Possible Objection under Standing Orders of House of Representatives.

The position of the Bill¹ as previously introduced is as follows:

(a)  The Senate, on 15th June, 1950, passed the Bill with amendments, to some of which the House of Representatives later refused to agree. The refusal of the House of Representatives to agree became final when, on 22nd June, 1950, the House returned the Bill to the Senate with advice that the House insisted on certain amendments made by the House on amendments of the Senate and insisted on disagreeing to certain amendments made and insisted upon by the Senate.

(b)  The Senate having returned the Bill to the House of Representatives on 22nd June, 1950, desiring the reconsideration by the House of the Bill in respect of certain amendments, the House laid the Bill aside on that date. The Bill is not now before either House.

Standing Order No. 166 of the House of Representative is as follows:

166. No Question or Amendment shall be proposed which is the same in substance as any Question which, during the same Session has been resolved in the Affirmative or negative, unless the Order, Resolution, or Vote on such Question or Amendment has been rescinded.

Same Question not again proposed.

(3) It may well be that, when leave is sought to re-introduce the Bill, or at some subsequent stage of the Bill, objection will be taken that the Question before the House is contrary to this Standing Order.

(4)  Objection might even be taken when the Prime Minister gives notice of his intention to move (on the next day of sitting) that he have leave to bring in the Bill. It is submitted that objection at that stage would be premature, because there would be no ‘Question’ proposed, which could offend against the Standing Order. Standing Order No. 139 requires that a notice which ‘offends against any Standing Order’ shall be amended by the Speaker before it appears upon the notice paper. Even if the Question foreshadowed by the notice were out of order, there does not appear to be any way in which the notice could be amended to put it in order. It would seem that the correct ruling by the Speaker would be that objection cannot be taken under Standing Order No. 166 until the Question is proposed.

(5)  The proceedings leading up to the double dissolution in 1914 do not throw any light on the matters under discussion. The second passage by the House of Representatives of the Government Preference Prohibition Bill took place in the second Session of the 5th Parliament, whereas the first passage of the Bill took place in the first Session of that Parliament. No instance is known in which it has been sought to introduce a Bill substantially the same as one introduced in the same Session.

(6)  In the absence of guidance from Commonwealth precedent, the matter must be considered on principle and in the light of the practice of the House of Commons.

(7)  The Standing Order in question is similar to a Rule observed in the House of Commons (which does not appear, however, to be contained in the Standing Orders of the House of Commons). The Rule as stated in May’s Parliamentary Practice, 14th Ed., page 375, is as follows:

A Motion or an Amendment may not be brought forward which is the same, in substance, as a Question which has been decided in the affirmative or negative during the current Session. The Rule may be fully stated as follows: No Question or Bill shall be offered in either House that is substantially the same as one on which its judgment has already been expressed in the current Session.

It is clear from this and from other passages in May that the Rule applies to the introduction of Bills.

(8)  It will be noticed that both the Commonwealth Standing Order and the House of Commons Rule speak of a Question ‘the same in substance’ as a previous one. May (p 375) says (after mentioning the Rule as it applies to motions) that ‘the determination as to whether and how far a Bill raises the same question is that decided on a previous Bill is a matter of much greater complexity, involved in special difficulties arising out of the relations between the two Houses.’  This question is further discussed at p. 491 (See annexure ‘A’).²

(9)  In the present instance the Bill as proposed to be re-introduced differs from the Bill as originally introduced, and from the Bill as read a first, second and third time in the House of Representatives. The differences (arising from the inclusion of some of the Senate amendments) may well be considered to be differences in substance. But this does not seem to be a good ground for contesting the application of the Standing Order, because the points of difference have themselves all been the subject of previous questions in the House, on motions arising out of the Senate amendments. Moreover if the point of order is taken at the stage of the motion for leave to introduce the Bill, the Speaker’s ruling will presumably have to be based on the long title of the proposed Bill, which will be identical with the long title of the Bill which was laid aside.

(10)  It is therefore considered that it would be best to acknowledge that, if Standing Order 166 were to be interpreted or applied without regard to the Constitution, the re-introduction of the Bill in the present Session would, or at least might, involve a breach of the Standing Order.

(11)  However, the matter must be considered in the light of section 57 of the Constitution, the relevant portion of which is as follows:

57. If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next Session, again passes the proposed law with or without any amendments which have been made, suggested or agreed to be the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously.

This section clearly implies the possibility of the re-introduction in the same Session of a Bill which has been passed by the House of Representatives.

(12)  It might be submitted that the Standing Orders (which derive their authority from section 50 of the Constitution) must be read subject to the Constitution and would be invalid to the extent to which they involved any inconsistency with the Constitution. It might further be submitted that Standing Order 166 must therefore be read as not applying so as to prevent a Question being proposed which is a step in the procedure contemplated by section 57 of the Constitution for dealing with disagreement between the Houses—otherwise the Standing Order would constitute a fetter on the full operation of that procedure and would to that extent be invalid. The Question on the motion for leave to bring the Communist Party Dissolution Bill, is prima facie, a step in that procedure, because—

1.  A Bill having the same title has been, in the same Session, passed by the House of Representatives;

2.  The Senate passed that Bill with amendments to which the House of Representatives refused to agree;

3.  An interval of three months has elapsed since the Bill was laid aside in the House of Representatives;

4.  The obtaining of leave to introduce a Bill having the same title is a step towards the second passing in the same Session by the House of Representatives of the same Bill, with or without any of the amendments made by the Senate.

(13)  If, when the leave is granted and the Bill is presented, it should be found that the Bill differs from the Bill as previously passed otherwise than by reason only of the incorporation of amendments made by the Senate, it would be open to any member to take a point of order under Standing Order 166 at a subsequent stage.

(14)  If the Speaker should rule that the motion is out of order, the House could, of course, suspend the Standing Order.

[Vol. 39, p. 308]

Note: The opinion is undated. Given the subject matter of the opinion and its reference to three months having elapsed since the Communist Party Dissolution Bill was laid aside by the House of Representatives, it appears to have been written shortly before a redrafted Bill was introduced in the House on 28 September 1950. The Bill came into force on 20 October 1950. The High Court invalidated the Communist Party Dissolution Act 1950 on 9 March 1951: Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1.

¹ Communist Party Dissolution Bill.

² The same annexure was also attached to Opinion No. 1908 and is reproduced there.