For supplementary Budget estimates hearings 4 to 8 November 2024 and the sitting period 18 to 28 November 2024

Download Procedural Information Bulletin No. 386 (PDF 167KB)

Senators and the Senate

Estimates dates for 2025 were (finally) set on the last sitting day of the year, after negotiations on the program behind the scenes. A letter from the Leader of the Government in the Senate, Senator Wong, to the Leader of the Opposition in the Senate, Senator Birmingham, indicated that the government would bring forward the Budget estimates round if the Budget occurred on 25 March, as planned. On the other hand, with speculation that next year’s election might be called before the Senate is scheduled to meet in February, the sitting and estimates programs might be swept away with the 47^th Parliament. Both need to be re-established when the new Parliament meets.

Proceedings on the final sitting day were rearranged to accommodate valedictory statements for Senator Birmingham, who announced his intention to resign his place as a senator for South Australia over the coming months, after nearly 18 years in the Senate.

Censure motions and suspension of a senator

The sittings commenced with debate on two motions to censure crossbench senators for conduct occurring outside of the proceedings of the Senate and its committees. The first motion censured Senator Thorpe for ‘disruptive and disrespectful conduct’ during a ‘Parliamentary Reception for Their Majesties King Charles III and Queen Camilla’ held at Parliament House, and for her ‘disrespect of democratic institutions’. The motion was opposed by the Australian Greens and by Senator Canavan, who thought the debate should not have occurred until Senator Thorpe was able to participate. The second motion responded to posts made by Senator Babet on social media, censuring him for ‘his inflammatory use of hate speech, designed to drive division for his own political benefit’. That motion passed on the voices. Each motion also called on all senators to engage in debates and commentary respectfully.

Censure motions are usually directed towards government ministers (or sometimes the government itself), signalling a want of accountability or a failure to meet ministerial standards. In that sense, they play a similar role to no confidence motions in the House of Representatives, although censure motions are symbolic and do not carry the potential consequences of bringing down a minister or government that accompany no confidence motions in the House.

It is relatively uncommon for the Senate to censure senators who are not ministers. Precedents are referenced in Chapter 6 of Odgers’ Australian Senate Practice under Conduct of senators. Recent examples include the censure of Senator Anning for his inflammatory and divisive comments in the aftermath of attacks on mosques in Christchurch (see Bulletin 333); and Senator Rice for unparliamentary conduct and disrespect of proceedings, following her protest during a sitting of the House of Representatives to hear an address from the President of the Republic of the Philippines (Bulletin 379). 

In the second sitting week the Senate also suspended Senator Thorpe for disorderly conduct, following an incident during proceedings on 27 November that culminated in Senator Thorpe tearing up papers and throwing them at Senator Hanson. The incident led the President to make two statements before naming the senator in accordance with standing order 203. A senator named under that standing order is called on to make an explanation or an apology. Any senator may then move a motion proposing that the senator be suspended from the sittings of the Senate. Under the standing orders, any such motion must be put without amendment or debate.

The President advised Senator Thorpe that she intended to make a statement to the Senate and invoke the procedures in standing order 203. The President then indicated that, by declining to attend the Senate, Senator Thorpe had denied herself the opportunity to make an explanation or apology. On the motion of the Leader of the Government in the Senate, Senator Wong, the Senate voted to suspend Senator Thorpe until the end of the sittings on the following day. Ordinarily the motion to suspend a senator would have the effect of the senator being suspended for the remainder of the sitting day. Senator Wong moved for the longer suspension, on the basis of the gravity of the conduct involved and the fact that the motion was being moved very late in the sitting day. Australian Greens senators voted against the suspension, with their Senate Leader, Senator Waters, arguing that the Greens did not think that denying Senator Thorpe the ability to exercise her vote in this Senate for an entire day was an appropriate and proportionate response. 

Senators’ qualification under the Constitution

Senator Thorpe’s protest at the reception for the King, and her subsequent media appearances, led to commentary about the requirement for senators to make and subscribe an oath or affirmation of allegiance before taking their seats in the Senate. Had Senator Thorpe breached or rescinded the affirmation she made on 1 August 2022 and, if so, what were the consequences? This had been the subject of questioning when the President appeared at a Finance and Public Administration estimates hearing on 4 November. The President made a statement on the first sitting day explaining that the requirement, which is in section 42 of the Constitution, is a prerequisite to senators taking their seats. It follows that the question whether the requirement has been met must be determined by an objective assessment of the facts at the time a senator is sworn. The subsequent adherence to the oath or affirmation of allegiance does not go to the qualification or disqualification of senators, the only grounds for which are set out in sections 44 and 45 of the Constitution.

In an unrelated matter, Senator Hanson gave notice of a motion relating to Senator Payman’s qualification to sit as a senator. After acrimonious debate on 27 November, Senator Hanson was able to table her correspondence with the President on the matter. In that correspondence, Senator Hanson alleged that Senator Payman had provided insufficient evidence that she had taken reasonable steps to renounce her Afghan citizenship, and that the President should put the matter before the Senate so that it could be referred to the Senators’ Interests Committee for investigation. The President pointed to the procedural constraints the Senate had placed on the consideration of matters relating to senators’ qualifications, which are set out in the resolution that established the Senators’ qualification register. These provide that a motion to refer a matter to the Court of Disputed Returns may only be moved if the possible disqualification arises from facts not disclosed on the qualification checklist required of candidates for election, and then only after the Senators’ Interests Committee has considered and reported on the matter.

This approach was recommended by the Joint Standing Committee on Electoral Matters. In seeking to balance the need for compliance with the need for certainty, the committee reasoned that full disclosure by candidates at the time of nomination would better-inform those seeking to challenge a successful candidate's qualifications by petition directly to the Court of Disputed Returns within the existing 40-day window after the return of the writs. In the committee's view, a person's eligibility in respect of matters disclosed in the qualification checklist should not be able to be questioned in any other way: see Bulletin 333.

In this case, the relevant disclosures were made by Senator Payman on her qualification checklist with her nomination for election to the Senate. This meant the procedural constraints in the qualifications resolution prevented the President putting the matter before the Senate. Senator Hanson’s motion sought to suspend so much of the qualifications resolution as would prevent the matter being referred to the Senators’ Interests Committee. When the motion was moved, the Manager of Government Business endorsed the approach set out in the resolution, stating that ‘the government did not support suspending the resolution to get around these well-considered constraints’. The motion was negatived, 3 votes in favour and 35 against.

Legislation

The fortnight consisted of two very different sitting weeks, with one bill passed in the first week after detailed consideration, and 45 passed in the second week in an end-of-year (and, some speculated, end-of-Parliament) rush.

The Aged Care Bill 2024 sought to replace existing aged care legislation to create a simplified, rights-based legislative framework, implementing many of the recommendations of the Royal Commission into Aged Care Quality and Safety. An exposure draft of the bill, released in December 2023 had been the subject of extensive consultation and, in September 2024, the bill was referred to the Community Affairs Legislation Committee. It was received from the House on 18 November and debated over the next 3 days, passing during extended hours on 21 November with government, opposition and crossbench amendments. The Australian Greens voted against the final bill, citing the removal of criminal penalties for aged care providers, which had been provided for in earlier iterations.

In all, the Senate spent 10 hours debating the bill, including more than 6 hours in committee of the whole. By contrast, 13 bills were passed during 9 hours of debate on 25 and 26 November, and a further 32 bills passed under a guillotine on the final day. The Senate spent about as much time voting on those bills and amendments – some 4 hours and 46 minutes – as it spent debating government legislation over its final two days.

Among the bills debated were the Government’s Help to Buy bills. Regular readers would recall protracted disputes between the Government, the Australian Greens and the Opposition over housing legislation. This most recently manifested as an impasse on the Help to Buy bills, which were deferred against the Government’s wishes by a procedural resolution on 11 September 2024: see Bulletin 384. That resolution also put a guillotine on the bills, to take effect during proceedings on 26 November. At the appointed hour, the bill was passed, with support from the Australian Greens and with government amendments to ensure that the proposed scheme aligned with state and territory legislation.

Other controversial bills passed under the guillotine included the government’s online safety bill, that requires platforms to take ‘reasonable steps’ to prevent people under the age of 16 using social media, and a trio of migration bills dealing with people who were or had been in immigration detention. Bills that didn’t make the list included an omnibus electoral reform bill and the ‘nature positive’ package, on which deals with opposition and crossbench senators proved elusive. The ‘misinformation and disinformation’ bill, which arrived friendless in the Senate, was discharged from the Notice Paper on 25 November by the unusual method of a government-controlled committee recommending that it not proceed. For more detail see Reports, below.

Two private senators’ bills – one seeking to overturn a heritage declaration affecting the construction of a gold mine near Blayney and another seeking to legalise cannabis for adult recreational use in Australia – were rejected at the second reading stage, on 20 and 27 November, respectively.

Finally on legislation, the Senate disallowed an amendment to rules made under the Recycling and Waste Reduction Act 2020 which sought to implement cost recovery related to the export of regulated waste material. During debate on the motion on 20 November, senators indicated that the rules as implemented might lead to more valuable material going to landfill rather than being recycled.

Parliamentary privilege and the use of investigative powers

In May this year, the Presiding Officers and the Attorney-General signed an updated memorandum of understanding on the execution of search warrants and use of covert investigative powers where parliamentary privilege may apply. This was tabled in each House, along with an Australian Federal Police guideline setting out procedures for collecting and quarantining material that could be subject to privilege, and processes for making and determining claims of privilege. For the first time, the MOU and guideline deal with the use of covert investigative powers, such as the use of surveillance devices and telecommunication interception, which was flagged as an area for further negotiation when the previous MOU was tabled in November 2021: see Bulletin 360.

Two similar agreements were finalised and tabled during the fortnight. The first, between the Presiding Officers and the Independent Parliamentary Expenses Authority, confirms that parliamentarians may make claims of privilege where information sought is closely connected to parliamentary proceedings, but advises that parliamentary privilege ‘will not usually be engaged where information or documents relate to parliamentary expenses.’ It also acknowledges that parliamentarians’ information held on the parliamentary computing network is ‘owned’ by the relevant member or senator, so that notices to produce should be directed to them rather than the Department of Parliamentary Services, which maintains the network.

The other MOU was struck between the Presiding Officers, the Attorney-General and the Commissioner of the National Anti-Corruption Commission. It establishes agreed processes for the exercise of the Commission's powers to ensure that parliamentary privilege is respected while permissible action by the Commission to detect and investigate corrupt conduct is not inhibited. The MOU largely follows the principles established in the AFP MOU.

Where covert powers are involved, including where information is sought from third parties by way of notices to produce accompanied by confidentiality obligations, each of the MOUs provide for the agency and the Clerk of the relevant House to discuss ways of mitigating the risk that the investigation might interfere with parliamentary proceedings. Each of the MOUs also recognises that it is for the relevant House, rather than anyone else, to determine claims of privilege. This would ordinarily entail investigations by the Privileges Committees, although that detail is left to the practices of the Houses and not dealt with in the agreements.

Inquiries

This sitting fortnight was notable for the large number of committee reports presented (see below) as well as the references of two bill inquiries with very short deadlines to accommodate the government’s legislative program.

On Tuesday 19 November, the Migration Amendment Bill 2024 was referred to the Legal and Constitutional Affairs Legislation Committee through the formal motions process, for inquiry and report within a week, a short time frame for a controversial bill. The time frame was even shorter for another contentious bill, the Online Safety Amendment (Social Media Minimum Age) Bill 2024, referred on Thursday 21 November to the Environment and Communications Legislation Committee through the Selection of Bills Committee process, to report on Tuesday 26 November, effectively allowing only two full working days to complete the inquiry. In this time, the committee received thousands of submissions (although in the time available only a small portion of these were able to be processed and formally accepted by the committee) and held a public hearing on the Monday.

A further ten bills were referred as a result of report no. 13 and report no. 14 of 2024 of the Selection of Bills Committee, with reporting dates in late January and February. One of those, the Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Bill 2024, was subsequently passed among the bills that were guillotined on the final sitting day. As such, the committee has the option of presenting a brief report to the Senate noting that the bill had passed the Parliament contemporaneously with the referral. Attempts to refer other bills, including the Electoral Legislation Amendment (Electoral Reform) Bill 2024 and the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024 for inquiry failed, the latter also passing under the guillotine. While the electoral reform bill was included in the lodged notice of motion to guillotine bills on the final sitting day, it was removed from the motion that was subsequently agreed to pursuant to a suspension of standing orders.

Reports

During the sitting fortnight, legislation committees presented 4 bill reports. Notably, the Environment and Communications Legislation Committee presented two in quick succession. On Monday of the second sitting week, the committee presented its report on the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024, recommending that the bill be discharged from the Notice Paper. A motion to adopt the recommendation was agreed to and the bill, which was listed first for debate that day, was discharged. The following day the committee presented its report on the Online Safety Amendment (Social Media Minimum Age) Bill 2024 (see above).

A number of joint committee reports were also presented, including by the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs which reported on its inquiry into economic self-determination and opportunities for First Nations Australians and the Joint Standing Committee on Implementation of the National Redress Scheme which presented its final report on the operation of the National Redress Scheme. The redress scheme was established following the Royal Commission into Institutional Responses to Child Sexual Abuse and, among other recommendations, the committee recommended that the scheme be extended as it found that the current time frame of 2027 is too soon to stop accepting redress applications.

In addition, committees presented a large number of reports in the out of sitting weeks in between the October and November sittings. Legislation committees presented 10 bill reports on government legislation relating to aged care, tax reform, wages for early childhood workers, the ‘future made in Australia’, anti-money laundering, privacy and other matters. A further three reports were presented on private senators’ bills relating to housing, charitable food donations and certain criminal proceedings. Two references committee reports were presented relating to aircraft noise and not-for-profit entities and tax assessments, and the Joint Statutory Committee on Corporations and Financial Services presented its substantial report on its self-referred inquiry into Ethics and professional accountability: Structural challenges in the audit, assurance and consultancy industry.

Select committees

Three Senate select committees and one joint select committee reported during this fortnight or close to it:

• Select Committee on the Cost of Living (established 28 September 2022, final report 15 November)
• Select Committee on Adopting Artificial Intelligence (established 26 March 2024, final report 26 November)
• Select Committee on the Impact of Climate Risk on Insurance Premiums and Availability (established 16 May 2024, final report 26 November), and
• Joint Select Committee on Social Media and Australian Society (established 15 May 2024, final report 18 November).

  Upon presentation of their final report, select committees cease to exist.

  It is notable that the Select Committee on the Cost of Living was a 26 month inquiry, far surpassing the average length of select committee inquiries in the 47^th Parliament of 11 months.

  The reporting date for the Select Committee on Tasmania Freight Equalisation Scheme (established 20 August 2024) was extended from 26 November to 20 December 2024.

  In addition, the Senate established a Select Committee on Measuring Outcomes for First Nations Communities with a reporting date of 30 May 2025 to be chaired by an Australian Greens senator. This is the 14^th Senate select committee established this Parliament, similar to the average of 13 over the last three parliaments (12 in the 46^th, 15 in the 45^th and 12 in the 44^th), but much higher than in earlier Parliaments, when it was unusual to have more than 4 or 5 appointed.

  Supplementary Budget estimates hearings, 4 to 8 November 2024

  During the supplementary Budget estimates hearings in the first week of November, the eight legislation committees examined a wide range of issues relating to Commonwealth expenditure and administration, including:

• departmental expenditure, staffing levels, conflicts of interest
• meeting renewable energy targets by 2030
• use of artificial intelligence
• tribunal and court appointments
• infrastructure projects
• financial sustainability of the NDIS
• CFMEU administration
• HECS-HELP debt relief, and
• Defence spending.

Ten additional ‘spillover’ hearings have either been held, or are scheduled to be held, by five of the committees.

Orders and explanations

The Senate agreed to 35 new orders for documents in the sitting period. A number of these related to bills to be considered by the Senate, including in relation to the government’s electoral reform proposals (19 November), a bill to provide for wage increases for early childhood educators and care works (19 and 28 November) and a private senator’s bill relating to food donations (19 November). Six proposed orders for documents were defeated, including in relation to legal services funding (25 November) and mortality data (26 November).

Documents were provided in response to 36 orders. A response to an order for documents relating to wagering advertising reforms (22 November) contained a claim that disclosure of the documents would not be in the public interest as it would ‘pre-empt’ Cabinet deliberations. This claim was rejected by the Senate on 26 November. A response to an order for the government response to a committee report concerning bank closures in regional Australia (1 November) stated that no documents existed within the scope of the order. The Senate on 19 November insisted that the order be complied with but the government provided the same response on 25 November. In ordering the production of government responses to reports, the Senate is trying to enforce the long-standing (but routinely breached) expectation that governments will respond to reports within 3 months. Government senators, when last in opposition, routinely moved or supported similar motions.

Perhaps reflecting dissatisfaction with responsiveness to orders for documents, the Senate agreed to seven new orders relating to compliance with previous orders. One of these related to the order of continuing effect for a twice-yearly report on orders not complied with in full (19 November). Documents covering the two previous reporting periods were tabled the following day. In a covering letter, the Leader of the Government in the Senate drew the Senate’s attention to the ‘dramatic’ increase in orders during the 47th Parliament, stating that the frequency of orders has a resultant impact on their moral authority and makes it more likely that ministers will make use of public interest immunity claims. Nevertheless it appears that the process of compiling the reports may have resulted in additional documents being provided in full compliance with past orders, including in relation to the Maugean skate (order agreed to 19 June 2023; documents tabled 14 November), national environmental laws and standards (order agreed to 14 November 2023; documents tabled 14 November) and the aged care taskforce (order agreed to 27 February; documents tabled 18 November).

One order was agreed to during the reporting period requiring a ministerial explanation of a response to an order for documents, in relation to the National Housing Accord (19 November).

The cumulative list of orders and responses can be found on the Senate's business pages.

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

Inquiries: Clerk’s Office (02) 6277 3350