Sunday, May 12, 2024

Why Does Suspending Standing Orders In The Tasmanian Assembly Require A Two-Thirds Majority?

UPDATE:  Following this article - and I have been told this article had some influence - the House on 14 May suspended Standing Orders 358 and 359 for the current Session, replacing them with this: 

"358 Suspension of Standing Orders

Any Standing Orders or Orders of the House, except Standing Order No. 94, may be
suspended on a Motion duly made on Notice or without Notice, provided that such
Motion has the concurrence of a majority of the Members present."

This is not necessarily a permanent change.  

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One thing that I have noticed in Tasmania's parliamentary debates that I find strange is that suspending standing orders without notice requires a two-thirds majority.  In the Standing and Sessional Orders from the previous term this appears as item 358:

"358 Standing Orders not suspended without Notice.

In cases of urgent necessity any Standing Order or Orders of the House, except Standing Order No. 94, may be suspended on a Motion duly made without Notice, provided that such Motion has the concurrence of a two-thirds majority of the Members present.

359 Motion for suspension carried by majority. 

When a Motion for the suspension of any Standing Order or Orders appears on the Notice Paper, such Motion may be carried by a majority of the Members present."

(Standing Order 94, for anyone wondering, is the procedure for rescinding previous votes, which requires three days notice and, if the decision is less than a year old, support of an absolute majority).  


I find the two-thirds requirement odd because in the federal House of Representative, only an absolute majority is needed, though even that can be hard to obtain when members are away.  It seems especially odd that Tasmania has a two-thirds requirement when in fact no single party has ever had a two-thirds majority on the floor (in 1941, the Cosgrove government did win two-thirds of the seats, the only time that's ever happened.)  At federal level, most governments command an absolute majority if all their MPs are there, and a few governments have even won two-thirds in their own right.   

The two-thirds requirement to suspend Standing Orders has often got in the way when the majority of the parliament has wished to suspend Standing Orders to do something else, but the other side won't let it.  Frequently this has been the Opposition, but in minority parliaments it is sometimes the case that the opposition and crossbench want to change the course of parliamentary business but the government says no, and so despite the majority of MPs wishing it to occur it doesn't happen.  

As best I can determine, no other Australian house of government has this two-thirds requirement.  I append the standing orders concerning amending standing orders from the other houses below (except for Victoria which I am not sure even has one).  I have found references to Tasmania having this rule back to 1980, and suspect it is considerably older than that. I do not know when it commenced or if there is any special reason why Tasmania should have it when none of the other Houses do, or if maybe it has just been there forever, like a decades-old error on Wikipedia that has persisted because nobody has fixed it.

Looking through past Hansard references I've found plenty of awareness among MPs that this standing order exists, and also comments (eg by Ray Groom in 1997) that it could be changed by simple majority, but finding any explanation of why this rule exists in Tasmania where nobody else has it is difficult (perhaps because reflecting on the Standing Orders might be usually frowned upon).  I did find one comment by Bob Brown in 1993 that it existed to protect Private Members time from being taken away by governments for other purposes; if that is the case and is a genuine Tasmania-specific issue then that could be dealt with by a carve-out such as the one protecting Question Time in NSW (see below).  

I do not see why the Liberal Party, which won only 14/35 seats at the election should at this time have the privilege of unilaterally blocking the suspension of standing orders when neither the Labor Party which won ten seats nor the crossbench which won eleven can do so by themselves.  Sometimes there are very good reasons why Tasmania does things differently but I would be very interested to know why Tasmania is the odd one out in this regard.  

UPDATE: An especially helpful reader has advised me of content in the Companion to the Standing Orders that relates to the update history of this standing order!  In the original version from 1857 Standing Orders couldn't be suspended without notice.  The ability to suspend in cases of "urgent necessity" (whatever that is) dates from 1892, and the exemption for the rescission clause from 1912.  A 2017 amendment was a mere renumbering.  Essentially this requirement is a nineteenth century procedural fossil!

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Federal

47 Motions for suspension of orders

(a) A Member may move, with or without notice, the suspension of
any standing or other order of the House.
(b) If a suspension motion is moved on notice, it shall appear on the
Notice Paper and may be carried by a majority of votes.
(c) If a suspension motion is moved without notice it:
(i) must be relevant to any business under discussion and
seconded; and
(ii) can be carried only by an absolute majority of Members, or
by a majority of Members present if agreed by the Leader of
the House and the Manager of Opposition Business.
(d) Any suspension of orders shall be limited to the particular
purpose of the suspension.
(e) If a motion for the suspension of orders is moved during Question
Time, after the terms of the motion have been proposed by the mover,
a Minister may require that further proceedings in relation to the
motion take place at a later hour, as set down by the Minister.

New South Wales

365. Suspension of Standing Orders

20 February 2023

(1) A Member may, at any time after 10.00am and up to 1.15pm, without leave,
move a motion to suspend Standing and Sessional Orders to deal with any
matter.
(2) A Minister may, at any time without leave, move a motion to suspend Standing
and Sessional Orders to deal with any matter.
(3) The mover, one other Member and the mover in reply shall be entitled to speak
to the motion for up to five minutes each.
(4) When the mover is a Member not supporting the Government, the response
shall be by a Minister and, when the mover is a Member supporting the
Government the response shall be by the Leader of the Opposition or a Member
deputed.
(5) Such motions shall not be entertained during Question Time.
(6) The closure shall not apply.

Victoria

(I actually cannot find a specific Standing Order relating to suspending Standing Orders in Victoria, but have found practical examples where Standing Orders have been suspended by motion without a two-thirds majority being needed.)

Queensland

4. Standing and Sessional Orders may be suspended 

The House may suspend or dispense with any Standing or Sessional Orders by motion carried by a majority of those members present. 

Western Australia

Suspension of orders

3. Any Standing or Temporary Order may be suspended at any
time except during questions without notice —
 (a) on motion with notice; or
 (b) without notice provided that a motion has the concurrence
of an absolute majority of the whole number of members of
the Assembly.

South Australia

402 Motion for suspension without notice (460) (398, 1999)

In cases of urgent necessity, any Standing Order or sessional order
may be suspended on motion without notice, provided that the motion
has the concurrence of an absolute majority of all the Members of the
Assembly.

403 Speaker to count House (461) (399, 1999) Amended Nov. 1998

When it is moved without notice to suspend any Standing or sessional
order or orders, the Speaker counts the House and if a majority of all
of the Members is not present, the bells are rung for up to three
minutes, during which time no Member may leave the Chamber, and
if a majority of Members is still not present the motion lapses.

404 Motion for suspension with notice (462) (400, 1999)

When a motion for the suspension of any Standing or sessional order
or orders appears on the Notice Paper, that motion may be carried by
the majority of voices.

405 Limitation of debate (463) (401, 1999)

The mover is in every case limited to ten minutes (including right of
reply) in stating the reasons for seeking the suspension. One other
Member may speak, subject to the same time limit. No further
discussion is allowed.

406 Limitation of operation (464) (402, 1999)

The suspension of the Standing Order or Orders is limited in its
operation to the particular purpose for which the suspension was
sought and, unless otherwise ordered, is limited to that day's sitting
of the House.

407 Limitations as to motion (465) (403, 1999)

After the orders of the day have been called on, no motion for
suspension without notice may be entertained until the consideration
of such orders is concluded, unless the motion for suspension is
moved for the purpose of expediting the progress of a Bill or
otherwise facilitating the business of the House.

Australian Capital Territory

Motion to suspend without notice

272. In cases of necessity, any standing order or orders of the Assembly may be suspended on
motion, duly moved, without notice: provided that such motion is carried by an absolute
majority of Members. (Amended 9 March 1995)

Limitation of suspension

273. The suspension of standing orders is limited in its operation to the particular purpose for
which the suspension has been sought.

Northern Territory

STANDING ORDER 252
Suspension of Standing Orders
When there is no question before the Chair, any Standing or Sessional Order or other Order
of the Assembly may be suspended by a vote of an absolute majority of 13 or more Members
when a motion is moved without notice.

STANDING ORDER 253
Majority Required to Suspend Standing Orders with Notice Given
When a motion for the suspension of any Standing or Sessional Order or Order of the
Assembly appears on the Notice Paper, the motion must be supported by a majority of
Members present in order to take effect.

STANDING ORDER 254
Limitation on Consequence of Suspension of Standing Orders
A suspension of Standing Orders is limited in its operation to the particular purpose for which
suspension has been sought.

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