John Hogg (President) Share this | Link to this | Hansard source

Order! I will now proceed to make a statement, as I said I would, in respect of the question by Senator Abetz during question time. At question time, there was discussion on points of order about a question asked by Senator Abetz. I undertook to consider the matter further and make a more detailed statement to the Senate.

Senator Abetz’s question, as recorded in the transcript, was:

My question about the urgency for releasing an interim report on Fuelwatch is directed to the chair of the Economics Committee. What was the urgency for releasing an interim report on Fuelwatch?

Senator Abetz subsequently indicated that he considered that his question should be treated as a question under standing order 72(1) under which a senator may ask a question of another senator about business on the Notice Paper of which the other senator has charge. The question could not be treated as a question under that provision, however, because there is no business on the Notice Paper relating to the committee report concerned. That report was presented yesterday. No motion in relation to it was moved and, therefore, there was no business relating to it on the Notice Paper. The listing of the inquiry under the list of committees at the back of the Notice Paper is not an item of business.

Also, the question was to the chair of the committee and concerned the presentation of the report of the committee and, therefore, was clearly a question about the activities of the committee. The question, therefore, has to be treated as one under standing order 72(2). Under that provision, a question may be put to the chair of a committee only on notice or by leave. It became clear that notice had not been given of the question. Leave had not been sought to ask the question. Therefore, the question was out of order and I ruled to that effect.

It was suggested to me that I allow Senator Abetz to make a second attempt to ask the question by seeking leave to ask it. That course would normally be followed where a senator is seeking to make a statement or otherwise speak in circumstances requiring leave. Question time, however, is a structured occasion in which the chair is expected to adhere to the customary order in giving the call for questions to be asked.

In that context, it is not appropriate for the chair, having ruled a question out of order, to give the senator concerned an immediate opportunity to ask the question again as it ought to have been asked in the first place. That would deprive another senator of his or her due turn in the order of question time and would disrupt the customary order of asking questions. The appropriate course for me, therefore, was to proceed to the next question, which would leave open the option for the question which was out of order to be attempted again later in the normal order of question time.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

by leave—I move:

That the Senate take note of the statement.

Mr President, I thank you for the courtesy of providing me with a copy of your statement. I say at the outset that no-one should interpret my statement now as questioning in any way the integrity with which you have approached this issue. It is solely on the technical aspects that I seek to reflect.

Firstly, given the ruling as to the non-application of standing order 72(1) as it relates to other senators, it is, with respect, hard to imagine any circumstances where that standing order might apply. One wonders how that section would, in fact, ever apply. If examples cannot be provided then the standing order should be amended and I invite the Procedure Committee to examine the matter. In particular, I refer to page 170 of the 11th edition of Odgers where there is a heading ‘Questions to senators concerning business’. It says:

At the time provided for questions, in addition to questions to ministers concerning public affairs and to committee chairs, questions may be asked of senators concerning business of which they have charge (SO 72(1)).

Then it says what the questions cannot do. There is no requirement there that leave is required.

At the very best, what I would suggest is that the standing orders are unclear and therefore should be clarified by the Procedure Committee. I request them to do that because I believe those of us who do seek to read standing orders, even those of us with a legal background, interpret them in a particular way and then we have confusion in the interpretation of the standing orders by senators. I think just for the future for any senators that should be clarified.

The next issue is the precedent—and I think this is a very concerning and very dangerous precedent—of the chair not allowing a senator to seek leave. This afternoon I sought leave and the chair refused to put that request to the Senate. I believe that the Procedure Committee should have a look at that as well, because I believe we will be in a very unfortunate circumstance in the future if it is up to the chair to determine whether or not a senator is allowed to seek leave from the chamber in relation to a particular matter. I invite the Procedure Committee to have a look at that.

Further, I submit that, if there is a procedural requirement to seek leave and a senator fails to do so, it is a dangerous precedent for the chair to interpret that as a deliberate choice and therefore deny the opportunity to seek leave to address the formality issue. I can foresee circumstances—which have happened to senators on all sides of the chamber—where senators get on their feet, start talking and are reminded by the chair that to proceed they have to seek leave. The senator stops, seeks leave and if it is granted then things proceed. In the statement that the President has just made we are advised:

Senator Abetz subsequently indicated that he considered that his question should be treated as a question under standing order 72(1) ...

I have perused the Hansard. At 2.21 pm I asked the question. We then had a flurry of points of order. Again in the Hansard, at around about 2.22.30 pm, I get to my feet and say:

Thank you, Mr President. I do not seek to canvass that approach, but I seek leave to ask the question.

At no time, on my reading of the Hansard, unless I have overlooked something, could it be asserted that I indicated that I considered that my question should be treated as a question under standing order 72(1). My good friend and colleague Senator Ellison said that, and that is fine. But my rights as an individual senator cannot be prejudiced by the intervention of another senator in relation to a point of order. What is more, I am respectfully saying that on my reading of the Hansard I did not indicate that I was relying on standing order 72(1). I asked a question. Opposition senators interjected saying, ‘Leave is required.’ There was a whole host of points of order. The President ruled on all those points of order. I then got up and said, ‘I don’t want to canvass any of that; I seek leave to ask the question.’ And then that was denied by the chair. I honestly believe that the factual—

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

It wasn’t denied by the chair.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Forshaw interjects. I am trying to deal with this on a technical basis, not on a personal basis, Senator Forshaw.

John Hogg (President) Share this | Link to this | Hansard source

Senator Forshaw, cease interjecting. Senator Abetz, address your comments to the chair.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

What I say to the chair is that, with respect, I am not sure that it can be asserted, given my reading of the Hansard, that I indicated and considered that my question should be treated as a question under standing order 72(1). I at no stage engaged in that debate. Other senators raised points of order. When that was over I then sought leave and my request for leave was not even put to the Senate. I believe that that is a matter of concern because if that becomes the practice in this chamber then, when ministers or other senators forget to seek leave on occasions, the procedures will so tie down the Senate that it will become unworkable.

In relation to the President’s comments in the Hansard, there were a number of occasions where it was suggested that I chose not to seek leave. I would invite anybody to read the Hansard and see where at any stage during question time I said that I was choosing not to seek leave. In those circumstances, if simply the fact that you do not seek leave becomes the test—you do not seek leave, therefore it is deemed you have chosen not to seek leave—then we as an opposition might be asking those rulings apply to ministers in the future when they overlook to seek leave.

In the current circumstances it was my honest assessment of the standing orders that I did not need to seek leave. I am prepared to accept that that may be an incorrect interpretation. I would be willing to state my interpretation as being correct, but I accept that the President has made a ruling. But if the only problem with my question was that I had not sought leave—and that seems to be the basis, reading the Hansard, of the President’s ruling—then we have the unfortunate situation where if anybody does something in this chamber that requires leave but they overlook to seek leave, or they think they do not need leave but they do and that is pointed out, they are not given another go; they are sat down, ruled out of order and are not allowed to seek leave again. I think that would be a very dangerous precedent.

Having said all that, Mr President, can I repeat—lest there be any doubt—that I fully accept your personal integrity and the way that you have approached this matter, but I trust you will accept my integrity and that I respectfully disagree and have some concerns as to what these rulings will mean for the future conduct of the Senate. We are not going to be able to resolve that tonight but I would invite the Standing Committee on Procedure to have a very close look at this issue. I would also invite a reconsideration of the assertion that I personally subsequently indicated and considered that this question should be treated as a question under standing order 72(1), because nowhere in the Hansard can I find myself making that statement. I understand that Senator Ellison made that point and, if I may say so, I thought he did it very well, but he was ruled out and of course that is the way of the world. That is why, when I rose to my feet again, I said, ‘Thank you, Mr President. I do not seek to canvass that approach but I seek leave to ask that question.’ And that was when the chair intervened to say, ‘I will not even allow that to be considered by the Senate.’ I think that is a dangerous precedent, and I invite the Procedure Committee to look at those matters. I thank the Senate.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I rise to indicate support for your ruling, Mr President. I think that it was appropriate. With due respect to Senator Abetz, I think he is missing the central issue. I think he genuinely believed that his question was in accordance with the standing orders in the way in which he put it together, but it turned out that he worded it inappropriately and you accordingly ruled him out of order. I agree with that approach and, having been ruled out of order in the formatting of the question, as senators on both sides would know—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

It wasn’t the formatting of the question.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Well, the putting together of the question. It was inappropriate with the—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

No, no.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Look, I did not interrupt you, Senator Abetz, so I would appreciate your not engaging in a cross-debate. There have been circumstances in the past on both sides during question time where individuals have posed questions, and indeed supplementary questions, in an incorrect way and they have been ruled out of order. They have been asked to sit down, they do, and the next question is brought on from whichever side that should be. I agree with the views that you have offered, Mr President. In terms of the Procedure Committee, Senator Abetz wants to refer it there. The Procedure Committee can deal with the issue if they so determine. I, on this side of the chamber, support your ruling and, with due respect to the opposition, frankly I think there are too many lawyers over there. We got ourselves into the position of a very lengthy debate which, unfortunately, wasted a considerable amount of question time—I think approximately 20 minutes; that is unfortunate, but people are entitled to give their views. But, unfortunately, that did occur. If the Procedure Committee wants to deal with the issue, then so be it, but I think you are to be congratulated on your ruling and it was appropriate and correct under the standing orders.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Mr President, in speaking to the motion to take note of your statement I just want to raise another issue, one which I do not think quite arrived today from what has been said of the way this went—although I have not had the advantage of reading the Hansard. I think that someone was suggesting that if a senator sought leave to ask a question and leave was denied—and I am perhaps asking that you or the Procedure Committee might pursue this—then that senator has not asked a question and would then be entitled to then ask a question. In the instance this morning it was a question of the minister. So what I am just raising—and as I say I do not think this quite got to that although I, like many others, was confused with the various points of order and the rulings on them at the time—is that I do think it is worth getting a clear indication that if leave had been sought to ask a question, and if leave was denied, then a question had not been asked and it would not preclude that senator from then asking another question. I say that on the basis of your comments on the issue at hand: that you have an order and, if someone asks a question or does not ask a question that is ruled out of order it then passes on to the next one on the list. I think that would be inappropriate in the circumstances that where leave was sought, leave was denied—which means no question has been asked—and therefore that same senator would not be in breach of your ordered form if he then asked a question that did not need leave.

Kerry O'Brien (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I do not propose to take much of the Senate’s time at all but I do feel compelled to respond to Senator Abetz’s suggestion that standing order 72(1) would have no application because there was nothing in the Notice Paper that it might refer to. I simply suggest that if you look at the Notice Paper, for example, one might have asked Senator Barnett a question about his notice of motion that appears on page 18, a matter which he clearly has control of in accordance with that standing order, or Senator Wortley about a notice of motion on page 19.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

So what is your point?

Kerry O'Brien (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

The point I am making is that Senator Abetz suggested that, in the absence of the interpretation that he preferred earlier today about standing order 72(1), there was nothing in the Notice Paper that that standing order could apply to. The point that I make, Senator Macdonald, is that there clearly are a number of matters able to be pointed to in today’s Notice Paper on which a question might have been asked under standing order 72(1). I merely draw to the attention of the Senate the suggestion that it is not a correct proposition to suggest that there is nothing else in the Notice Paper that might apply to and therefore the standing order would be meaningless.

Chris Ellison (WA, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Let us clarify one matter that Senator Sherry touched on in relation to Senator Abetz. On your ruling, Mr President, Senator Abetz’s mistake was not to seek leave at the outset of asking that question. That is really the issue here. He failed to seek that leave, and that is something which many senators in this chamber do. As a member of the Standing Committee on Procedure, I give notice that I want to raise the issue of seeking leave. I think at no stage and under no circumstance should a senator ever be stopped from seeking leave. If that is not clear, I think it should be put into the standing orders of this Senate. If this Senate is to pretend to be the guardian of free speech and all the things people like to say about the Senate and its committees, and yet it is true that in any proceedings in this chamber a senator can be denied that opportunity to seek leave, we have a very serious problem indeed in this chamber. I think that needs to be addressed as a very serious issue.

I accept the ruling, and the ruling will indicate that there are situations where you can stop a senator from seeking leave. If that is the case, then the standing orders should be fixed because, in my opinion, no senator should ever be stopped from seeking leave. That is a right that should exist for each and every senator in the chamber in all circumstances. Whether or not that leave is granted is another matter, but it should be made very clear in the standing orders. I think, with respect, the standing orders could be clearer. When I look at how standing orders 72(1) and 72(2) interact, I have some very serious questions indeed as to why you even have them. You could make the wording a lot clearer. In fact, the drafting is really not clear; I have seen much clearer drafting in my day, I can tell you. Why would you have a situation where senators can ask a question of other senators relating to any matter connected with the business on the Notice Paper and then go on to prescribe how questions may be put to a chairman of a committee? Is 72(1) precluding a chairman of a committee being asked?

Kerry O'Brien (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

No, 72(2) covers that.

Chris Ellison (WA, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Then that is not clear, because the fact is this: if 72(2) pretends to cover the ground in relation to the chairman it should say that, and 72(1) should say ‘any senator except those in the capacity of committee chairman’. That is something that I want to raise with the Procedure Committee as well.

I take your point, Mr President, about what constitutes business on the Notice Paper, but the question that really troubles me is that the standing orders provide for a situation where any senator can be prevented from seeking leave. All senators, under any circumstances and at any stage, should have the right to seek leave and it should then be up to the Senate as to whether that is granted or not. If the standing orders do not allow that, then we have a deficiency in this chamber which we should look to fix rather than perpetuate.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Mr President, I think this is the first chance I have had to congratulate you on your election. I entirely agree with the comments of Senators Sherry and O’Brien that your ruling was correct. I listened to your statement closely and I support it fully. It seems that this issue may run on for a little bit of time, with senators indicating that they would like the Senate Standing Committee on Procedure to look at it, so we may well get an opportunity to have a fuller debate, and hopefully it is not one that is dominated by lawyers arguing about angels on the head of a pin—and I say that as a lawyer.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Another one!

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Yeah, you’re right, there are too many of you in the place!

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

But I do not attempt to give a legal opinion, Senators! One of the mistakes that lawyers and others make is to engage in sophistry—false argument. You create a conclusion and then you try and develop a clever argument to lead you to that conclusion. In some cases what happens is that you actually leave out pertinent facts or pertinent material or evidence that should be put.

The assertion has been made, Mr President, that you denied Senator Abetz his right to seek leave. I regard that as a reflection upon the chair and I do not accept it. That may be debated more fully. My recollection of what happened during question time was that, as has been stated, Senator Abetz rose to his feet after being given the call as an opposition frontbencher in accordance with the list agreed between the parties and the whips of the order of questions for today. That is a very important point because Senator Abetz was given the call on the basis that it was the turn of the opposition to ask a question. That is a procedure that is agreed between the parties, as we know.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

It’s not in the standing orders.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

We also know that it is not in the standing orders, but it is a procedure that has been long followed in this place to ensure an orderly flow of questions across the chamber between the government, the opposition and the minor parties and Independents. It is to ensure that senators from the opposition particularly get a majority of the questions and a guaranteed number of questions per day. We also know, of course, that in the Senate, unlike the House of Representatives, we have a specific time laid down for the period of question time. There is no set procedure, because of agreements made some years ago, regarding the way in which question time runs in the Senate. You need to bear that in mind because these fine, technical, legal points—or sophistry, in my view—and interpretive points being made about the standing orders are made without having regard to the fundamental understanding on the way in which question time works.

Senator Abetz, as I said, rose to his feet. No-one else did; it was his side’s turn to ask a question and he clearly was on their list of questioners. He asked his question. It was ruled out of order, as Senator Sherry has said, as other questions have been ruled out of order in this place. I recall a question being asked about a particular political party and its policy and because the wording was not quite correct it was ruled out of order. It happens with supplementaries, as we know. That is the end of the matter. You go on to the next person on the list on the other side of the chamber to ask the next question. That was what was going to happen. But there was a point of order taken by Senator Ellison endeavouring to argue that this supposedly clever question time tactic today was in order—and it clearly was not. The assertion that Senator Abetz, who, after some debate and shouting across the chamber, sought leave, was denied an opportunity to seek leave, is a false assertion. You, Mr President—and this is in the Hansardmade it very clear that the call for the next question was to go to the Greens in accordance with the understandings.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Excuse me, Michael, the President has another function—

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

If you want to throw the understandings out, come out and say that what you want in the future is a different system for question time. That is a whole new matter—that is where you are heading. You, Mr President, pointed out that you were going to give the call to the Greens. You also on a number of occasions pointed out that it would be open to members of the opposition, when their turn to ask a question came, to seek leave at that time to ask the same question and it would be considered. That is the entire context. That is the entire way in which these proceedings unfolded. I think it is completely disingenuous to stand up in the Senate and try to argue on the basis of one aspect of that whole debate that the chair deliberately denied a senator the opportunity to seek leave. And to go on and suggest that somehow this—

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Mr President, I raise a point of order. I was trying to interrupt Senator Forshaw nicely but he has ignored me. My point of order is repetition. But the real point I want to get across to Senator Forshaw and everyone else here is that, Mr President, your presence is required elsewhere at the moment—you have other duties.

John Hogg (President) Share this | Link to this | Hansard source

Senator Macdonald, thank you for your intervention. There is no point of order. I thank you for your concern about my presence elsewhere.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Another correct ruling, Mr President! But I will wind up.

John Hogg (President) Share this | Link to this | Hansard source

Thank you, Senator Forshaw.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I was planning to wind up, which is why I was ignoring Senator Macdonald. He may wish to seek leave for you to preside at another event, but you will not need that of course. I want to conclude by saying that I think it is disingenuous to put forward the argument that was put forward by Senator Abetz, and subsequently Senator Ellison, without having regard to all the understandings that exist in this place about how question time operates and without referring to all of the debate, including your clear advice and invitation to the opposition that they would be able to seek leave when their turn to ask a question came again. I think it was a reflection on your ruling to suggest that you denied a senator the opportunity to seek leave.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

To quickly sum up the debate, it is unfortunate that what was a very good technical debate about some issues of principle has been somewhat lowered by Senator Forshaw’s intervention. I note that he did not make a strong start by congratulating you on your election to the presidency of the Senate unopposed—but I think we now know whose vote was the informal one in that ballot! There was actually a ballot. And can I say publicly on the record, although it was a secret ballot, I voted for President Hogg and I have no regrets about having voted for Senator Hogg, and any suggestion by Senator Forshaw that the allegation is that the chair deliberately ‘denied’—and words to that effect—and that there is a reflection on the chair, I repudiate. At the very outset I indicated that I did not in any way want to question the integrity of the President but I did want to join issue in relation to the technicalities.

Can I actually deal with those technicalities. There is nothing in Senator Forshaw’s contribution that deals with the technicalities. Senator Sherry suggested that the question had been ruled out of order and that leave had not been sought. But I think the principle that Senator Ellison outlined is a very important one. In relation to Senator O’Brien’s contribution, on reflection I think he may well be right. I would like to relook at section 72(1), given the comments he made. He may well be right—which gets me thinking: I understand the Clerk is busily rewriting another edition of Odgers and if that, perchance, happens to be the case I would gratuitously suggest that these matters might be clarified at some greater length in Odgers so the confusion that occurred today can be overcome.

Now that I have had the opportunity of reading the totality of the President’s statement, I would like to draw issue with another point. The first one is in the third paragraph where it was suggested that I had indicated that I considered the question should be treated as a question under standing order 72(1). With great respect, I made no such point and sought leave.

In relation to the second last paragraph of the President’s statement, it says:

Question time, however, is a structured occasion in which the chair is expected to adhere to the customary order in giving the call for questions to be asked.

Fully agreed; no objection to that. The statement goes on:

In that context it is not appropriate for the chair, having ruled a question out of order, to give the senator concerned an immediate opportunity to ask the question again.

Can I say with great respect, Mr President, my request to seek leave would not have been the chair giving me the opportunity to ask the question; it would have been the Senate granting leave that would have allowed that opportunity to arise. So in that aspect I think that the statement also needs some reconsideration because it would not have fallen on the chair to allow an immediate opportunity to ask the question again; it would have been up to any one single individual senator to simply say, ‘Leave denied,’ and that would have been the end of the story. So in relation to that, I would also suggest that further reflection might make for a more robust statement, and I only say that because these statements are then used as guidance by other senators in the future. But there are, with respect, two major issues that I think on any objective analysis cannot be sustained.

Having said that, Mr President, unfortunately I need to repeat yet again that nothing in what I have said in taking note in my first speech or in summing up now is in any way, shape or form to be interpreted by anybody, including Senator Forshaw, to be a reflection on you or the way in which you conduct yourself in relation to your motives. This is only about the technicalities and, I think, clearing them up. That is why Senator O’Brien’s contribution I thought was a good contribution and it has got me thinking. I think that on these sorts of issues it is good to have dispassionate debates to deal with the technicalities. I thank the Senate for the leave that was granted to allow me to move the motion.

Question agreed to.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Order! The time for general business having expired, the Senate will now proceed to consideration of committee reports, government responses and Auditor-General’s reports.