As promised in our final sitting week blog of 2020, we’re back to dissect a unique procedural event that occurred during the marathon debate on the Electricity Infrastructure Investment Bill 2020 – the use of Standing Order 163!  

What is Standing Order 163 and why is it important?

Under the Constitution Act 1902 (NSW), the Legislative Assembly and Legislative Council are constituted as separate and sovereign Houses. The Constitution Act 1902 also restricts a member of one House from being elected, sitting or voting as a member in the other. In practice, members of each House are treated as ‘strangers’ in the other, with each House possessing a common law power to exclude and remove any person who enters onto the floor of the Council without permission.

With this in mind, Standing Order 163 (SO 163) can be seen as an exception to the rule.

SO 163 is the practical mechanism by which the House invites a minister in the Legislative Assembly to sit in the Council and explain the provisions of a bill relating to any department administered by that minister. It gives effect to section 38A of the Constitution Act 1902 and sets out the procedure the Council must use when utilising this power, including specific rules for a member who wishes to move this type of motion.

Specifically, a member who seeks to move a motion under SO 163 does not need to give notice to other members of the House and can move it at any time after the introduction of the bill. The question on the motion is put without debate or amendment, with the mover of the motion allowed to make a statement of up to 10 minutes.

How often has the Legislative Council used SO 163?

Although the provisions of SO 163 were first adopted in 1934, the use of this standing order has been rare. In fact, the Council has only agreed to a motion under this standing order on one occasion, in June 1990.

This happened when the Hon Elisabeth Kirkby (Australian Democrats) moved a motion in the Legislative Council to have the Hon John Fahey – then-Minister for Industrial Relations and Employment in the Legislative Assembly – sit in the Council and explain a series of controversial bills relating to industrial relations. Ms Kirkby’s motion was agreed to on the voices.

A few weeks later, ‘constitutional history’ was made (according to the Chair at the time), when Minister Fahey sat at the table of the House during debate over the next 11 sitting days! During this time, members were able to address questions about the bills to Minister Fahey, with the Minister answering as he saw fit. However, this was the extent of participation permitted, as both SO 163 and the Constitution Act 1902 prevent the Minister from voting.

FUN FACT: By the time Minister Fahey took his seat in the Council his ministerial responsibilities had changed, which caused one member to question whether he truly was the ‘same character’. In response, the Chair determined that ‘he may not be the same character but he sits here as the Minister who had the carriage of these bills in the Legislative Assembly and that, of course, qualifies him under the terms of the standing order’ .

So what happened with the motion(s) moved last year? 

For procedure nerds, the final sitting weeks of 2020 offered much excitement, as Mr Latham (One Nation) made two attempts to move a motion under SO 163 during debate on the Electricity Infrastructure Investment Bill 2020.

When he made the first attempt on Wednesday 19 November, Mr Latham argued that, with complex and detailed legislation being debated and possibly amended, it was necessary for the Minister for Energy and Environment to sit in the Council to explain the decisions behind certain aspects of the bill. However, the House voted against the motion to invite the Minister onto the floor, 17 ayes to 20 noes.

At 3.00 am on Wednesday 25 November, during an almost record-breaking debate on the bill, Mr Latham moved a SO 163 motion for the second time. This was particularly interesting as it took place when the House was in committee of the whole. As a result, the Chair sought advice on two points: first, whether the House could consider the matter in committee; and second, whether it could consider the SO 163 motion for a second time, given it had earlier voted against it. The President confirmed that the vote could proceed and the House again negatived the motion on division, 17 votes to 4.

While the House didn’t choose to invite the Minister onto the floor as it did in 1990, the moving of this motion (twice) shone a light on some of the important powers available to members of the Legislative Council, as well as the restrictions placed on members of the other House.

Indeed, as Mr Latham observed, the Minister for Energy and the Environment (who was sitting in the advisor’s box just outside the floor of the chamber for much of the debate) needed only to ‘stand up and take about eight steps to enter this Chamber to speak’. But without the consent of the House, it’s not so simple for a member of the other House to break on through to the other side…

Keen to read more about SO 163? Check out the entry in the Annotated Standing Orders here.

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