 pandemic the President made a statement about the risk of executive-imposed travel restrictions and quarantine requirements constraining the ability of senators to undertake their parliamentary duties. He noted the ancient right of those elected to attend and participate in parliament, underpinned in Australia by constitutional design intended to ensure that the Senate, in particular, can undertake its functions with an appropriate degree of independence. He noted that:
Unilateral actions by executives—whether Commonwealth, state or territory—that impede the performance of Commonwealth parliamentary functions are problematic from a constitutional perspective. This remains the case even where, as is the case with border restrictions and quarantine requirements imposed at a state and territory level, that action is founded on or in aid of genuine public health advice and goals.
While unilateral executive action ran the risk of improperly interfering with the parliament, the President went on to note that this “may be largely avoided where the requisite action, in this case a response to the public health advice, is developed cooperatively by the institutions concerned”: SD, 24/8/2020, p.3703-6.
The Leaders of the Government and Opposition in the Senate proposed a resolution affirming the right of the Senate to determine its own meetings and the rights of senators to attend: 3/9/2020, J.2298–99. In agreeing to the proposal the Senate called on all executive governments and agencies “to have appropriate regard to these matters in devising and implementing public health measures and, wherever possible, to do so in consultation with representatives of the Senate.” Consequential matters were also referred to the Procedure Committee: see second report of 2020.
By the time sittings commenced in 2021 it had become routine for senators to attend parliament despite “lockdowns” in their home states under arrangements agreed between the Parliament and Australian Capital Territory public health officials, often including a COVID-19 test regime.]
Summoning of the Senate when not sitting
Apart from the power of the President to alter the specified time of the next meeting, the standing orders require the President to summon the Senate to meet during an adjournment at the request of an absolute majority of senators, represented, in the case of senators who are members of a party, by their party leaders or deputy leaders.
This provision began its life as a special order first agreed to in 1967, was regularly incorporated in resolutions specifying the time of the next meeting, was incorporated into sessional orders in 1985, and finally included in the new standing orders adopted in 1989.
Meetings of the Senate under this provision were held on 20 June 1967 to consider the disallowance of postal and telephone charges regulations, and 9 July 1975 to consider the government's overseas loans activities. A meeting on 21 January 1991 was called to consider the Gulf war at the request of the government when it was apprehended that party leaders representing an absolute majority of senators would ask the President to summon the Senate. A meeting of the Senate was called on 7 November 2003, within a period of sittings, under this provision, to deal with urgent legislation. A similar meeting was called on 3 November 2005 (a day on which estimates hearings were also held) to consider legislation relating to terrorism.
On 1 March 2011, the procedure was used to facilitate a meeting several hours in advance of the scheduled time to enable simultaneous observances on both sides of the Tasman Sea of the passage of a week since the Christchurch earthquake. Although the President has an independent discretion to alter the Senate's meeting time and has done so on the advice of the executive government, the discretion has only been used to delay meetings for reasons relating to the orderly conduct of the Senate's business. As there was no such imperative on this occasion, it was considered more appropriate to rely on these provisions.
A request lodged on 19 April 2016 in unusual circumstances was withdrawn later the same day when it became clear that the sitting proposed for 20 April 2016 would not be required. The circumstances were that a new session had commenced on 18 April to deal with specified legislation and to provide for the Budget to be handed down a week earlier than proposed, in expectation of the Houses being dissolved under section 57 of the Constitution. The request was submitted in anticipation of an opposition motion to provide for truncated budget estimates hearings not being reached in time, and was withdrawn when it was.
Meetings after prorogation or dissolution of House
Under section 5 of the Constitution, the Governor-General may by proclamation prorogue the Parliament. Prorogation, on the conventional interpretation, has the effect of terminating a session of Parliament until the date specified in the proclamation or until the Houses are summoned to meet again by the Governor-General, and of terminating all business pending before the Houses.
Prorogation is regarded as dispensing with sittings of the Senate which have been fixed by order of the Senate. Orders of the Senate setting its sitting days are regarded as operating only so long as the parliamentary session continues and as having no effect if a prorogation intervenes, unless express provision is made for sittings after prorogation (see below). Similarly, orders of the Senate directing committees to meet, for example, for estimates hearings, do not operate if a prorogation intervenes. [update: For example, in 2019 the early Budget led to considerable speculation about the effect of a possible prorogation on the estimates timetable. Advice was given that the scheduled program of hearings would be swept aside if prorogation occurred before the hearings commenced. If hearings were underway when prorogation took effect, they could continue during that day, subject to any decision of the committee to adjourn. Five scheduled days of hearings occurred, and parliament was prorogued early in the morning before hearings on the sixth day commenced, so that the hearings scheduled for that day did not take place.] Most committees have the power to meet after a prorogation and could meet if they choose to do so.
The Senate has not met after a prorogation and before the opening of the next session by the Governor-General. The question of whether it could do so has been the subject of differing opinions. These were contained in documents presented to the Senate on 19 and 22 October 1984. The documents were:
- Letter from the Attorney-General (Senator Greenwood) to the President of the Senate (Senator Cormack), 24 October 1972.
- Opinion by Mr R.J. Ellicott, when Solicitor-General.
- Opinion by Professor C. Howard, University of Melbourne, March 1973.
- Opinion by Professor G. Sawer, Australian National University.
- In the matter of the Power of the Senate or its Committees to sit after dissolution or prorogation—Opinion by the Solicitor-General, Dr G. Griffith, 9 October 1984.
- The Power of the Senate or Its Committees to meet after a dissolution of the House of Representatives or a prorogation of the Parliament and the publication of a Committee Report when the Senate is not sitting—Paper by Senate Clerk-Assistant (Committees), Mr H. Evans, 18 October 1984.
The generally accepted view is that a prorogation, as well as terminating a session and pending business, prevents the Houses of the Parliament meeting until they are summoned to meet by the Governor-General or they meet in accordance with the proclamation of prorogation. The opinion of Professor Howard, however, is that a prorogation does not prevent the Senate meeting. The basis of this view is that, while a prorogation prevents the Parliament as a whole meeting for legislative purposes, under Australia's constitutional arrangements the Senate may meet to transact its own business as it chooses.
The provisions in standing order 55, relating to the calling of the Senate to meet at the request of an absolute majority of senators, apply only to periods when the Senate is adjourned, as their history and their context in the standing orders indicate.
A prorogation does not, however, prevent Senate committees meeting if they are authorised by the Senate to do so. It may appear paradoxical that the Senate may authorise its committees to do what it cannot do itself, but the generally accepted view is that this is one of the powers of the Senate under section 49 of the Constitution. Most Senate committees are empowered by the Senate to meet after a prorogation.
Under section 5 of the Constitution, the Governor-General may also by proclamation dissolve the House of Representatives.
Before 1928 it was the practice to prorogue the Parliament prior to a dissolution of the House of Representatives. This is also the practice in the United Kingdom. From 1928 to 1993 dissolutions of the House of Representatives occurred without a preceding prorogation. Due to an error in the wording of the dissolution proclamation, which arose from a misunderstanding of the procedures, the dissolution proclamations during that period included a phrase purporting to discharge senators from attendance, a phrase without any constitutional basis. The matter was the subject of correspondence between the Clerk of the Senate and the Official Secretary to the Governor-General, which was tabled in the Senate on 14 August 1991. At the 1993 general election the practice of proroguing the Parliament before a dissolution of the House of Representatives was restored.
The question arises whether the Senate may meet after a dissolution of the House of Representatives in the absence of a prorogation of Parliament. This question was also the subject of the various opinions tabled in the Senate on 19 and 22 October 1984. The government's legal advisers attempted to argue that the inclusion in a dissolution proclamation of the phrase purporting to discharge senators from attendance was the equivalent of a prorogation, ignoring the fact that that phrase was an error arising from confusion about the wording of previous proclamations. The Senate, however, concluded that there is nothing to prevent it meeting after a dissolution of the House of Representatives. A resolution was passed on 22 October 1984, in effect asserting the Senate's right to meet at that time. The resolution declared that, should the Senate meet after a dissolution of the House, the powers, privileges and immunities of the Senate under section 49 of the Constitution would be in force in respect of that meeting. The resolution also asserted the right of committees empowered by the Senate to do so to meet after a dissolution of the House.
The Senate has not met during a period when the House was dissolved, but Senate committees have often done so, and have also often met after a prorogation. Proceedings at such meetings have included the hearing of evidence in public session. Committee reports have also been presented.
If the Senate were to meet after a prorogation, the business before the Senate would be the business pending at the prorogation, and it would be for the Senate to determine which business it should pursue. The Senate's agenda, and those of its committees, are therefore regarded as continuing until the day before the opening of the next session.
Business in a new session of an existing Parliament
The conventional interpretation is that prorogation has the effect of terminating all business before the Houses but exceptions have been recognised. Moreover, procedural changes since 1977, the last time there was a new session within an existing Parliament, have modified traditional practices. In particular, revisions to standing orders in 1989 and 1997 transferred into standing orders much business that had previously been dealt with by sessional orders that needed to be reinstated or reviewed at the commencement of each new session.
Matters previously covered by sessional orders include the establishment of the legislative and general purpose standing committees, the hours of meeting on each day and the detail of the routine of business, which now includes fixed times for particular business, such as questions without notice at 2 pm each day. Consequently, for the new session commencing at 9.30 am on 18 April 2016, once the opening proceedings had been concluded in accordance with the applicable parts of standing orders 1 to 3, proceedings followed the times of meeting and routine of business set out in standing orders 55 and 57.
Certain business on the Notice Paper, including bills, notices of motion, contingent notices and questions on notice, lapses on the eve of the new session, along with orders fixing sitting days and committee meetings, and any sessional orders. Any of these may be reinstated or given again. Other business does not lapse; for example, committees established for the life of the Parliament and orders for committees to report at a future date within the Parliament.
Current practice is for a Notice Paper to be published on the first day of a new session of an existing Parliament to record continuing committee business, as well as continuing orders of the Senate not yet included in the standing orders volume, and any orders of the Senate having effect at a time in the new session, including orders for documents and for the presentation of committee reports. For the purposes of section 57 of the Constitution, it is also important that the Notice Paper continues to include a record of bills negatived in the previous session.
For further details on the effect of prorogation on committees, see Chapter 16.
Times of meeting
The days and times of meeting of the Senate are specified in standing order 55. It provides for meetings on Monday to Thursday of each week. The times of meeting are 10 am on Mondays,
12.30 pm on Tuesdays [update: midday on Tuesdays (after a procedural change in effect from 2018)] and 9.30 am on other days.
There are normally three periods of sittings during a year, from February to March, May to June and August to December, with adjournments in between.
This pattern of sittings specified by the standing order is normally subject to some alteration in each period of sittings by a special order. At the beginning of each period a resolution specifies the days of sitting; usually the starting times are as provided by the standing order. It is now not normal for the Senate to sit on Fridays, which are reserved for committee meetings.
Suspension of sittings
During any sitting there are
usually [update: occasionally] suspensions of the sitting, which means that the sitting is temporarily interrupted and resumes at the point in the routine of business at which the Senate left off. A suspension of a sitting may be followed by business taken at a fixed time, such as question time at 2 pm. A suspension of a sitting is therefore to be distinguished from an adjournment, which ends a sitting, so that when the Senate sits again the routine of business is commenced anew. Standing order 55 provides [update: Until the end of the 2019 sittings, standing order 55 provided] for suspensions of sittings at particular times.
A sitting may also be suspended by a motion moved and carried when there is no other business before the chair. A minister may move such a motion without notice under standing order 56, but a senator who is not a minister may not move such a motion except by leave of the Senate or pursuant to a successful motion for the suspension of standing orders.
Occasionally a sitting is suspended over one or more days so that the Senate can resume on another day at the point in its business where it left off, without beginning the routine of business anew. For example, the sitting of the Senate which began at 10 am on Thursday, 12 November 1992 continued until 6.11 am on Friday, 13 November, because of protracted consideration of the appropriation bills in committee of the whole. A motion was then carried to suspend the sitting of the Senate until 2 pm on Monday, 16 November. When the Senate assembled on Monday the sitting continued, which meant that the consideration of business was resumed at the place in the routine of business where it was left off, and consideration of the appropriation bills proceeded. The sitting continued until 12.41 am on Tuesday, 17 November. A motion to suspend the sitting until 9.30 am that morning was then carried. When the sitting resumed consideration of the appropriation bills continued until concluded that afternoon. Similarly, the sitting which began on Thursday, 16 December 1993 continued on 17, 18, 20 and 21 December, with protracted proceedings on the Native Title Bill 1993, and the sitting of 9 July 1998 continued on 10 and 11 July 1998, mainly because of telecommunications legislation. In some instances the Senate has provided by order in advance for the suspension of its sittings.
The advantage of suspending a sitting instead of adjourning is that the Senate can continue with government business without interruption by other items in the routine of business, such as question time. On 17 November 1992, however, a special order was made to allow for question time on that day. If used excessively by a determined majority, the procedure could be severely restrictive of the rights of individual senators. The suspensions have been rationalised by the need to pass the appropriation bills and other urgent legislation, and the fact that the Senate was not originally scheduled to sit on the extra days, so that no scheduled sitting days were lost so far as other business was concerned.
effect on delegated legislation
The extension of one sitting over three days raises the question of the effect of statutory provisions for the tabling of delegated legislation. Those provisions require delegated legislation to be tabled in the Senate within a specified number of sitting days, usually 6 sitting days, and legislation which is not tabled within the specified time ceases to have effect. It has not been determined whether a sitting extending over more than one day is one sitting day for the purposes of those statutory provisions. Departments responsible for forwarding delegated legislation for tabling have been advised that to avoid any doubts they should assume that the days to which sittings are suspended are separate sitting days for the purposes of statutory tabling requirements.
[update: The uncertainty was resolved when the Acts Interpretation Act 1901 was amended in 2018 to insert a common-sense definition of sitting day so that a sitting extending over more than one day is counted as a single day for tabling and disallowance purposes: see s. 2M; see also Chapter 15, under Disallowance.]