Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I ask leave of the House to amend the notice relating to the proposed amendments to standing orders by replacing standing order 133(d) with the following:

(d) Standing orders 80 and 81 shall not apply during a period of deferred divisions.

Leave not granted.

I move:

That standing orders 34, 55, 85 and 133 be amended as follows:

34 Order of business

The order of business to be followed by the House is shown in figure 2.

Figure 2. House order of business

55 Lack of quorum

(a) When the attention of the Speaker is drawn to the state of the House and the Speaker observes that a quorum is not present, the Speaker shall count the Members present in accordance with standing order 56.

(b) On Mondays, if any Member draws the attention of the Speaker to the state of the House between 10 am and 12 noon, the Speaker shall announce that he or she will count the House at 12 noon, if the Member then so desires.

(c) On Tuesdays, if any Member draws the attention of the Speaker to the state of the House prior to 2 pm, the Speaker shall announce that he or she will count the House after the discussion of the matter of public importance, if the Member then so desires.

(d) On Mondays, Tuesdays and Wednesdays, if any Member draws the attention of the Speaker to the state of the House from 6.30 pm until the adjournment of the House, the Speaker shall announce that he or she will count the House at the first opportunity the next sitting day, if the Member then so desires.

(e) If a quorum is in fact present when a Member draws attention to the state of the House, the Speaker may name the Member in accordance with standing order 94(b) (sanctions against disorderly conduct).

85 Proceedings on urgent bills

(a) If one or more bills have been declared urgent, the provisions of standing order 31 will not apply and a single second reading debate on the bill[s] may continue from 7.30 pm until 10 pm that sitting, or earlier if no further Members rise to speak, at which time the Speaker shall interrupt the debate and immediately adjourn the House until the time of its next meeting.

(b) After prayers on the next sitting, each bill will be considered in turn. The question on any second reading amendment and the question on the second reading shall be put without further amendment or debate.

(c) If the second reading of a bill is agreed to and any message from the Governor-General announced, the bill then to be taken as a whole during consideration in detail, if required, with any detail amendments to be moved together and the mover to speak for a maximum of five minutes, without further debate, and any government amendments to the bill which have been circulated to be treated as if they had been moved together, any opposition amendments which have been circulated to be treated as if they had been moved together, and any amendments by crossbench Members which have been circulated to be treated as if they had been moved as one set per Member, with:

(i) one question to be put on all the government amendments;

(ii) one question then to be put on all opposition amendments;

(iii) separate questions then to be put on any sets of amendments circulated by crossbench Members; and

(iv) any further questions necessary to complete the remaining stages of the bill to be put without delay.

(d) Standing order 81, providing for the closure of a question, shall not apply to any proceedings to which this standing order applies.

(e) Any division called for during the second reading debate from 7.30 pm until 10 pm that sitting shall be deferred until the first opportunity the next sitting day, except for a division called on a motion to suspend any standing or other order of the House moved by a Minister during this period, and, if any Member draws the attention of the Speaker to the state of the House, the Speaker shall announce that he or she will count the House at the first opportunity the next sitting day if the Member then desires.

133 Deferred division s on Mondays, Tuesdays and Wednesdays

(a) On Mondays, any division called for between the hours of 10 am and 12 noon shall be deferred until 12 noon, except for a division called on a motion to suspend any standing or other order of the House moved by a Minister during this period.

(b) On Tuesdays, any division called for prior to 2 pm shall be deferred until after the discussion of the matter of public importance, except for a division called on a motion to suspend any standing or other order of the House moved by a Minister during this period.

(c) On Mondays, Tuesdays and Wednesdays, any division called for from 6.30 pm until the adjournment of the House shall be deferred until the first opportunity the next sitting day, except for a division called on a motion to suspend any standing or other order of the House moved by a Minister during this period.

(d) Notwithstanding the provisions of standing orders 80 and 81, only a Minister may move during a period of deferred divisions—

That the Member be no longer heard; or

That the question be now put.

(e) The Speaker shall put all questions on which a division has been deferred, successively and without amendment or further debate.

[and see standing order 85 in relation to urgent bills]

For the motion in front of us on the Notice Paper there is a challenge at the moment that I am wanting us to fix. Two particular problems have arisen since the standing orders were changed shortly after the election. In response to the Jenkins report we made a decision which I think most members or possibly all will say has worked pretty well—that is, after 6.30 pm, if you're giving a speech, then you stay, but otherwise there are no further divisions or quorums. I won't say we have landed at a truly family-friendly workplace, but I think we're getting better and the 6.30 rule has been part of that.

The challenge is the way the standing order had been drafted just said, 'No divisions or quorum calls between 6.30 and 7.30,' and that means on those days, which don't happen often but we'll get one when we return on budget night, where we sit beyond 7.30 pm, divisions and quorums could all happen again, even though we've told a whole lot of members they can leave. The impact of that, simply, is we run the risk of completely undoing the intention of what we did and creating a situation where the whips—we have one of them here—end up feeling obliged to tell members, 'You have to stay. You might be able to duck out for an hour, but there could be divisions later in the night.' That would effectively defeat what we're trying to do. The first half of what's in front of the House is to say the 6.30 rule would no longer be between 6.30 and 7.30; it'd just be from 6.30 on. That should deal with the challenges we would otherwise have with members feeling an obligation to stay here and back to the late nights of everybody being here and the cultural problems that had been associated with that, which were referred to by Kate Jenkins in her report.

The second challenge, though, is one that has not yet arisen but conceivably could, and it's this: during a period of no divisions, if someone moves that the member be no further heard, the House can't divide on it; the House can't deal with it. What happens is that member is immediately sat down, whether they would have won the vote of the House or not, and we move to the next speaker. So there is a capacity at the moment for somebody, even if they don't have and know they wouldn't have a majority of the House, to effectively unilaterally terminate people's speeches by moving that the member be no further heard, and the House has no way of resolving it, because if we can't divide. It gets deferred, but the nature of the deferral is that it never happens. We have a similar problem in the Federation Chamber, but I'm not proposing to deal with that at the moment. But that challenge after 6.30 pm is real.

The amendment on the Notice Paper seeks to pull that back by saying that at the moment a minister can move anything after 6.30 pm. I'm proposing we pull that back so that a minister would only be able to force a division if it were a suspension of standing orders. Of course, in a situation where you need an absolute majority of the House, that would only be possible if people knew to stay. It would also be the circumstance, realistically, given that there are always some pairing arrangements going on, that the standing order that involves the cooperation of the Manager of Opposition Business would need to apply to that standing order for it to take effect.

I want to pull back further on what ministers are able to move. In what was circulated, I had left that a minister could move that the question be put or that a member be no further heard. I felt that we had the runs on the board in terms of not moving that and, in terms of allowing people debate, that would have been a reasonable compromise, given that we already can, and I was preventing us from moving a whole lot of other things. On consulting with both the opposition and the crossbench, I find there has been a clear view that there is concern about that. There are effectively two ways you could then go. Either you could go down a path that says that you could only move those motions if the opposition and the government agree, at which point there is a disadvantage to the crossbench, or you could have a situation where we just say, 'After 6.30 pm, those motions are not on, and that's the rule.'

What I sought leave to do would have created an absolute prohibition on there being any closure or gag motions moved after 6.30 pm so that we would have had a situation where, when they were moved, they were resolved by a majority of the House. I am hopeful that someone else will move the amendment that I was denied leave to include in the motion in the first instance. The motion in its current form says a minister can. I'm encouraging another minister to move the amendment in the terms I have described. But, out of this, we end up with two things being fixed. First, the 6.30 pm rule will become real again, and it means that, from 6.30 pm onwards, if people aren't speaking they're effectively free to go. The second thing we will fix is a situation where any person from anywhere in the chamber can just stand up and move that someone be no further heard, and it just happens without the vote of a House, which is the impact that there would otherwise be during a period where there are no divisions.

I commend the standing order change to the House. I hope that provides adequate explanation. I am braced for the prepare, when the Manager of Opposition Business uses his 'reasonable voice' speech. But, nonetheless, I actually think this is a reasonable way for the House to operate.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I want to commence by acknowledging that the Leader of the House has consulted with the opposition and, I'm informed, with the crossbench on the changes that are proposed in the motion that is before the House this afternoon. He has accurately foreshadowed that I will issue my normal consumer warning, which is that, when the Leader of the House comes in here and uses his most reasonable voice, be on alert! Again, I cite the words of that great statesman Ronald Reagan—a hero of centre-right parties around the world for a very good reason—who said, 'Trust, but verify.' That is a very good principle, and I urge it upon all in this House today.

Let us go to the substance of what is before the House—first of all in the motion that was moved by the Leader of the House and that is on the Notice Paper and then secondly the amendment that I understand he envisages may well be moved later in this debate. The concern that the opposition has with what has been moved, with what is on the Notice Paperand I will deal with that first—is that the proposed standing order 133(d) would greatly constrain an important right, which is presently available to every member of this House, and that's the right to move that a member be no longer heard or that the question be put.

As a general proposition, what we're seeing from this government is that it is eager to reduce the capacity of the parliament, the representative branch of government, to hold the executive government to account, to put it under scrutiny. One of the ways that this government has done this is through steadily increasing the number of hours in the sitting week in which divisions may not be called, in which the House may not vote on a question before the House. Of course, this is an absolutely fundamental exercise of the rights that members have and it has been a trend that we have seen.

It's now the case that there are some seven hours across the week in which members are not able to bring on a division. The divisions are deferred. There are some seven hours across the week in which rights already are constrained, and what is now put before the House is that those rights should be further constrained. Of course, I do note that the calculation of seven hours assumes that the adjournment comes at 7.30 pm and then the House rises at 8 pm. But, of course, very commonly that time after 8 pm is used for continued debate. I make no criticism of that, but I simply make the point that that increases the proportion of the time in which the capacity of members to exercise a right which is ordinarily available to them is constrained. And in particular the right that is of concern to the opposition that would be constrained—under both the version of proposed standing order 133(d) that is contained in the motion as moved by the Leader of the House which is on the Notice Paper, and the amended version, which I understand will shortly be moved—is that the existing right of members of this House to move that another member be no further heard or to move that the motion be put, and that is an issue which of is fundamental concern to the opposition. It essentially goes to the relationship between, on the one hand, representative government, the parliament, and on the other hand, the executive government.

The amended change, which the Leader of the House has foreshadowed that he intends to bring forward, is that standing order 133(d) would now say that nobody, no person in this House, minister or not, would be able to move that a member be no longer heard or that the question be now put. As I'm advised, the amendment that the Leader of the House will shortly facilitate or procure be made is that standing orders 80 and 81 shall not apply during a period of deferred divisions.

I say to the House that that is of no assistance when it comes to the fundamental problem and that fundamental problem is the rights of members in this place. All of us want to facilitate debate. All of us want free flowing debate. All of us want vigorous debate. But what we must also recognise is that there will be circumstances from time to time where a member in this place says something which is so egregious, so offensive that it prompts at least one other member in this place to jump and to move that the member be no longer heard.

Of course, standing orders provide that, once such a motion is put, it must be voted on immediately. So it's not the case that any one member can impose his or her will on the House. What is the case is that the matter needs to be considered by the House. What is being proposed in either form of the amendment is that that right, which ordinarily is available to all 151 members of this House, is no longer available by reason of this change to the standing orders, because of the fact that the standing orders would now say, under the original version, that, in effect, anybody who is not a minister would be deprived of that right, but under the version that we understand will shortly be moved, indeed, no member of this House may exercise that right. That is, in the view of the opposition, quite problematic.

I acknowledge that the Leader of the House has engaged and has consulted in good faith on this issue with the opposition and, I'm advised, with the crossbench. I make it clear that the balance of what is proposed is not problematic or objectionable from the perspective of the opposition. But we do have concern about proposed standing order 133(d) in either the original version or what I'm advised will shortly be the amended version. I'd put to the House that the best way to deal with this is therefore not to include standing order 133(d)—either version of it—in what the House agrees to pass as an amendment to the standing orders. If there's more work to do, let's do that further work in good faith. Let's see if there is a better solution to be found which does not constrain what ultimately is a fundamentally important right of all members in this place but does address the concerns and anxieties which the Leader of the House has shared with all of us today.

We stand ready to approach this constructively. It's not as if this is the last and only time to deal with this matter, but both forms of the proposed new standing order 133(d)—either in the form as it stands in the motion contained in the Notice Paper or in the form that I'm advised will shortly be moved as an amendment to the form of the motion that's in the Notice Paperare, in the view of the opposition, problematic and we are not in a position to support them. Indeed, what I now wish to do is move, as an amendment to the motion moved by the member for Watson:

That:

(1) standing order 133(d) be omitted.

What the opposition very clearly is putting forward is an amendment that would remove either version of the words, frankly, of 133(d), although, as a formal matter, we're doing that in relation to the version that is on the Notice Paper. I now table that amendment and conclude my contribution at that point.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

Is there a seconder for that motion?

Angus Taylor (Hume, Liberal Party, Shadow Treasurer) Share this | Link to this | Hansard source

I second the motion and reserve my right to speak.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

So the question now is that the amendment be disagreed to.

Andrew Wilkie (Clark, Independent) Share this | Link to this | Hansard source

To ensure the effective functioning of the House, I move:

That all words after (1) be omitted with a view to substituting the following words:

"standing order 133 (d) be amended to read:

(d) Standing orders 80 and 81 shall not apply during a period of deferred divisions."

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

Is there a seconder?

Monique Ryan (Kooyong, Independent) Share this | Link to this | Hansard source

I second the motion and reserve my right to speak.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I indicate the government's support for the amendment that was just moved by the member for Clark. I have to say, in terms of the 'reasonable voice' trick, I think the Manager of Opposition Business just did it far more effectively than I've ever done it. When he talks about the rights of members, I just want to flesh out what the Manager of Opposition Business is saying. There are often times when we talk about the fundamental rights of members—the right of members to move motions, the right of members to speak. The fundamental right of members that was just referred to by the Manager of Opposition Business was the right to silence others. I have to say, in terms of rights—and we've all seen the movies where you get told you have a right to remain silent—I've never, until this moment, heard that we're meant to have a right to silence others, and that's effectively what this whole discussion is about.

I've put forward that this only applies after 6.30 for the very simple reason that after 6.30 the House doesn't have the capacity to resolve the question. The other times it's being used are not dealt with in this particular motion; just in circumstances where the House can't resolve it. The amendment that's been moved by the member for Clark and seconded by the member for Kooyong goes further than what I've put to the House. Effectively, it says: after 6.30, nobody, whether they're in the opposition, the crossbench or the government or whether they're a minister, can silence another member. That's what it says. We've never had that principle in the House. I think it's a good one, and the government supports the amendment to the amendment.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendment moved by the honourable member for Clark to the amendment moved by the Manager of Opposition Business be agreed to.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question now is that the amendment moved by the Manager of Opposition Business, as amended, be agreed to.

Question agreed to.

The question now is that the motion moved by the Leader of the House, as amended, be agreed to.

Question agreed to.