RE-INTRODUCTION OF COMMONWEALTH BANK BILL¹

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

The Senate, on 21st June [1950], passed the Bill with amendments to which the House of Representatives later refused to agree. The refusal of the House of Representatives became final when, on 23rd June, the House insisted on disagreeing to the amendments insisted on by the Senate.

On 23rd June the Senate resolved that the message of the Representatives (insisting on disagreeing) be considered during the next sittings of the Parliament. The matter is therefore still on the notice paper of the Senate.

(2)  Standing Order No. 166 of the House of Representatives 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resolved in the affirmative or negative, unless the Order, Resolution, or Vote on such Question or Amendment has been rescinded.

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

(4)  The proceedings leading up to the double dissolution in 1914 do not throw any light on the matter. 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 in the House of Representatives a Bill substantially the same as one introduced in the same Session.

(5)  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.

(6)  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.

(7)  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 as 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’).

(8)  In the present case the Senate has passed the Bill with amendments to which the House of Representatives has refused to agree. It may be argued that the first condition upon which section 57 of the Constitution operates has, therefore, been fulfilled.

(9)  On the other hand the Opposition might submit that the Standing Orders provide (Order 247) for further consideration of the Senate amendments if the Bill is again returned by the Senate, and therefore it cannot yet be said that the Senate has passed the Bill with amendments ‘to which the House of Representatives will not agree’.

(10)  On this view re-introduction of the Bill would not be for the purposes of section 57 of the Constitution and might be contrary to Standing Order 166.

(11)  The relevant portion of section 57 of the Constitution reads 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 by 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.

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

(14)  Another objection which may be taken is that the Bill cannot be re-introduced while the first Bill is still before the Senate. The possible answers to this are, firstly, that section 57 contemplates such a situation, as has indeed arisen in the present case, and secondly, that the House is not aware what legislation is before the Senate. Further, there is no Standing Order which prevents the same Bill being before both Houses simultaneously.

ANNEXURE ‘A’.

PASSAGE FROM MAY’S PARLIAMENTARY PRACTICE, 14TH Ed. P 491

BILLS WITH THE SAME PURPOSE AS OTHER BILLS OF THE SAME SESSION.

There is no rule or custom which restrains the presentation of two or more bills relating to the same subject, and containing similar provisions. But if a decision of the House has already been taken on one such bill, for example, if the Bill has been given or refused a second reading, the other is not proceeded with if it contains substantially the same provisions, and such a bill could not have been introduced on a motion for leave. But if a bill is withdrawn, after having made progress, another bill with the same objects may be proceeded with. Bills having the same short title are distinguished by a number, according to priority in date of introduction, printed in brackets after the title.

The following examples illustrate the application of the rule laid down by the Commons on 1st June 1610, that ‘no bill of the same substance be brought in the same session.’

On 7 July 1840 Mr. Speaker called attention to a motion for a bill to relieve dissenters from the payment of church rates, before he proposed the question from the chair. Its form and words were different from those of a previous motion, but the object was substantially the same; and the House agreed that it was irregular and ought not to be proposed from the chair. On 15 May 1860 the order for the second reading of the Charity Trustees Bill was withdrawn, and it was discovered to be substantially the same as the Endowed Schools Bill, which the House had already put off six months.

Objection has also been taken to a bill on the broader ground that a particular stage of it raised a question which had been previously decided by the House in relation to a bill of the same session. Such objection has rarely been found capable of being sustained.

[Vol. 39, p. 314]

¹ The Commonwealth Bank Bill was originally introduced in the House of Representatives on 16 March 1950. It was again introduced on 4 October 1950.