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Australia

Update: April 8, 2020

During a special sitting on April 8, 2020, the Australian Senate resolved to establish a Select Committee to inquire into Australian government’s response to the COVID-19 pandemic. Read more

I. Public Statements and Media Reports

On March 16, 2020, the presiding officers of the two houses of the Australian Parliament (the Speaker of the House of Representatives and the President of the Senate) issued a joint statement regarding “temporary and precautionary changes to Parliament House operations” in response to COVID-19.[1] The statement announced various measures to restrict public access to Parliament House and ensure social distancing. It also advised parliamentary committees to “give serious consideration to whether their business is essential” and to transition to using video or teleconference facilities for hearings.[2] Members and senators were asked to only bring essential staff to Canberra and Parliament House.

A news report further stated “it is expected many MPs and senators, particularly those who travel more than two hours on a plane and those battling poor health, will be ‘paired’ if they choose not to attend. Pairing arrangements allow MPs from both major parties to miss votes without affecting the outcome.”[3]

On March 18, 2020, the Australian Associated Press reported that the major parties represented in the Parliament “have worked together to decide what parliament should look like during its final scheduled sitting before the May budget.”[4] According to the leader of the main opposition party, “it was likely some 60 lower house members would be given leave to avoid travelling to Canberra, meaning decisions would be made by about 90 of the 151 MPs.”[5] The arrangement, which was being finalized by the Attorney-General and the manager of opposition business, “would give the lower house enough numbers to deal with the procedural motions needed to speed through the stimulus legislation” developed in response to the pandemic.[6] The article also stated that the Senate has a “standing deal” to grant leave to five senators from each side, “but it is up to the whips and business managers of each major party to decide whether to expand this.”[7]

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II. Extraordinary Sitting of Parliament

On March 23, 2020, members and senators returned to the federal Parliament for an “extraordinary one-day sitting” in order to pass legislation authorizing government spending in response to the coronavirus pandemic, including “urgent coronavirus economic stimulus bills.”[9] One news article explained that

[t]here are 227 federal politicians that sit in the Parliament, across two chambers.

Of those, 129 politicians must be present in Parliament House for the House of Representative and Senate to function.

That means almost half of the Parliament has been excused to limit the number of people needing to travel to the nation’s capital.[10]

In addition, the full 129 members and senators would not sit in the chambers all day:

To deal with any business, the Parliament needs a quorum, which is 31 MPs in the Lower House and 19 senators in the Upper House.

But if there are any votes on legislation, or attempts to change the day’s schedule, all the politicians present at Parliament House will rush into the chambers.

If a division is called for a vote to change the proceedings, a minimum of 76 people will be required in the House of Representatives and 39 in the Senate in some circumstances.[11]

The government stated that those in the chambers would adhere to social distancing guidelines. In addition, as all the major parties had agreed on the economic package, there may not be any divisions called, meaning that the legislation could pass “on the voices” of those present. “This can all happen because of ‘pairing’ arrangements that allow two MPs or senators from opposite sides to agree they will be absent and their votes can cancel each other out if required.”[12]

Any politician self-isolating was given a leave pass, as well as any who have a compromised immune system and anyone traveling from a remote community or facing a long journey to get to Canberra. Furthermore, members were “only bringing essential staff.”[13]

The relevant bills were passed by the Parliament without objection on the evening of March 23, 2020, and the House agreed to a new sitting calendar, with members next due to return on August 11, 2020. Included in the measures was the approval of an “advance” of AU$40 billion (about US$23.62 billion) “for the finance minister to spend on unforeseen events from July 1 without needing parliamentary approval.”[14]

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III. Legislation and Standing Orders

A. Access to Parliamentary Precincts

The control and management of the parliamentary precincts are governed by the Parliamentary Precincts Act 1988 (Cth). This legislation provides that

(1) The precincts are under the control and management of the Presiding Officers.

(2) The Presiding Officers may, subject to any order of either House, take any action they consider necessary for the control and management of the precincts.

(3) In respect of the Ministerial Wing in Parliament House, the powers and functions given to the Presiding Officers by subsections (1) and (2) are subject to any limitations and conditions agreed between the Presiding Officers and the Minister.[15]

B. Power to Make Rules for Conduct of Business

The Australian Constitution provides that

Each House of the Parliament may make rules and orders with respect to:

 (i) the mode in which its powers, privileges, and immunities may be exercised and upheld;

(ii) the order and conduct of its business and proceedings either separately or jointly with the other House.[16]

The House of Representatives and Senate each have their own Standing Orders as well as procedural orders and resolutions with respect to the exercise of their powers and conduct of business.[17]

C. Quorums and Leaves of Absence

The Constitution establishes the quorum for the House and the Senate as requiring the presence of at least one-third of the whole number of members or senators. However, the Parliament has the power to change the requirements.[18] The Senate (Quorum) Act 1991 (Cth) altered the quorum of the Senate to one-quarter of the senators (19 of 76 senators).[19]

In both the House and Senate, the place of a member or senator is deemed to become vacant under the Constitution if the member or senator fails to attend, without permission, the relevant chamber for two consecutive months of any session of the Parliament.[20] According to House of Representatives Practice, “[a] motion to grant leave of absence does not require notice, states the cause and period of leave (for individually identified Members), and has priority over all other business. Leave is usually granted for reasons such as parliamentary or public business overseas, ill health or maternity/paternity. A further motion may be moved to extend the period of leave.”[21] Long periods of leave have been granted during both world wars. More recently, members on leave have participated in committee proceedings by teleconference and been involved in drafting committee reports.[22] Similarly, the Senate’s Standing Orders provide for a leave of absence to be granted to a senator on motion after notice “stating the cause and period of the absence.”[23]

D.  “Pairing” Arrangements

The “pairing” arrangements referred to above are not reflected in the Standing Orders of either the House or the Senate. Instead, they exist as a matter of convention.[24] House of Representatives Practice explains that

[t]he pairs system, a practice of some antiquity, is an unofficial arrangement between Members, organised by party whips, which can be used to enable a Member on one side of the House to be absent for any votes when a Member from the other side is to be absent at the same time or when, by agreement, a Member abstains from voting. By this arrangement a potential vote on each side of a question is lost and the relative voting strengths of the parties are maintained. The system also allows the voting intentions of absent Members to be recorded.

With the development of the modern party system pairing arrangements were facilitated and Members have been paired not only on particular questions or for one sitting of the House, but sometimes for extended periods. In some periods the Prime Minister and the Leader of the Opposition have been automatically paired unless one indicated that he or she wished to vote on a particular issue.

. . .

Although there is no rule or order of the House requiring a Member to observe a pair, there is a considerable moral and political obligation on his or her part to adhere to such an agreement. The consistent attitude of the Chair on this question was summed up by Speaker Watt when, in reply to a question as to whether it would be a breach of honour if a Member did not observe a pair, he observed that the Chair knew nothing of pairs, the question of honour being a matter for the Members and not the Chair to decide.[25]

Similarly, Odgers’ Australian Senate Practice explains pairing as follows:

By arrangement between parties in the Senate, a system of pairing operates, whereby a senator who is absent and who is expected to vote on one side in a particular question is “paired” with a senator who is expected to vote on the other side and who is either also absent or who deliberately does not vote in order to cancel out the effect of the other senator's absence. Pairs are also arranged for vacant places in the Senate. This system ensures that the result of votes is not determined fortuitously by the absence of particular senators. Pairs are usually not arranged, however, for secret ballots, for the reason that voting is meant to be secret and it should not be known how individual senators vote.

Pairing arrangements are determined by the party whips, and may last for days, weeks or months, or may be varied from vote to vote. Pairs are entirely an informal arrangement between the parties and not part of the procedures of the Senate. The chair therefore does not consider any matters relating to pairs. In earlier years rulings were made to the effect that pairs could not be referred to in the course of proceedings. These rulings are now not followed, and it is common for senators to make statements concerning pairing arrangements. This practice has been upheld by a President’s ruling. Pairs are not referred to in the Journals record of votes, but lists of pairs are included in the voting lists shown in Hansard.[26]

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Prepared by Kelly Buchanan
Foreign Law Specialist
March 2020


[1] Press Release, Tony Smith & Scott Ryan, COVID-19: Statement by the Presiding Officers Regarding Temporary and Precautionary Changes to Parliament House Operations (Mar. 16, 2020), https://perma.cc/Y9Q8-XSBY.

[2] Id.

[3] Rob Harris, Scaled-Back Parliament to Meet for Stimulus Legislation as Building Access Restricted, Sydney Morning Herald (Mar. 16, 2020), https://perma.cc/U3MG-K7Y9.

[4] Katina Curtis, Parties Considering Scaled-Back Parliament, AAP (Mar. 18, 2020), https://perma.cc/2Z2S-H4DH.

[5] Id. See also Coronavirus: Scott Morrison Slims Down Federal Parliament to Slow Virus Spread, news.com.au (Mar. 17, 2020), https://perma.cc/HC2U-NEZW.

[6] Curtis, supra note 4.

[7] Id.

[8] Brett Worthington, Coronavirus Pandemic Prompts Federal Government to Delay Budget until October, ABC News (Mar. 21, 2020), https://perma.cc/G395-WKLK.

[9] Anna Henderson, Why Are Politicians Returning to Canberra Amid a Coronavirus Crackdown?, ABC News (Mar. 23, 2020), https://perma.cc/UL7F-U6UL.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Melissa Clarke, Coronavirus Stimulus Package Worth $84 Billion Passed without Objection by Parliament, ABC News (Mar. 23, 2020), https://perma.cc/G4T9-C52Y.

[15] Parliamentary Precincts Act 1988 (Cth) s 6, https://perma.cc/Z9TU-LBT9. See also “Parliamentary Precincts and the Exercise of Authority,”in House of Representatives Practice (7th ed. June 2018), https://perma.cc/H4KR-9GJ2.

[16] Commonwealth of Australia Constitution Act s 50.

[17] See House of Representatives Standing Orders, Parliament of Australia, https://perma.cc/TH7D-E95Q; Standing Orders and Other Orders of the Senate, Parliament of Australia, https://perma.cc/LKT9-HVLB.

[18] Commonwealth of Australia Constitution Act ss 22 & 39, https://perma.cc/VEY4-BCDZ.

[19] Senate (Quorum) Act 1991 (Cth) s 3, https://perma.cc/HX9A-HDMR. See also “Quorum,” in Odgers’ Australian Senate Practice (14th ed., updated to June 30, 2019), https://perma.cc/T3GR-RHFZ.

[20] Id. ss 20 & 38.

[21] “Attendance,” in House of Representatives Practice (7th ed. June 2018), https://perma.cc/6GPC-U9ZV.

[22] Id.

[23] Standing Orders of the Senate ch 7 standing order 47, https://perma.cc/GAV9-NDPT. See also “Leave of Absence,” in Odgers’ Australian Senate Practice (14th ed., updated to June 30, 2019), https://perma.cc/P9J7-U5RX.

[24] Campbell Rhodes, Pairing Up: What is Pairing in Parliament?, Museum of Australian Democracy Blog (Aug. 25, 2016), https://perma.cc/CWR7-MZKU.

[25] “Divisions,” in House of Representatives Practice (7th ed. June 2018), https://perma.cc/R2MB-UJWC.

[26] “Pairs,” in Odgers’ Australian Senate Practice (14th ed., updated to June 30, 2019), https://perma.cc/TAW9-7YP3.

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Last Updated: 12/30/2020