Demise of the Crown
In the early hours of the morning of 9 September 2022 (Australian time), His Excellency the Governor General formally announced the death of Her Majesty the Queen, Elizabeth the Second. Over subsequent days, governments and parliaments across Australia implemented plans to observe her passing and to proclaim the accession to the throne of her son and heir, His Majesty the King, Charles the Third. Although there are traditional and ceremonial elements, the succession occurs automatically in accordance with Australian law.
The Prime Minister announced that the House of Representatives would not sit again until the end of a 14-day period of national mourning. To give effect to the same arrangement for the Senate, the Leaders of the Government and Opposition in the Senate wrote to the President requesting that the sitting week beginning 12 September be postponed, using the procedure invoked to set aside sittings scheduled in August 2020.
With a national day of mourning set for 22 September, the Prime Minister announced that both Houses would be recalled the following day to consider condolence motions with respect to the death of the Queen, and for additional days the following week to resume normal parliamentary business. Presumably the recall of the Senate will occur in accordance with standing order 55. Committees did not meet on 9 September, but resumed their work the following week.
The Senate commenced debate on the Restoring Territory Rights Bill 2022; the latest private members’ bill seeking to restore the right of the assemblies of the Australian Capital Territory and the Northern Territory to legislate on voluntary assisted dying. In August 2018 a similar bill was defeated on a close vote after extensive debate: see Bulletin 327.
The main focus of government business time was the Climate Change bills, which legislate for a 43% reduction in carbon emissions by 2030 as part of a commitment to net zero emissions by 2050. On 6 September the Manager of Government Business moved that the bills be considered urgent, the first step in setting up a ‘limitation of debate’ under standing order 142; colloquially, a guillotine. The procedure has not been used in full since 2014, although elements of the standing order are invoked in ‘time management’ motions, moved on notice, by leave or after suspending standing orders. There is detailed information about the use of these procedures on the Senate’s website, under limitation of debate.
If the Senate agrees that bills be considered urgent, this enables a minister to move a motion to allot time for particular stages or for all remaining stages of the bill, after which the necessary questions are put without further debate. Despite the declaration of urgency, the government gave notice of motions to manage the debate: providing additional hours on 7 September, and requiring the final stages to be determined before question time the next day. Two attempts by the Opposition to give the bills priority but without a guillotine were lost on close votes on 8 September.
Hours of meeting and routine of business
On 8 September the Procedure Committee reported on a government proposal to vary the Senate’s hours of meeting and routine of business. The proposal responds in part to a recommendation of the Jenkins Review, that the Houses review their sometimes long and irregular hours to strike a better balance between wellbeing and parliamentary business.
The committee recommended that the Senate adjourn earlier on Mondays and provide additional times for business to proceed on a ‘no divisions’ basis, reducing the need for senators and staff to attend into the evening, unless directly involved in the matters being debated. The committee also agreed that sittings should start at 9 am on Wednesdays and Thursdays. Private senators’ bills will be dealt with on those mornings, with Monday mornings reverting to government business time.
Finally, the committee recommended procedural changes for matters of public importance and urgency motions, so that two such matters may be dealt with each day for 30 minutes each, and that these be rostered by informal agreement between party whips and others, rather than being subject to a daily ballot.
The Senate adopted the recommended changes, with effect from the first sitting day in October.
Orders and explanations
On 6 September, the Senate made three orders seeking a broad range of documents concerning potential pension changes and the government’s Social Services Legislation Amendment (Enhancing Pensioner and Workforce Participation) Bill 2022. On 8 September, the government tabled two responses raising public interest immunity claims in respect of documents in the Treasury and Prime Minister and Cabinet portfolios on the basis that they would, if released, reveal Cabinet deliberations. A third response advised that a significant number of relevant documents had been identified in the social security portfolio, and the government would seek to provide a substantive response by 12 September.
A further order made on 6 September sought ‘tabulated information’ relating to applications for funding under schemes administered by the Australian Research Council (ARC). It will be interesting to see whether this apparent requirement to compile information prompts the kind of response discussed in Bulletin 363.
Two orders made on 7 September sought documents concerning the government’s proposal to reintroduce multi-employer bargaining. A third order required ‘all data’ held by the Australian Bureau of Statistics in connection with live births and causes of death in Australia. Two orders made on 8 September sought a broad range of documents in relation to disaster recovery funding to the Northern Rivers region following recent flood events, as well as the role of the Special Envoy for Disaster Recovery more generally. These orders fall due before the next sittings.
The sitting also saw the first instance in the new parliament of the Senate not agreeing to a proposed order, with the government, opposition and others combining, on 7 September, to negative a motion seeking documents and communications relating to Australian Federal Police (AFP) support for and engagement with Myanmar police and intelligence services. In a statement by leave, the government indicated that the AFP had not provided any such support or engagement, and flagged its concern that such documents could reveal operational information and potentially compromise ‘Australia's national security interests and the security and protection of Australian citizens’.
Somewhat unusually, on 5 September, the government tabled a response to an order made in the previous parliament, relating to animal welfare incident reports at export registered abattoirs. While orders for documents continue to apply notwithstanding the prorogation of the parliament for an election, and compliance is good practice, it is uncommon for responses to orders from previous parliaments to be provided following a change of government. The minister’s response advised that a significant number of documents had been identified as within the scope of the order and that further time was required to provide a final response. Noting the government’s commitment to ‘integrity and transparency’, the minister indicated his intention to provide a final response to the order ‘at the earliest opportunity’.
On 6 September the Senate considered an amendment from the Leader of the Australian Greens in the Senate to a routine motion to appoint members to committees. The amendment aimed to delay the appointment of members to the Parliamentary Joint Committee on Intelligence and Security until the Leader of the Government in the Senate had advised that consultation had occurred with non-government parties about the proposed membership and that “due regard has been had to the desirability of ensuring that the composition of the committee reflects the representation of recognised political parties in the Parliament”. These conditions are contained in Schedule 1 to the Intelligence Services Act 2001.
A variety of sources provide for the powers, functions and operations of joint statutory committees, and there are complexities in how they interact. These days, statutes establishing joint committees generally set out their composition and functions but otherwise provide that matters relating to their powers and proceedings shall be determined by resolution of both Houses. However, the PJCIS is an exception to this model, with the committee’s operating provisions contained in Schedule 1 of the Act.
For its part, the government maintained that it had consulted sufficiently and had given ‘extensive consideration’ to the committee’s composition. The government and opposition combined to defeat the amendment and appoint the nominated members.
It is difficult to see how the relevant statutory provisions could be enforced. Any evidence of the consultation etc. required would likely form part of ‘proceedings in parliament’ so that courts would be constrained in using those proceedings for most forensic purposes: s. 16, Parliamentary Privileges Act 1987.
Three bills were referred to legislation standing committees as a result of report no. 4 of the Selection of Bills Committee. The Senate also established three new references inquiries:
Six reports were tabled during the sitting week. The Community Affairs, Economics, Education and Employment, and Legal and Constitutional Affairs Legislation Committees all tabled Annual Reports (No. 2 of 2022). The Economics Legislation Committee tabled a report on the Treasury Laws Amendment (Electric Car Discount) Bill 2022 and the Education and Employment Legislation Committee tabled a report on the Jobs and Skills Australia Bill, and a related bill.
The three legislative scrutiny committees – the Scrutiny of Delegated Legislation Committee, the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights – also tabled their first reports for this Parliament, commenting on some residual matters from the previous Parliament, instruments made during the period of prorogation, and new bills and instruments introduced and made during the new Parliament.
Dynamic Red – updated continuously during the sitting day, the Dynamic Red displays the results of proceedings as they happen.
Senate Daily Summary – a convenient summary of each day’s proceedings in the Senate, with links to source documents.
Like this bulletin, these documents can be found on the Senate website: www.aph.gov.au/senate
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