Standing Committee on Procedure
Report
Introduction
1. In 1995
the Office of Parliamentary Counsel (OPC) altered its standard drafting
practice to present proposed amendments to existing Acts as items in schedules
attached to amending bills. Previously, standard drafting practice was
to present proposed amendments to existing Acts within the clauses of
amending bills other than for minor or machinery amendments. Bills for
new Acts still contain the principle provisions within the clauses.
2. This change
was one of a number of changes to the formatting and structure of bills
introduced by OPC to improve readability and respond to new technologies
and printing techniques. The ongoing efforts of OPC to improve the accessibility
of legislation are to be commended. The new format does, however, raise
the question as to whether the House's traditional method of considering
the provisions of a bill is still the most appropriate.
3. The change
to the structure of amending bills does not, in itself, present a threat
to the powers or prerogatives of the House of Representatives in respect
to its consideration in detail of legislation or of amendments to existing
Acts in particular. However standing order 226 reflects and accommodates
historical practice and its literal application to current circumstances
curtails the freedom of Members to debate separately each substantive
element of a bill during its consideration in detail.
4. The problem
arises from the fact that standing order 226 provides for clauses to be
considered individually but for schedules to be taken as a whole. Amendments
which were previously drafted as several clauses of an amending bill could
be considered and voted on separately. Under the new format they may comprise
many items within a schedule which are considered and voted on together.
5. The Speaker
wrote to the Procedure Committee on 30 July 1996, drawing its attention
to this matter and asking it to consider and, if appropriate, report on:
The consideration in detail of bills by the House in the light of the
varying format of bills presented to it.
The Speaker provided the committee with a note on the matter prepared
by the Clerk. On 22 August 1996 the Procedure Committee resolved to undertake
the review requested by the Speaker.
General procedure for the consideration of legislation
6. Once the
House has agreed to the principle or principles of a bill at the second
reading, it may, in accordance with standing order 222, consider the bill
in detail. Its function in doing so is to consider the bill clause by
clause and, if necessary, word by word and to approve the text or to modify
it to reflect its intentions.
7. Standing
order 226 prescribes the order in which the House will consider the components
of a bill. Standing order 226 also prescribes that clauses are to be considered
individually but that schedules are to be taken as a whole. Leave of the
House, or suspension of the standing order, is required to depart from
the prescribed procedure.
8. Standing
order 226 provides:
The following order shall be observed in considering a bill in detail:
- 1.
- Clauses as printed and new clauses, in their numerical order.
- 2.
- Schedules as printed and new schedules, in their numerical order.
- 3.
- Postponed clauses (not having been specially postponed until after
certain other clauses).
- 4.
- Preamble.
- 5.
- Title.
And in reconsidering the bill the same order shall be followed:
Provided that—
- (a)
- in considering an Appropriation or Supply Bill, any schedule expressing
the services for which the appropriation is to be made shall be considered
before the clauses and, unless the House otherwise orders, that schedule
shall be considered by proposed expenditures in the order in which
they are shown, and
- (b)
- in considering a bill to impose taxation, any schedule shall be
considered before the clauses.
9. Traditionally
the clauses of bills contained the substantive provisions and matters
that are subsidiary to the main purpose were contained in schedules appended
to the bill. This was the approach taken by parliamentary drafters in
1901 when the terms of standing order 226 were originally adopted by the
House (as standing order 169).
10. The traditional
approach is still generally used in the drafting of 'new' bills, those
not amending existing Acts. However, it is not the approach used in the
drafting of amending bills. In amending bills, all the provisions of the
bill which amend existing Acts, no matter what the import or extent of
those provisions, are submitted to Parliament in the form of items in
a schedule to the bill.
11. Standing
order 226 prescribes the order which shall be observed by the House when
considering bills in detail. In part, the order requires the House at
the consideration in detail stage to consider:
First Clauses as printed and new clauses, in their numerical
order;
Second Schedules as printed and new schedules, in their numerical
order.
12. Under the
new drafting practice for amending bills, standing order 226, in providing
a framework in which the House is asked to agree to an entire schedule
as one question, may operate to limit the freedom of Members to debate
each substantive element of a bill, that is each proposed amendment, individually.
Framing of amendments to schedules
13. The question
of the framing of amendments to schedules to be moved in the House was
also considered by the committee. There is a theoretical possibility that
with only one question before the Chair-That Schedule 1 be agreed to-a
single amendment could be proposed to the question which affected several,
possibly unrelated, items within the schedule. The committee believes
that this would be inappropriate and would undermine the rights of Members
to consider and vote on each matter of substance separately.
14. The committee
strongly supports the principle that amendments to different items within
a schedule should continue to be framed as separate amendments even when
the House considers the schedule as a whole. The House then has the choice
of considering the amendments together or separately as it wishes.
Possible remedies
15. The committee
considers it is imperative that the right to examine amending legislation
in the detail traditionally enjoyed by the House should be maintained.
The House must guard its traditional rights and privileges and the right
to scrutinise legislation effectively is of utmost importance. The committee
is of the view that the standing orders must reflect and protect the right
of the House to examine each significant part of an amending bill in the
same way as it can for a new bill. The committee has examined two possible
remedies to restore the House's capacity to consider each individual amendment
if it wishes.
16. The two
remedies considered by the committee both involve recognising in the standing
orders the House's right to examine bills as closely as it wishes. The
first option would provide that the Speaker be given the discretion to
direct that certain items in schedules be put to the House as separate
questions. The second option would provide for items within a schedule
to be considered separately as a matter of course, that is for items to
be treated in the same way as clauses.
Grant discretion to the Chair (option 1)
17. The proposal
that the Speaker be given the discretion to direct that certain items
in schedules be put to the House as separate questions could be achieved
by adding the following paragraph to standing order 226:
- (c)
- in considering a schedule containing amendments to an Act the
Speaker may direct that items in a schedule be considered as separate
questions.
18. This would
enable the Speaker to direct that items in a schedule or schedules to
a bill be taken separately. Leave of the House would not be required but
the committee envisages that, if this course was adopted, the Speaker
would consider the wishes of government and opposition representatives
and any independent Members in making directions in accordance with the
provision.
Treat items as clauses (option 2)
19. The alternative
approach is to specify that the standing orders provide for items within
schedules to be treated separately unless the House agrees otherwise.
This could be achieved by adding the following paragraph to standing order
226:
- (c)
- in considering a bill making amendment to an Act or Acts, when
the amendments are contained in one or more schedules to the bill,
the schedules shall be considered in their numerical order before
the clauses. When such a schedule is considered items within the schedule
shall be considered in their numerical order, and, where appropriate,
the practice applying to the consideration of clauses shall apply
to the consideration of the items of the schedule.
20. This procedure
would require the House to consider each item within the schedule separately
unless the House grants leave for certain items or the entire schedule
to be considered together. The procedure also provides for schedules containing
the substance of a bill to be considered before the clauses, reflecting
the approach taken to appropriation bills where proposed expenditures
(contained in a schedule) are considered before the clauses. The clauses
of amending bills are now limited to such matters as the short title of
the bill, commencement provisions and an authorising clause for the schedules.
Conclusion
21. Both of
the suggested approaches to the problem reflect the fact that amending
bills are now structured differently to new bills, requiring the House
to adopt a different procedure for each. The committee believes that Members
should have the same rights in respect of amending schedules as they have
traditionally had in respect of amending clauses. Hence the preferable
solution is one that results in a procedure for the consideration in detail
of amending bills that is, as far as possible, consistent with the procedure
for other bills. The committee notes that the House currently follows
procedures consistent with those outlined in option 2 during the consideration
in detail of the appropriation bills.
22. The House's capacity to examine amending legislation and Members' traditional right
to debate and vote on amendments separately must be upheld. In recommending
the most appropriate way to achieve this objective the committee proposes
to enshrine the right of Members to deal with issues individually when
they are contained in schedules to amending bills just as they are presently
able to do in respect of issues contained in clauses of bills.
23.The committee recommends:
Kathy Sullivan
Chair
10 October 1996
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