State parliaments' departure from the practice of standing orders: The evolution of Australian parliamentary practice

Abstract

This article analyses the extent to which contemporary Australian state parliaments observe the procedures and practices of the British House of Commons and the potential reasons for departures from those procedures. It considers a recent example of significant divergence from House of Commons practice. In Western Australia's state parliament, the speaker exercised the casting vote on a motion of closure (a ‘gag’ motion). The article examines this procedural divergence for possible insights into the nature of, and reasons for, Australian departures from House of Commons practice.

本文分析了澳大利亚州议会在多大程度上遵循了英国下院的程序和惯例，以及偏离这些程序的可能原因。作者研究了最近一起偏离英下院惯例的事例。在西澳大利亚，议长会一锤定音，终结众声。本文研究了这一程序上的区别，探讨了澳大利亚议会异于英国下院这件事的本质和原因。

Keywords:

• Australian state parliaments
• gag motions
• parliamentary practice
• speaker's casting vote
• standing orders

Notes

¹I wish to acknowledge Dr Jim Thomson SC for his guidance and confidence.

²There may be some minimal differences in the wording of certain clauses, but the substantive effect is almost exactly the same.

³In 1844 British constitutional theorist and clerk of the House of Commons, Thomas Erskine May, wrote Erskine May's treatise on the law, privileges, proceedings and usage of Parliament (Erskine May [Limon and McKay] 1997; [Jack] 2011).

⁴Also commonly referred to as the conventions of the house.

⁵ Telstra Corporation v Treloar [2000] FCA 1171 at [23].

⁶Pursuant to Chapter 3 of the Australian Constitution, the highest judicial power is vested in the High Court of Australia and its decisions are wholly binding on courts below it.

⁷SO: 106 provides that: The motion ‘That the question be now put’ may be moved by any member who has not spoken in the debate, but not so as to interrupt a member speaking. The motion will be put immediately and without debate and if carried, the Assembly will vote immediately on the question before it. If the motion is negatived, debate is resumed.

⁸The Legislative Assembly of the 38th Parliament of Western Australia comprised Liberal–National: 28, Australian Labor Party: 28 and Independents: 3 (Western Australian Electoral Commission 2008).

⁹SO: 141 provides that ‘in the event of an equality of votes, the Speaker may give a casting vote’.

¹⁰Thus, on the question ‘That a bill be read a third time’, the Speaker would vote in the negative to ensure there is a further opportunity for the House to consider the bill while a majority has not yet been achieved.