Opinion Number. 1586

Subject

House of Representatives Standing Orders House of Representatives Standing Orders: questions arising to be determined by majority of votes: ‘question’: validity of orders requiring fewer votes: whether power to make rules and orders with respect to order and conduct of business and proceedings confers power to make rules and orders inconsistent with

Key Legislation

constitution ss 40, 50: house of representatives Standing Orders 126, 262A, 262B, 407

Date
Client
The Clerk of the House of Representatives

The Clerk of the House of Representatives has forwarded the following letter to me for advice:

It is intended to review the Standing Orders of the House of Representatives when an opportunity occurs, and the Speaker of the House of Representatives proposes to submit to the Standing Orders Committee, for its early consideration, a revised draft of the Standing Orders.

Authority to make rules and orders for the conduct of its proceedings is vested in the House of Representatives by section 50 of the Commonwealth of Australia Constitution Act, which reads as follows:

Each House of the Parliament may make rules and orders with respect to:

  1. The mode in which its powers, privileges and immunities may be exercised and upheld;
  2. The order and conduct of its business and proceedings either separately or jointly with the other House.

Two of the Standing Orders now in force contain provisions requiring a certain number of votes to be given in favour of a particular motion set out in the Standing Order before the power of the Standing Order can be applied. Standing Order No. 262A (Limitation of Debate) requires that, in the event of there being a dissentient voice, at least 24 affirmative votes shall be given in favour of the motion that the Bill or matter be considered as urgent. Any motions under Standing Order No. 262B (The Closure) need to be carried by an affirmative vote of not less than 24 Members.

One Standing Order (No.407) provides that a motion without notice to suspend any Standing or Sessional Order must be carried by an absolute majority of the whole number of the Members of the House, and Standing Order No. 126 (Rescinding of Resolution or Vote) can be availed of only when at least one-half of the whole number of the Members of the House vote.

It may happen, under the Standing Orders mentioned above, that, although a majority of votes may be cast in favour of the motion moved to give effect to the Standing Order, the affirmative votes are below the number required by the Standing Order, or, in the case of Standing Order No. 126, the total votes are fewer than half the number of Members. In such cases, the motions would not, under the Standing Orders, be considered to have been passed.

Section 40 of the Constitution provides that ’Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker …‘

The Speaker has asked me to obtain for the guidance of the Standing Orders Committee your opinion as to whether section 40 of the Constitution is all-embracing in its application or whether its application is limited to such an extent as to permit the House, by virtue of the power conferred upon it by section 50 of the Constitution, to make Standing Orders imposing voting requirements of the nature of those referred to in the Standing Orders mentioned. I should therefore be glad to be favoured with your advice on the matter.

In order to advise upon this matter, it is necessary to consider the meaning of the word ’question‘ in section 40 of the Constitution, which is quoted in the foregoing letter. It is laid down in Maxwell, On the Interpretation of Statutes (7th edition, p. 2) that ’the first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one‘. In my opinion, section 40 of the Constitution is a piece of technical legislation, and the word ’question‘ occurring therein must be understood, in the technical sense which it has acquired, as meaning a question proposed upon motion.

In my opinion, every matter before the House which is proposed in the form of a motion, and upon which a question is subsequently put, is a ’question arising‘ in that House, and must be determined by a majority of votes, as provided by section 40.

The power given by section 50 to each House to make rules and orders with respect to the order and conduct of its business and proceedings does not confer power to make rules and orders which are inconsistent with the Constitution. The provisions of section 40, interpreted in the manner I have shown, are of general application, and cannot be cut down by rules or orders made under section 50.

The Standing Orders referred to in your letter appear, therefore, to be invalid.(1)

[Vol. 28, p. 417]

(1) This opinion is quoted in the following editions of House of Representatives Practice: 1st ed, 1981 (p. 431), 2nd ed, 1989 (p. 355), 3rd ed, 1997 (p. 337), 4th ed, 2001 (pp. 327–328), 5th ed, 2005 (p. 334) and the following editions of Odger