193 Rules of debate
A senator shall not reflect on any vote of the Senate, except for the purpose of moving that the vote be rescinded.
A senator shall not refer to the Queen, the Governor-General or the Governor of a state disrespectfully in debate, or for the purpose of influencing the Senate in its deliberations.
A senator shall not use offensive words against either House of Parliament or of a House of a state or territory parliament, or any member of such House, or against a judicial officer, and all imputations of improper motives and all personal reflections on those Houses, members or officers shall be considered highly disorderly.
Adopted: 19 August 1903 as SOs 406, 408 and 409 (corresponding to paragraphs (1), (2) and (3)) but renumbered as SOs 401, 403 and 404 for the first printed edition
1989 revision: Old SOs 415, 417 and 418 combined into one, structured as three paragraphs and renumbered as SO 193; reference to state governors added to paragraph (2) and reference to judicial officers and territory parliaments added to paragraph (3); reference to use of offensive words against a statute (unless for the purpose of its repeal) deleted from paragraph (3); re-expressed as direct prohibitions; language modernised and expression streamlined
Probably the most frequently invoked standing order and the subject of countless rulings, SO 193(3) sets a standard for referring to other Houses and their members, and to judicial officers. It underpins the maintenance of comity between Houses of Parliament throughout the nation and between the legislative and judicial branches of government. The protection extends to members of the executive government who are also members of parliament, and to groups as well as individuals.
Paragraph (2) was amended on adoption in 1903 to replace “irreverent” references to the monarch or Governor-General with the current protection against disrespectful references. Senator Pearce (ALP, WA) argued that irreverence was defined as the want of due regard for the supreme being and that “disrespectfully” was a much more appropriate term to use in relation to human beings. This paragraph was also the subject of amendment in the course of the 1989 revision when the protection against disrespectful references was extended to state governors “as a matter of principle”. Like paragraph (3) its rationale is the need for mutual respect between branches of government and between federal and state governments.
SO 193 protects members of other Houses against unparliamentary remarks (Photo courtesy of AUSPIC)
Whereas members of other Houses and judicial officers are protected against offensive words, imputations of improper motives and personal reflections, the protection for the monarch, the Governor-General and state governors is against disrespectful references and references designed to influence the Senate in its deliberations. It is therefore a much wider protection. The protection is waived, however, to the extent necessary, if the protected person is the subject of a substantive motion critical of his or her conduct.
Edwards, in his 1938 MS, referred to Blackmore’s Manual of the Practice, Procedure and Usage of the Legislative Council of South Australia in explaining the rationale for the protection of the Crown. Ministers are the proper and only channel of communication between the Crown and the Parliament:
… and the Crown has no private opinion apart from its responsible advisers. To express, therefore, an opinion of the Crown’s representatives with a view to influence the judgment of Parliament is most improper, and is dragging into the arena of Parliament one who is not responsible to it. A statement of fact by a Minister, in which the Governor-General’s name may be concerned, is not held to contravene this rule.
The protection in paragraph (3) of members of other Houses was confined in the colonial legislatures to members of the other House in that particular jurisdiction. Although it was not debated in 1903, it is apparent that this standing order reflected the idea of the Senate as a States’ House and that the courtesy extended to a legislative partner should also extend to the partners in the Federation. In 1977, the Standing Orders Committee considered the question of whether the protection applying to State Parliaments and their members should also apply to an elected assembly of a territory. The Northern Territory would become self-governing in 1978 but from 1974 there had been a fully elected legislative assembly which replaced an earlier, partly elected legislative council dating from 1947 under the Northern Territory(Administration) Act 1910. Similarly, while the ACT had to wait longer for self-government, it too had a fully elected legislative assembly replacing an earlier, partly elected, advisory council from 1974.
The committee surveyed the standing orders of the State Parliaments and found that only the Legislative Councils of Tasmania and South Australia protected the Houses of the Commonwealth Parliament and their members. The territory assemblies protected their own members but not those of the Commonwealth or State Parliaments. The House of Representatives standing orders did not protect State Parliaments. The committee formed no view and suggested it be discussed further in inter-parliamentary forums.
The Standing Orders Committee next looked at the status of judicial officers who were not mentioned in the pre–1989 standing order but were protected as a matter of practice. The committee suggested that it should continue to be left to practice and recommended no change to the standing order.
Both of these loose ends were clarified in the 1989 revision when references to territory parliaments and judicial officers were added to paragraph (3), the first because it was implicit that the protection extended to all other Australian Parliaments and their members, and the second because it was a matter of established practice. At the same time an obsolete reference to a prohibition on offensive words against statutes (except when moving for their repeal) was dropped.
Paragraph (1) is not often invoked. On 11 August 2009, President Hogg explained:
The prohibition in standing order 193(1) against reflecting on a vote of the Senate is not interpreted as preventing a senator from arguing that a decision of the Senate was wrong or mistaken and should be reconsidered. The word “reflect” in the standing order means reflect within the meaning of the word used elsewhere in that standing order—that is, to use unparliamentary language with reference to a decision of the Senate.
For extensive commentary on the application of this standing order, see Odgers’ Australian Senate Practice, 12th edition, Chapter 10, under “Rules of debate”.