86 Same question
A question shall not be proposed if it is the same in substance as any question which has been determined during the same session, unless the order, resolution, or vote on such question was determined more than 6 months previously or has been rescinded.
This standing order shall not prevent a motion for the disallowance of an instrument substantially the same in effect as one previously disallowed.
Adopted: 19 August 1903 as SO 126
Amended: 11 March 1932, J.45–46 (also see 4 March 1932, J.27–29) (paragraph (2) adopted as a proviso consequent on successful dissent from a ruling of President Kingsmill that a motion to disallow certain transport workers’ regulations was out of order because it was the same as a motion previously determined and not rescinded)
1989 revision: old SO 133 structured as two paragraphs and renumbered as SO 86; language simplified; the phrase “was determined more than 6 months previously or” added to prevent vexatious repetition
Just as SO 85 was influenced by the VIP planes affair which dominated debate in the Senate in 1966–67, SO 86 was transformed by the saga of the transport workers’ regulations which dominated proceedings in 1931 and led to an amendment of the Acts Interpretation Act the following year.
In the 1938 MS, Edwards refers to the “considerable degree of doubt as to the meaning of the expression the same in substance’”. This is how he described the situation leading to the amendment:
Various Transport Workers regulations from 1930-31. The repeated remaking and disallowance of these regulations led to the development of more sophisticated disallowance procedures
The amendment of the 11 th March, 1932, was rendered necessary by certain proceedings during the Session of 1929–30–31, when certain regulations relating to Transport Workers were disallowed by the Senate and re-made by the Government over and over again. The President had ruled that a motion for disallowance of a regulation substantially the same as a regulation already disallowed in the same Session was not in order unless the previous resolution was rescinded, and his ruling was dissented from (one of the rare instances where the Senate has disagreed with a President’s ruling).
In the debate on the proviso objection was taken to the amendment of the Standing Order because it enunciated a principle which should be maintained by the Parliament, namely, that questions once having been finally disposed of shall not be raised again and again in the same Session. The President (Senator Kingsmill) urged the Senate to adopt the suggested proviso pending an amendment of the Acts Interpretation Act to remedy the position which had arisen.
The Acts Interpretation Act was amended a few weeks later with the addition of a new section prohibiting the remaking, within six months, of regulations the same in substance as regulations which had been disallowed by either House of Parliament, unless the relevant House rescinded the disallowance. This amendment ensured that the successive making and disallowance of the same regulations could not recur.
Professor Sawer’s view is that President Kingsmill’s ruling was unsound (“plainly wrong”) because the question could not be the same question if it were addressed to a new regulation on each occasion. Current practice also takes a much broader view of the same question rule, which has not been applied for many years. The passage of time or a different context or purpose may readily transform identical text into a different question. See Odgers’ Australian Senate Practice, 12th edition, pp.182–83, 334 and 342 for further commentary, particularly on the same question rule and disallowance motions.
The rationale for adding a 6 month time limit to paragraph (1) in the 1989 revision was given in the explanatory notes tabled with the final draft in November that year. Like SO 85, SO 86 is of a residual character, and is very seldom invoked. It was thought necessary, however, to include a rule to prevent the same motion being repeated vexatiously. The proviso was actually rescued from an old standing order deleted in the revision. Although largely redundant, old SO 416A was nonetheless considered to have some application in this context.