Procedural Information Bulletin No. 247

For the sitting period 8 – 10 February 2011

Routine of business

The 2011 sittings began with a day devoted to condolence motions in the wake of devastating floods in Queensland and other natural disasters. There was also a condolence motion for former Deputy President and Chairman of Committees, Senator Maunsell, who appears in volume 3 of the Biographical Dictionary of the Australian Senate. The normal routine of business was put aside by a motion moved by leave to enable this to occur and the Senate adjourned early as a mark of respect to the deceased.

Senate powers queried

Normal business was resumed on 9 February and a large number of documents was tabled, many of which had been presented out of sitting, including responses to orders of the Senate from the Australian Information Commissioner. The orders had asked the Information Commissioner to report on the reasons proffered by the government for not complying with earlier orders for information about the proposed mining tax and the proposal to vary the GST agreements in exchange for a different health funding model (see Bulletin Nos. 245 and 246). The Commissioner argued that he could not comply with the order because what it required him to do was beyond the powers and functions conferred upon him by his statute. He went on to query the extent of the Senate's power to make such orders. In debate on a motion to take note of the responses on 9 February, Senators Cormann and Ludlam disputed the Commissioner's position and put forward arguments to the contrary. Both emphasised, however, the need to find a solution that would give effect to the agreements on parliamentary reform without derogating from the Senate's established powers and practices.

An order to the Productivity Commissioner, similar in terms to the order to the Information Commissioner agreed to on 22 November 2010, was passed on 10 February. The order requires the Productivity Commissioner to reconsider his position on an earlier Senate order requiring him to produce a document on superannuation default funds in industrial agreements and awards. In a response tabled on 9 February, the Productivity Commissioner also appeared to suggest that the order was outside the terms of his statute. Like the Australian Information Commissioner Act 2010, the Productivity Commission Act 1998 contains no explicit limitation on the powers of the Houses under section 49 of the Constitution which would be required if the Parliament had meant to limit itself in this regard.

An occasional note on the power to order the production of documents is attached to this bulletin.

Private senators' bills

The Senate's powers under section 53 of the Constitution were also the subject of debate in relation to the Social Security Amendment (Income Support for Regional Students) Bill 2010, introduced by Senator Nash (see Bulletin No. 246). The arguments for and against the Senate's initiation of bills such as this are contained in the Clerk's submission to the Education, Employment and Workplace Relations Legislation Committee's inquiry into the bill and advice prepared by the Attorney-General, also provided to the committee and tabled in the Senate on 17 November 2010. Now that the bill has passed the Senate, it will be up to the House to determine its position. In 2008, the House declined to consider a comparable bill (see Bulletin No. 224).

Matters involving section 53 of the Constitution are matters for the Houses themselves to sort out, not the courts, because section 53 relates to "proposed laws" and is therefore non-justiciable, a principle stated as early as 1911 in Osborne v Commonwealth 12 CLR 321.

The bill was the first to pass the Senate under the new procedures for consideration of private senators' bills on Thursday mornings. Under a temporary order, the routine of business is altered to set aside time exclusively for the consideration of general business orders of the day relating to bills. The order does not vary any other standing orders, meaning that bills considered at this time are subject to all the normal rules that apply to any other bills (although, in this case, informal arrangements had been made to limit speaking times on the second reading). The normal rules include the following:

  • standard speaking time limits apply, namely, 20 minutes per speaker on the second reading and 15 minutes in committee of the whole, without a total time limit;
  • second reading amendments may be moved as normal, including second reading amendments that have an effect on further consideration of the bill (such as referral to a committee or postponement of subsequent stages);
  • a separate opportunity exists for a motion to be moved immediately after the second reading to refer the bill to a committee (standing order 115(2));
  • if amendments or requests for amendments are circulated to the bill, or a senator so requires, then it must be considered in committee of the whole (standing order 115(1));
  • instructions may be given to the committee of the whole in respect of the bill (standing orders 115(2), 149, 150 and 151);
  • if the bill is referred to a standing or select committee after it has been listed in the motion specifying the business for Thursday mornings, then the bill is not available for consideration at that time until the committee reports (nor is it available for consideration if it is already before a committee and the committee has not reported) (standing order 115(3));
  • if consideration of a bill is not completed before the available time expires, then it returns to the Notice Paper as a general business order of the day and must be specified in a future motion if it is again to be considered at either of the general business opportunities on Thursdays;
  • a declaration of urgency under standing order 142 may be moved only by a minister but other senators may move motions (subject to the normal procedures of the Senate) for consideration of bills under limitations of time that may have the same effect as a motion under standing order 142;
  • if the bill is agreed to during this time and read a third time, it is transmitted to the House of Representatives for concurrence in the normal way and standing orders 125 to 127 apply to the bicameral consideration of the bill.

Unanswered questions

The procedure for following up unanswered questions on notice, or estimates questions on notice, under standing order 74(5) was used on 9 February in respect of both categories of unanswered questions for the first time since late 2009. Senators expressed their dissatisfaction with the explanations provided by taking note of them and using most of their allotted speaking times, thus demonstrating one impact of the mechanism in taking up available time for government business. The 445 answers outstanding to estimates questions on notice, the subject of the motion, were lodged with the secretariat two days later.

Additional estimates

The particulars of proposed additional expenditure were referred to legislation committees on 10 February ahead of the additional estimates hearings scheduled for the week beginning 21 February. The subject of unanswered questions taken on notice at the previous round will no doubt be raised at the hearings.

Committee references

Several new matters were referred to committees including the impact on the dairy industry of supermarkets' milk pricing policies, the impact of a South Australian Government decision on the timber industry in that region, capital markets for social economy organisations, Defence procurement policies, and the relationship between the Water Act 2007 and the development of the Murray Darling Basin Plan. Amongst the reports presented was a significant and unanimous report on donor conception practices, presented by the Legal and Constitutional Affairs References Committee on 10 February. For details of other reports, see the Senate Daily Summary.

Orders for production of documents

Two orders agreed to on 9 February for the production of legal advice, respectively, on the interpretation of the Water Act 2007 and underpinning bilateral agreements on the "Building the Education Revolution" (BER) program were met with refusals on 10 February. The refusals took the form of statements tabled by the duty minister but contained nothing on the face of the documents to indicate who was providing them, not even a letterhead of the responsible minister. In refusing to produce legal advice on the Water Act, the government repeated the assertion that release of legal advice would go against long established convention and practice, conveniently ignoring the equally well-established practice, recorded in these bulletins, that governments release legal advice when they consider it is in their interests to do so. There was a reference to "important public interest grounds, long recognised by successive governments" – but not by the Senate – "for having such material remain confidential". The statement referred to a summary of the legal advice already released (presumably summaries are not subject to the long established convention) and concluded with confirmation that the Australian Government Solicitor had advised the department that its advice on the issue was consistent with the summary advice published by the Minister. The statement in relation to the BER, although short, did identify a public interest immunity ground for not producing the document and included a minimal explanation of possible harm that could ensue from the disclosure, as required by Senate orders, together with a reference to a Procedure Committee report recognising that particular ground as a ground which had received some degree of acceptance by the Senate in the past.

Related resources

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:

Inquiries: Clerk’s Office (02) 6277 3364