George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

I rise on a point of order on the basis of standing order 86. As I understood your earlier ruling, when the standing order 86 point of order was taken, you did not entertain it because at that stage we were debating a procedural motion to suspend standing orders. That motion has been resolved in the affirmative, and so much of standing orders have been suspended as would prevent Senator Lazarus proceeding. However, as I understood your ruling, the time to deal with standing order 86 points was not on the procedural motion, but subsequently. The procedural motion having been disposed of, I do invoke standing order 86 which, might I remind you, provides that:

A question shall not be proposed if it is the same in substance as any question which has been determined during the same session, unless the order, resolution, or vote on such question was determined more than 6 months previously or has been rescinded.

I start with the basic proposition that standing order 86 must have some work to do. It cannot be the case that standing order 86 could always be avoided or got round by a tactical device. Having ruled, as you have, Mr President—and I respect, of course, and accept your ruling—that this point of order could not be taken on the procedural debate, it has to be able to be taken on the substantive debate or else standing order 86 would be in a nullity in all circumstances, and that cannot be right. There was a perfect circularity in what Senator Milne had to say before, a perfect circularity.

That being the case, the question is whether or not the motion of Senator Lazarus answers the description of being the same in substance as the motion that was put before this chamber some seven days ago. That is an exercise of the construction or the characterisation of the motion. But I would submit to you, Mr President, that, just as you cannot avoid standing order 86 through a procedural tactic, nor can you avoid the effect of standing order 86 by confecting a marginal difference to a motion.

The motion before the chamber has 15 paragraphs and it runs to two full pages. In all but one very small respect, it is identical to the motion that was resolved in the negative last Tuesday afternoon. The one difference is the addition, after all of the terms of reference in paragraph (1), of another term of reference:

The Committee will inquire into and report on the adequacy of Commonwealth oversight of the approval of coal seam gas projects in Queensland.

It is on that very slender basis that it is sought to be said that this is a substantially different motion.

The courts have decided time beyond number what the word 'substantial' means and, for the purposes of this parliamentary debate, it is enough to say that it means 'significantly dissimilar'. It would not, I would submit to you, Mr President, be possible to say that a very, very extensive motion varied by two lines is significantly dissimilar from an earlier motion from which those two lines were missing, particularly, by the way, because paragraph (2) of the motion adds nothing to it—because, if you look at paragraph (1)(c), 'approval processes for the development of projects for the export of resources or services', that would entirely comprehend the narrower reference to coal seam gas projects in paragraph (2). So, in fact, paragraph (2) adds very few words to the motion. But, more importantly, it adds no meaning to the motion because there is nothing that paragraph (2) adds to the motion that is not already comprehended by the extremely wide terms of reference in paragraph (1). So there is in fact no change at all in the meaning of the motion; and, if there is no change at all in the meaning of the motion, it is not possible that the motion could be treated as being substantially different.

On either of those bases, if paragraph (2) adds anything to the pre-existing motion, then it is something so slender that it could not be regarded as a substantial difference. But, as well as that, because the terms of reference in paragraph (1) are so sweeping and so comprehensive, there is nothing at all that paragraph (2) adds to the jurisdiction of this proposed committee that it does not already have. So it is not possible to conclude that it is in any way substantially different, and therefore standing order 86 ought to be applied. If it is not applied, the effect of that ruling would be to say that standing order 86 could never be applied, and that, with respect, could not be right.