Chairman Of Committees

Suspension of certain standing and sessional orders agreed to.

Mr WHELAN (Ashfield) [12.28 a.m.]: I move:

That this House deplores the action of the Chairman of Committees when during the proceedings of the Committee of the Whole on the Crimes Legislation (Unsworn Evidence) Amendment Bill on 3 May 1994 he did not comply with the provisions of Standing Order 162 and therefore no longer possesses the confidence of the House.

Honourable members will recall that I raised points of order during debate in Committee on the Crimes Legislation (Unsworn Evidence) Amendment Bill under Standing Order 162, which reads:

If any objection is taken to a ruling or decision of the Chairman of Committees, such objection must be taken at once -

I complied with that requirement of the standing order:

. . . and if the Committee so decide (no debate being allowed, except a statement of the objection limited to five minutes), the Chairman shall leave the Chair and the House resume . . .

The essence of my objection and my motion of no confidence arises from the fact that the Chairman of Committees at that stage ignored the standing orders of this House. The standing orders that relate to my amendments are crystal clear. Before I deal with those amendments I wish to deal with the ruling that the Chairman of Committees referred to. Only one precedent was cited in the Parliament, that is, the precedent of 30 May 1928 in regard to the Financial Agreement Ratification Bill that was being debated by Mr Lang, the then member for Auburn. At that stage Standing Order 175B had been applied. Honourable members would be aware that, in the last couple of days, Standing Order 175B has been used on a number of occasions. During debate -

Mr West: There was no 175B notice.

Mr WHELAN: According to page 1105 of Hansard, under the heading "Financial Agreement 30 May 1928 Ratification Bill", the Chairman referred to Standing Order 175B and said:

I allowed the Leader of the Opposition to speak as a matter of courtesy, but under the circumstances I refuse to accept his motion of dissent. I rule now that there can be no discussion, and I will at once put the question.

The Chairman was saying in that debate that he refused to accept the motion of dissent because of the automatic gag that had been applied. Let us not get too excited about a single precedent in relation to the interpretation of standing orders in 1928. Standing Order 162 of this Parliament states that the Chairman of Committees has an obligation to leave the chair. That is what the Chairman of Committees should have done. He cannot point to a single precedent to disavow the standing orders, rules, regulations, laws and proceedings of this Parliament. He referred to an obscure case in 1928 and departed from the essence of
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Standing Order 162. If a Chairman of Committees decides not to accept an amendment for reasons best known to himself or herself, no Government or Opposition member can move an amendment. Amendments have to be within the discretion of the chairman at the time. That is my principal objection.

If the Parliament has a high-handed chairman, no amendments can be moved. The Chairman of Committees will have an opportunity later to speak in this debate, but that is exactly what is meant by Standing Order 162. That is what I put to the House. I submit that the amendments I moved were clearly in order. I will refer to that matter later. If my amendments were in order the Chairman of Committees had an obligation, as I had taken a point of order in accordance with the standing orders, to report to the Parliament. Standing Order 162 states, "the Chairman shall leave the Chair and the House resume, and the matter be laid before the Speaker". That is what I requested. I complied in all respects with Standing Order 162. It must be understood by honourable members that the Chairman deliberated and made his remarks in good faith. I have no doubt about that. But he was wrong. It would be different if he made his remarks in good faith and he was right, but he was wrong. On page 86 of the Hansard galleys of 3 May the Chairman said:

The long title of the bill currently under consideration is "a bill for an Act to abolish the right of an accused person to give unsworn evidence or to make unsworn statements in criminal proceedings and to make consequential amendments to the Crimes Act 1900 and the Mental Health (Criminal Procedure) Act 1990. Accordingly, the principle of the bill is to abolish unconditionally all unsworn evidence. That is what the House has agreed to at the second reading of the bill . . .The principles of the bill agreed to at the second stage leave no scope for such modifications. There is either provision for unsworn evidence or not.

The Chairman was wrong on both counts. He was wrong because Standing Order 271 states:

After the preamble has been agreed to, if any amendment shall have been made in the bill, not coming within the original title, such title shall be amended, and a Question put "That the title as amended be the title of the Bill," and the amendment thereof shall be specially reported to the House.

In other words, Standing Order 271 states that if the bill takes a different form, the title can be amended. The Chairman of Committees was also wrong on fact.

Mr Turner: It is Standing Order 261.

Mr WHELAN: I am reading Standing Order 271. Standing Order 261 is another matter, which I will deal with later. The Chairman of Committees was wrong. It is all right for the Government to amend section 405 of the Crimes Act, which is what has been done. The Government wants to amend section 405, but it will not let members of the Opposition do that. How ridiculous that is! I want the Chairman of Committees to note that the Government wishes to amend section 405 of the Crimes Act, but how will it do that? The Government wishes to amend it as follows, "Every accused person on his trial, whether defended by counsel or not" - then the Government wishes to leave out several words - "after the prosecutor has addressed the jury or has declined to address the jury, may, personally or by his counsel, address the jury".

That is the Government's proposed amendment to section 405 of the Crimes Act. The amendment ends with the following words, "may, personally or by his counsel, address the jury". That means that an accused person may make a statement to the jury. The Government does not wish to abolish that privilege. I attempted to modify this amendment to qualify the extent to which and the circumstances upon which an accused person can address the jury. That is a very important principle. If the Opposition is rolled on this motion, the Parliament will have to think seriously about how amendments will be made. When the Labor Party is in office in 1995 members opposite will be very worried as they will be subject to the same ridiculous rulings that Opposition members are now. Members will never be able to submit amendments. Once a decision is made by the Chairman, that decision will be final.

Historically, the Westminster system and Erskine May provide that the independent arbitrator in the Parliament is the Speaker. When I asked for this matter to be put to the independent umpire, the Speaker, my request was refused. What else could I do other than move a vote of no confidence in the Chairman of Committees? This will happen every time that we put up valid amendments. I do not care what the Government says; the fact is that the Government has had an opportunity to amend section 405 of the Crimes Act, but the Chairman of Committees said that the amendments I put up were invalid. The Government seeks on page 2 of the Crimes Legislation (Unsworn Evidence) Amendment Bill to amend section 405 of the Crimes Act. The Opposition is also entitled to amend the Crimes Act. For that reason alone my amendments should have been adequate in the circumstances.

The Chairman of Committees said that my amendments were not valid. That is another important reason why I have moved a vote of no confidence in him. In my view he erred in respect of the matters to which I have referred. When I moved, "That you do now leave the chair, report progress, and seek leave to sit again tomorrow", the Chairman said:

I am of the opinion that the motion by the honourable member for Ashfield is one of delay and is likely to cause obstruction. Therefore I do not accept the motion.

It is not up to the Chairman of Committees to determine what motivated me to move my motion. I moved my motion because that is what is provided in the standing orders. The standing orders provide that any member can do that, but the Chairman of Committees unilaterally decided, in his high-handed manner, that my motion was one of delay and was likely to cause obstruction, and did not accept the motion before the Chamber. Honourable members would be aware of what happened then. The Opposition spent most of that night sitting on one side
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of the Chamber. We divided on that motion until 1.18 a.m. The House then decided to recommit the matter for reconsideration in accordance with Standing Order 277.

My reasons are that I do not believe the 1928 precedent to be adequate in the circumstances - it is older than Methuselah; I do not believe the Chairman of Committees has acted in accordance with Standing Order 162; I do not believe that anything I have done was for the purposes of delay or to cause obstruction; and I do not believe that the amendments I have moved are inadmissible and out of order - they were clearly in order. If it is all right for the Government to amend section 405 in relation to the address of jury members by the accused, it should be permissible for the Opposition to do so also.

Probably the most important matter in relation to my amendment is that the Government did not think of proper ways to solve the problem constructively. Only after the Opposition, having consulted with and subsequently obtained the concurrence of the Independents, came up with positive methods by which the law could be reformed did the Government decide that it had better get out from under. On this matter the view of the Australian Labor Party is very clear. Mr Speaker, if this motion were to be defeated, my only option, regrettably, would be to move dissent from your ruling. I would have to take some other advisings about what should be done in that respect because it would be a matter of serious concern. If the motion were defeated, I would seek the concurrence of the Leader of the House and would hope that the matter might be dealt with then and there.

Mr West: In that unlikely occurrence, I would be happy to discuss the matter.

Mr WHELAN: We have such fun in Parliament House. Recently I was flicking through some old precedents. I have in the Chamber with me the "Parliament of New South Wales Legislative Assembly Fact Sheet", a document from 1991, not 1928. In relation to amendments, that publication states that an amendment which alters the main question by substituting a proposition with the opposite conclusion is admissible.

The document was written as a compendium of advice. I admit that its weight is not equal to that of the standing orders or the law of the Parliament, but it was written as a guide for members. I raise the point because it appears that the fact sheet may need to be corrected. That 1991 document, prepared by the Parliament, states that a proposition with the opposite conclusion can be moved as an amendment. Standing orders provide that members can move amendments. I will not accept, and neither will the Opposition in general, that Chairmen of Committees should be the persons who dictate what happens in this Parliament. There is one, neutral referee who determines what happens. If there is a dispute, it is not for the Chairman of Committees to take a unilateral, high-handed action. It is the Speaker of the House who makes a determination. That is why I have reservations about the next step should the Opposition go down on this issue.

My reservation is that I shall have to move dissent from the Speaker's ruling. A Speaker's ruling is like the decision of a neutral umpire. The Opposition accepts decisions, but it is my hope that as a result of some of the arguments put to you, Mr Speaker, you might be persuaded to allow the debate to continue and to grant the relevancy of the Opposition amendments. In view of what to me is an obvious breach of the standing orders of the House, I ask that the House uphold the vote of no confidence in the current Chairman of Committees.

Mr WEST (Orange - Minister for Energy, and Minister for Local Government and Co-operatives) [12.45 a.m.]: I am not a lawyer but I would have to say that if the honourable member for Ashfield were representing me, I would hate to be facing the gas chamber because I would be there right now. The honourable member for Ashfield fails to tell the whole story. He has just been quoting from a fact sheet. He quoted a statement that the substitution of a proposition with the opposite conclusion was admissible. The honourable member should have gone back a little further. This situation is a little similar to the amendment to a motion that the House has just considered - that when an amendment removes all the words after "That", all the words after "That" become admissible, even though it is the opposite. The honourable member for Ashfield has failed to say why it is admissible. The honourable member should relate the full quotation.

The honourable member for Ashfield said that the Committee was amending section 405. That is correct. The honourable member failed to say that the Government amendment was to omit words, not to amend words. The House had made a decision by the second reading stage that dock statements would be abolished. Under no circumstances can it be permissible for a member to then move an amendment that is a negative of a decision that has already been made. That is the real point. The honourable member for Ashfield pointed out that the Chairman of Committees had to go back to 1928 for a precedent. The reality is that since 1928 no member - until the honourable member for Ashfield - has had the gall to try to overturn something that has been accepted for 150 years of the Westminster system in this Parliament. The same rules are used in local government and at meetings everywhere.

A parliament cannot make one decision and then come up with the total opposite. If the honourable member for Ashfield did not want to vote for the bill, he should have had the courage to vote against it at the second reading stage. That is what he failed to do. The honourable member for Ashfield spoke of his reliance on Standing Order 162. Again, the honourable member's memory is appalling. He is quoted in Hansard as saying, "I raise an objection and my objection is in writing". Standing Order 162 requires that if an objection is taken to a ruling or a decision of the Chairman of Committees, objection must be taken at once and must be made in writing. The honourable member for Ashfield failed to give that notice; he shoved it back in his pocket. Neither the Chairman of Committees nor the Clerks of the House received his notice.

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Mr Whelan: I did not write it out. Do you know who wrote it out? It was the Clerk.

Mr WEST: That still does not make it right for the honourable member to shove it back in his pocket. He has to complete the procedure and give the notice to the Chairman of Committees. It is like writing a letter, putting it in an envelope but failing to put a stamp on the envelope - it will not go anywhere. The Chairman of Committees was fully within his rights. In all of his reading of the standing orders, the honourable member for Ashfield failed to go a little further on. It seems that he can count up to No. 271 but no further. It is clear that he read Standing Order 271 because he made reference to the title. Standing Order 271 states that amendments can be moved to the title. A member may not, however, move an amendment that is outside the leave of the title. The honourable member for Ashfield has failed to understand the rationale behind the standing orders. The Chairman of Committees has counted a little further. He moved on to Standing Order 330, which states:

In Committee of the Whole on any Bill or Resolution, no Member shall make any motion for the Chairman, to leave the Chair which, by the ruling of the Chairman without debate, shall be held to be of an obstructive character or not consistent with the regular and orderly conduct of the business of the Committee.

It became the prerogative of the Chairman of Committees to make that decision. The Chairman of Committees had that capacity and he decided, within his prerogative, to take that decision. It was clear that every move the honourable member for Ashfield was taking was obstructive. If this motion of no confidence in the Chairman of Committees is carried, the rules of this Parliament will be turned back. The honourable member is saying we should forget about the standing orders. If the majority of the members of this Parliament control this House to the point where there is no order, there will be total anarchy. Many countries around the world have moved away from such a position, but the Australian Labor Party is trying to take us back to that. The honourable member for Ashfield has no other alternative but to withdraw his motion if he does not want a lot more egg on his face. He has failed on every account to present details to this House that substantiate his case.

The amendments the honourable member for Ashfield attempted to move in Committee were out of order. They were outside the leave of the bill. The honourable member had no alternative. He was not prepared to accept the Chairman's ruling. That is why he spat the dummy and started this procedure. The Chairman of Committees was within his rights. I ask all honourable members to think very carefully about this motion because if they vote for it they will rewrite history - not only in New South Wales but in every meeting that is conducted. Control will be lost merely because the honourable member for Ashfield wants to score some cheap points. He has failed and he has lost the plot.

Mr WHELAN (Ashfield) [12.51 a.m.], in reply: We did not lose the plot. If anyone lost the plot it was the Government. The Opposition's amendments were positive and constructive amendments to the Crimes Legislation (Unsworn Evidence) Bill. The Government's action was a political con trick. The opportunity to reform dock statements has been lost once and for all. The House never had the opportunity of having all the Opposition's amendments considered by the Parliament because the Chairman of Committees ruled them all out of order.

I should have prepared a series of pages for all 15 amendments and moved them one by one - and had them defeated bit by bit - rather than table the whole lot. I tabled them so that everyone would understand them. This Chairman of Committees ruled the three pages of my amendments out of order before they came up for consideration by the Parliament.

Mr W. T. J. Murray: That is his job.

Mr WHELAN: It is his job under Standing Order 162 to report to the Speaker, the independent umpire, and the House. I have been here for a long time. To accuse me of not complying with the standing orders at this stage, and of not putting a document in writing to the appropriate place is as ridiculous as it sounds. The Chairman of Committees at that time could have ruled me out of order and said that I did not put the amendments in writing and did not submit them, but he did not say that.

Mr W. T. J. Murray: You admit you were wrong?

Mr WHELAN: No I do not. All I say is that I strictly complied with the standing orders.

Mr W. T. J. Murray: Except you put them in your pocket.

Mr WHELAN: No I did not. I complied strictly with the standing orders because they are very specific about amendments being in writing and they were presented by me. The honourable member should think about what I have said. The Minister made up a story about my not complying with the standing orders. I repeat that if I had not complied with them, why did the Chairman of Committees not say that I was out of order? It is an absolute deliberate make-up and the Minister cannot expect the House to believe that. Standing Order 162 is specific and the standing orders I have relied on are specific. Section 405 was amended by the Government and the Opposition should have had an equal opportunity to amend it. My amendments were in order. The Government is relying on a 1928 precedent that has no validity in 1994.

Mr West: Why?

Mr WHELAN: Because according to what the Minister has said, there is a single departure. Standing Order 175B provides a trigger, an automatic guillotine. That is what the Chairman of Committees said at that time. He said that that was the end of it. That was the decision. This case is different and is founded on three erroneous decisions made by the Chairman of Committees at that time. I am annoyed that the Government is making up this story about non-compliance. That does it no credit.

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Question - That the motion be agreed to - put.

The House divided.

Ms Allan Mr Markham
Mr Amery Mr Martin
Mr Anderson Mr Mills
Mr A. S. Aquilina Mr Moss
Mr J. J. Aquilina Mr J. H. Murray
Mr Bowman Mr Nagle
Mr Crittenden Mr Neilly
Mr Doyle Mr Newman
Mr Face Ms Nori
Mr Gaudry Mr E. T. Page
Mr Gibson Mr Price
Mrs Grusovin Mr Rogan
Mr Harrison Mr Rumble
Mr Hunter Mr Scully
Mr Iemma Mr Shedden
Mr Irwin Mr Sullivan
Mr Knight Mr Thompson
Mr Knowles Mr Whelan
Mr Langton Mr Yeadon
Mrs Lo Po' Tellers,
Mr McBride Mr Beckroge
Mr McManus Mr Davoren

Mr Armstrong Ms Moore
Mr Baird Mr Morris
Mr Beck Mr W. T. J. Murray
Mr Blackmore Mr O'Doherty
Mr Causley Mr D. L. Page
Mr Chappell Mr Peacocke
Mrs Chikarovski Mr Phillips
Mr Cochran Mr Photios
Mrs Cohen Mr Richardson
Mr Collins Mr Rixon
Mr Cruickshank Mr Schipp
Mr Debnam Mr Schultz
Mr Downy Mrs Skinner
Mr Fraser Mr Small
Mr Glachan Mr Smith
Mr Griffiths Mr Souris
Mr Hartcher Mr Tink
Mr Hatton Mr Turner
Mr Hazzard Mr West
Mr Humpherson Mr Windsor
Dr Kernohan Mr Zammit
Mr Kinross
Mr Longley Tellers,
Dr Macdonald Mr Jeffery
Mr Merton Mr Kerr

Mr Carr Mr Fahey
Mr Clough Ms Machin
Dr Refshauge Mr Petch

Question so resolved in the negative.

Motion negatived.