BY ANNE TWOMEY

Lacking an outright majority in the House of Representatives, the Morrison Government is facing the prospect that not only might it lose votes in the lower House, but a bill might be passed against its wishes, such as the one proposed by Kerryn Phelps to facilitate the medical evacuation of asylum-seekers from Nauru.  But even if there is a majority of non-government members in favour of such a bill, it will not necessarily pass.

The main impediment to its passage is that the Standing Orders of the House of Representatives largely provide for Government control of the business of the House, including which bills are called on for debate.  In particular, in the absence of notice or leave, Standing Order 47 requires the vote of an absolute majority to suspend Standing Orders to override the Government’s ordering of business and to bring on a private member’s bill for debate.  An absolute majority means 50 per cent plus one of the number of members of the House.  In the House of Representatives it means 76 members out of 150.  In contrast, a simple majority, meaning a majority of those actually voting on the motion, is at most 75, as the Speaker does not vote unless there is a tie, and is usually less, as members are often absent or paired.

This is currently relevant because in the last federal parliamentary sitting week of 2018, the Opposition and cross-benchers were able to obtain simple majorities on votes to change the order of business to bring on a private member’s bill for debate, but the motions were deemed by the Speaker to have failed because there was not an absolute majority.  The only other way to suspend Standing Orders is with ‘leave’, which means that no one in the House objects, or by way of notice.  On its face, the giving of notice would seem to alleviate the problem by allowing the motion to be moved and passed by a simple majority the next day, but in practice, due to other procedural and time constraints, private members’ notices of motions rarely reach a vote without Government support.  The consequence is to turn a procedural barrier of a special majority into a substantive barrier.

The constitutional issue and legal opinions

The reason why this is controversial, from a public law perspective, is because s 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, who shall not vote unless the numbers are equal.  This is accepted as mandating a simple majority, rather than an absolute majority.  Where the Constitution seeks to apply an absolute majority, as it does in ss 57 and 128 in relation to bills passed in a joint sitting or to amend the Constitution, it expressly says so.

Each House is authorized to make Standing Orders by s 50 of the Constitution with respect to the ‘order and conduct of its business and proceedings’.  So does this allow the House to override the requirement in s 40 that questions in the House are to be determined by a simple majority?

This question has been debated for over a century.  When the Senate first debated its Standing Orders in 1903, the Clerk of the Senate, noting that a special majority provision would breach the requirement for a simple majority in s 23 of the Constitution (being the Senate equivalent of s 40), decided to seek the advice of the eminent constitutional authorities of the day.  James Bryce, A V Dicey and the Clerk of the House of Commons all took the view that a Standing Order that prescribed anything higher than a simple majority would be invalid because it breached s 23 of the Constitution.  But their replies were received too late, after the relevant Standing Orders had already passed.

In 1935 the Commonwealth Solicitor-General, Sir George Knowles, also advised that the power to make Standing Orders in s 50 did not permit the making of rules or orders that were inconsistent with s 40 of the Constitution.  He regarded the requirements for special majorities as invalid.  The same view was taken by the Commonwealth Attorney-General, Sir Garfield Barwick in 1962, although he pointed out that this was a matter for the House, rather than a court, to determine.

In 1968 and 1969, a simple majority in the Senate voted to dissent from a ruling by the President of the Senate seeking to uphold the requirement of an absolute majority for the suspension of Standing Orders.  They did so on the ground that the Standing Order was constitutionally invalid.  The Government obtained an opinion from the Attorney-General, Nigel Bowen, and the Solicitor-General, Anthony Mason.  Bowen and Mason, while accepting that s 50 of the Constitution did not override ss 23 and 40, sought to draw a distinction between procedure and substantive questions for determination by the Senate.  They considered that s 23 only applied if a matter was brought properly before the Senate, and that s 50 allowed the Houses to determine the conditions, such as notice, which applied before a matter was properly before the Senate.

In 2010, the Commonwealth Solicitor-General, Stephen Gageler, in providing an opinion on whether the Speaker and the Deputy Speaker could be ‘paired’, pointed to the ‘mandatory and unqualified language’ in s 40 and considered that this was

inconsistent with any notion that those requirements can be overridden, whether by a formal agreement… or by a rule or order made by the House of Representatives under s 50 of the Constitution.

Can a distinction be drawn between procedural matters and substantive questions?

The consensus in those opinions appears to hold, in my view correctly, that s 50 of the Constitution does not permit the making of a Standing Order that overrides ss 23 and 40 of the Constitution.  But can a distinction be drawn between the procedure for bringing a motion before the House and the determination of the motion itself, as suggested by Bowen and Mason?  While such an argument has some merit, it falls down when the House votes upon the motion to suspend Standing Orders.  This is a motion properly brought before the House, so its determination would appear to fall under s 23 or 40, as the case may be, and therefore its passage should be determined by a simple majority.  Further, if s 40 was not intended to apply to votes on procedural matters, then neither would the requirement in s 40 that the Speaker not vote unless the numbers are equal.  Such a distinction has not previously been made and was clearly not intended.

There is also a strong policy argument to support this interpretation.  While it is reasonable for a House to impose procedural rules, such as those requiring notice, before substantive actions are taken, it is not reasonable for these procedural rules to become substantive barriers.  For example, if there was a procedural requirement for a vote by three-quarters of Members before a bill on a particular issue could be brought on for debate, it would not matter that the vote on the bill itself only required the support of a simple majority, because its consideration would have been blocked by the failure to achieve a special majority at the procedural stage.

If the Standing Order is unconstitutional, what can be done?

As Barwick noted, it is likely that a court would treat Standing Orders as non-justiciable.  The Courts have generally proved reluctant to interfere with the “intra-mural activities of the Parliament”, although they have done so where a special legislative procedure is required by the Constitution (such as the double dissolution procedure) or if it affects the rights and interests of a person (such as the suspension or expulsion of a Member of Parliament).  A vote on the suspension of Standing Orders, while it might have the effect of preventing a bill from being debated and passed, does not affect the validity of a law.  Nor does it affect the particular rights and interests of an individual.  Hence, it is very unlikely that any legal proceeding could be brought in the courts to enforce the simple majority requirement in s 40 of the Constitution and declare the relevant Standing Order invalid.

Nonetheless, the Houses of Parliament are bound by the Constitution and obliged to give it effect.  The Constitution provides that it is a simple majority of the House that has the power to decide questions before it.  Does that then mean that a simple majority can suspend Standing Orders despite the requirement in the Standing Orders for an absolute majority?  This raises a manner and form question.

While there is a form of ‘double entrenchment’ of the absolute majority requirement, in that an absolute majority (absent leave or notice) is also required to suspend Standing Orders to move the amendment or repeal of the absolute majority requirement,  the problem is that there is no overriding power (such as the Colonial Laws Validity Act 1865 or the Australia Acts 1986) to provide the source of power for imposing such a manner and form constraint.  The Commonwealth Constitution does not authorize a manner and form constraint of this kind, and as noted above, s 50 of the Constitution is subject to the application of s 40 of the Constitution.  The position is therefore analogous to that of the purported manner and form constraint in s 3 of the Flags Act 1953 (Cth) which requires the approval of a majority of electors before a new national flag can be declared.  It may have moral and political force, but a law enacting a new national flag could still be enacted by ordinary legislation passed by Parliament without a vote of the people.

Similarly, the absolute majority requirement in the Standing Orders only has effect so long as a simple majority of the House chooses to accept its application.  The House might consider that there is good reason to apply this rule as it is more conducive to stability in the procedure of the House.  But ultimately, it is the House that is the master of its proceedings, and the Constitution makes clear that it is a simple majority of the House that may exercise that control in determining questions before it.  This is consistent with the actions in the Senate in 1968 and 1969 when a simple majority overrode the requirement for an absolute majority in the Standing Orders by the means of dissenting from the ruling of the President of the Senate.  In those cases where a vote has been lost for the lack of an absolute majority, it can be assumed that a simple majority of the House acquiesced in that ruling.

Conclusion

The requirement for an absolute majority to pass a vote to suspend Standing Orders is not as great an impediment as it appears.  It rests upon the acquiescence of a simple majority of the House.  It can be overridden by a simple majority if there is good cause and will to do so.  From a policy point of view this is important, as otherwise Standing Orders could impose substantial barriers to the passage of legislation (such as a three-quarters majority for the introduction of certain bills).  But there may also be good policy reasons why more modest special majorities, such as an absolute majority, are imposed to prevent the disruption of parliamentary business due to an accidental simple majority arising on a particular occasion due to unexpected absences.  Members of major parties, particularly those who anticipate forming government in the near future, may see value in maintaining support for such a Standing Order in the long-term.  It is, however, a matter for the House to determine, by a simple majority.

Anne Twomey is a Professor of Constitutional Law and Director of the Constitution Reform Unit at the University of Sydney.

Suggested citation: Anne Twomey, ‘Can Standing Orders Prevent a Simple Majority of the House of Representatives From Passing a Bill Against the Government’s Wishes?’ on AUSPUBLAW (5 February 2019) <https://auspublaw.org/2019/02/can-standing-orders-prevent-a-simple-majority>