Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Mr President, previously I moved a motion of dissent from a ruling of the presiding officer in the chair on 25 June 2015. I will be very brief but it is perhaps important to relate the background. In a deal done between the Greens and Senator Lazarus, a Greens member resigned from the chair of the Legal and Constitutional Affairs Legislation Committee and for some inexplicable reason, which was never explained to anyone, Senator Lazarus was appointed chair of that references committee of which previously Senator Wright had been the chair. I am not sure of Senator Wright's position in relation to these dealings. I do note, however, that Senator Wright has indicated that she will be leaving the Senate in the future.

At the time, there was a motion by Senator Lazarus to set up a select committee to inquire into, effectively, firearms. I do not have the exact terms of reference but the select committee to deal with firearms seemed to me to be a bit beyond the call of this chamber and again brought the Senate committees into disrepute.

When this deal was done, that Senator Lazarus take over the chair of the Legal and Constitutional Affairs References Committee in place of a Greens senator who had been allocated that position, his motion for a select committee was withdrawn. But instead a motion came forward that the Senate Legal and Constitutional Affairs References Committee be given the reference to inquire into fire alarms. I repeat that: the Legal and Constitutional Affairs References Committee was given a reference to deal with fire alarms in Australia.

Now, it happened that the Deputy President was in the chair, and I might indicate that I have the highest regard for the Deputy President. Mr President, I think indeed he is, since you were Deputy President, one of the best Deputy Presidents we have had for some time. But I raised with the Deputy President a point of order, the effect of which was that the Senate should not accept a motion referring a matter that had nothing to do with the Legal and Constitutional Affairs References Committee to that committee. I suggested that the person in the chair, who happened to be the Deputy President, should reject the motion because it was simply contrary to any reasonable understanding of the way this Senate operates and of the way the committee system operates, which so far has served the Senate and the Australian people very well.

The Deputy President, I suspect, being able to count the numbers, in brief time—in fact, I do not think he even gave me the opportunity of explaining my point of order—ruled that there was no point of order and, as a result of that, I gave notice that the Deputy President's ruling that there was no point of order be dissented from.

Mr President, I have no desire nor wish to embarrass any of the people who take the role of Presiding Officer. I am also—not that I have done any counting, but I suspect I can work it out—aware of how this motion would be dealt with were it put to a vote. But I did want to raise those issues and to make a plea to all senators that indeed if this Senate is going to regain the respect it once had for the work of its committees it really has to take a more sensible, serious and mature look at the way committees are set up, the particular references that committees take and the way they are dealt with. Otherwise, I regret to say that the high regard with which Senate committees have always been held over time immemorial—since Senate committees started in this parliament—will quickly dissipate.

But having said that, I seek leave of the chamber to withdraw my motion.

Leave granted.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

by leave—I hope that senators in the chamber know that I take the role of Presiding Officer and my position as Deputy President and Chair of Committees very seriously. I believe I conduct myself with fairness and integrity in all instances, even though I accept that I am not perfect.

I have reviewed both the Hansard and the tape of the incident to which Senator Macdonald sought to move dissension from my ruling. I can say that based on the Hansard, the visual footage and advice from the Clerk, that I believe I acted absolutely appropriately. And I would not act any differently if those matters came before me once again.

I think that Senator Macdonald made the inference that I made the decision based on being able to count the numbers in the chamber. Well, let me absolutely refute that. Quite frankly, I find that offensive. In every instance when I am in the chair I make my rulings based on the facts before the chair, and for no other reason. In fact, I think it is one of the great strengths of the Senate that Presiding Officers in the chair from all political parties do not allow politics to enter into their rulings in this place. This is not the House of Representatives. This is the Senate, and it is something that I am very proud to share along with my fellow Presiding Officers, whether they be acting deputy presidents or the President. So I absolutely refute that allegation.

I also refute the allegation that in some way Senator Macdonald simply has withdrawn his motion on the basis that he would not have the numbers to get it. Maybe he should test that because, again, I have absolute confidence in this Senate, that senators would base such a decision—a dissent from the chair's ruling—on the evidence before them, not base it on political parties. I think that has also been a very strong convention in this place. Again, I say that it has been one of the strengths of the Senate.

Now, I do not want to go into all the details which I could about why I made the decisions. But the Clerk has prepared a background note which goes to the process of how these motions get on the Notice Paper in the first place: the role of the President and the role of the Clerk in those, and there are some examples of what has happened in the past and ultimately who makes the decision about these matters, that being the Senate itself.

I simply seek leave to incorporate the Clerk's background note. I have followed the normal courtesies and provided copies of that in advance to the whips from the Greens and the government and also to the Independent senators.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

by leave—Mr President, I do not want to deny leave but this really is not a matter that involved my party or the government. It involved me. I have not seen the statement. Whilst I respect that the Deputy President has followed the procedures of giving it to the whips, unfortunately the whips have not given it to me—and neither they should. I am not blaming the whips, because this was my motion. It is not a government motion and it is not a party motion; it is an Ian Macdonald motion. So I do not want to deny leave but I would like this matter to be dealt with in, say, 10 minutes' time so that I can just have a look at the document that is sought to be incorporated.

Stephen Parry (President) Share this | Link to this | Hansard source

Can I assist in this matter? I want to make a couple of brief comments. Senator Marshall is going to hand a copy of the document over to Senator Macdonald. I will then invite you, Senator Macdonald, if you like, to make a comment on that. Senator Siewert?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I seek leave to make a short statement.

Stephen Parry (President) Share this | Link to this | Hansard source

Leave is granted for two minutes.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Macdonald just made a comment about Senator Wright leaving the Senate. I do not know why he brought that up. It had nothing to do with the discussion we were having and I am concerned that he has joined the two together. I would like him to know and I would like the chamber to know that it had nothing to do with Senator Wright, subsequent to the break, finding herself in the position that she is in—leaving the Senate.

Stephen Parry (President) Share this | Link to this | Hansard source

Thank you, Senator Siewert. That was one of the matters I was going to address, but thank you for clarifying that. I think Senator Macdonald—inadvertently probably—left that impression. But you have now clarified that. Thank you.

I have reviewed the matter as well. Even though the motion has now been withdrawn, inferences have been made. Could I state that, as far as I am concerned, I absolutely have complete confidence that the Deputy President acted in the most appropriate way possible. I cannot state that in any more emphatic way. I have found that the Deputy President is completely beyond reproach in relation to the way he attends to those matters. That is my assessment of the matter. Senator Macdonald, you may not have had the opportunity to read the document, but do you have any indication as to whether you wish to agree with leave or deny leave at this point?

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I have no objection.

Stephen Parry (President) Share this | Link to this | Hansard source

Leave is granted for Senator Marshall to incorporate that document. I believe that concludes this matter. We will move on.

The document read as follows—

OBJECTION TO A DECISION OR RULING OF THE CHAIR – BACKGROUND NOTE

Standing order 198 provides a method for dealing with an objection to a ruling or decision of the President (or whoever is in the Chair):

198 Objection to ruling

(1) If an objection is taken to a ruling or decision of the President, such objection must be taken at once and in writing, and a motion moved that the Senate dissent from the President's ruling.

(2) Debate on that motion shall be adjourned to the next sitting day, unless the Senate decides on motion, without debate, that the question requires immediate determination.

On 25 June 2015, Senator Macdonald lodged an objection to a decision by the Deputy President, Senator Marshall, that there was no point of order in relation to a motion moved by Senator Lazarus to refer a matter to the Legal and Constitutional Affairs References Committee. Senator Macdonald argued that the reference was not relevant to the committee and should therefore be ruled out of order. Senator Marshall dismissed the point of order both before and after the Senate voted to agree to the reference.

Following the President's report to the Senate that a written objection had been lodged, Senator Macdonald moved the dissent motion and the President informed the Senate that the matter would be dealt with on the next day of sitting unless any senator moved that the question required immediate determination. No such motion was moved.

The matter is now on the Notice Paper for the next day of sitting in the following terms:

DISSENT FROM DECISION

Order of the Day

*1 Objection to decision of the Deputy President

Consideration of the motion moved by Senator Macdonald―That the decision of the Deputy President on 25 June 2015 (to dismiss Senator Macdonald's point of order) be dissented from―(pursuant to standing order 198, adjourned, 25 June 2015).

Extracts from the Hansard are attached. [See Senate Debates, 25 June 2015, pp.43-44, 61.

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber/hansards/99c8aee1-aa1b-48da-8cdc-593fed2e4d62/0000%22]

Rules relating to notices of motion and references to legislative and general purpose standing committees

Relevant rules are as follows:

Discussion

Taking into account the rules for notices and references to legislative and general purpose standing committees, there was no basis for the President to have ruled the notice out of order at the time it was given and it was therefore entered on the Notice Paper. It is not the role of the President or the Clerk to make judgements about notices of motion beyond those that the standing orders authorise or require them to make.

Equally, there was no basis for the Deputy President, at Discovery of Formal Business, to rule out of order a motion to be moved pursuant to a notice that had been entered on the Notice Paper in accordance with the rules of the Senate.

Any senator may prevent a notice of motion being dealt with as a formal motion by objecting to that course of action. As the record shows, the Deputy President asked whether there was any objection to the motion being taken as a formal motion and there was not. Senator Macdonald's point of order did not refer to any known rule of the Senate and may well have been characterised as a debating point. It was dealt with accordingly.

In any case, the Senate decided the matter by agreeing to the reference. The decision was uncontested.

It is arguable that the Senate's decision to agree to the reference effectively also determines the question of dissent because a motion of dissent is essentially an appeal by the senator to the Senate from the decision of the Chair. The Senate has thus endorsed the decision of the Chair not to impede the vote by ruling a motion out of order.

The Senate has on numerous occasions referred matters to committees that were contested on the basis that the reference should have gone to another committee. All decisions as to such referrals are entirely a matter for the Senate, as are any decisions to vary, suspend or amend standing orders or to take a different path.

Options

There are several ways of dealing with a dissent motion:

Notice Paper

Notice Paper

A successful dissent motion is not necessarily interpreted as criticism of the Chair, simply an appeal from his or her decision or ruling.

On a motion of dissent from a Chair's ruling, the greatest latitude of discussion is allowed. If Senator Macdonald's motion is debated, it may therefore be expected that the tribulations of the Legal and Constitutional Affairs References Committee will be canvassed.

It is accepted practice for the President to participate in the discussion in order to clarify the ruling or respond to points which have been made. The same would apply to the participation of the Deputy President in discussion of dissent from his or her ruling.

Because of its capacity to undermine the Chair and disrupt business, the procedure for dissent is not a universal feature of parliaments (and does not appear in the United Kingdom, India and Canada, for example). However, it was an original standing order of the Senate based on South Australian practice.

Clerk's Office 10 August 2015