Government amendments

9.1 The Government may decide to amend a bill that is currently before the Parliament. This may occur for a number of reasons but, in general, government amendments will not be considered unless they are critical in nature, i.e. to correct a serious defect in a bill, to address issues arising out of consultations with independent or non‑government members or senators or responding to recommendations to parliamentary inquiries, or to correct issues identified by parliamentary scrutiny committees (such as the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights).

9.2 Government amendments are to be progressed only if essential—for example, to address circumstances that have changed since the bill was introduced. As an alternative, if the proposed amendments are not essential they can be included in a bid for a bill on the next legislation program.

9.3 In cases where a large number of government amendments are being considered, there is the option of withdrawing the bill and reintroducing it in a consolidated form.

9.4 In considering the need for government amendments, departments need to be aware, and brief their ministers as appropriate, that government amendments are likely to delay passage of a bill.

9.5 The need for government amendments to correct errors or defects in bills will be minimised by departments undertaking a thorough check of each bill prior to introduction. Accordingly, a Senior Executive Service officer with appropriate knowledge of the bill would be expected to clear the bill prior to it being submitted to the minister for approval and introduced into the Parliament.

9.6 Government amendments are moved during the consideration in detail stage in the House of Representatives or the committee of the whole stage in the Senate. If the amendments are made by the second house, the bill will need to be returned to the first house for agreement. If the amendments are made by the first house, the bill and explanatory memorandum, and possibly the second reading speech, will need to be updated to take account of the amendments and reprinted before transmission to the second house (see paragraphs 9.25 to 9.29).

9.7 The Senate Standing Committee for the Scrutiny of Bills applies the same standards to amendments moved to a bill as it does to the original text of the bill (see paragraphs 7.27 to 7.29). As such, any amendments are subject to the same legislative scrutiny and ministers may be asked to provide explanations and justifications for any amendments introduced. All new provisions are to be fully explained in the supplementary explanatory memorandum.

Formal amendments

9.8 During passage through either house, amendments of a formal nature (e.g. correcting a cross-reference) may be made and clerical or typographical errors may be corrected in any part of a bill. In the House of Representatives, such amendments or corrections are made by the Clerk of the House acting with the authority of the Deputy Speaker. In the Senate, the Chairman of Committees is empowered to make the amendments. The advice of the First Parliamentary Counsel is sought about these amendments. 

9.9 Departmental instructing officers must contact OPC (which sends a note to the relevant Clerk) when they become aware of the need for such amendments during the passage of a bill. 

PBC consideration of government amendments

9.10 Departments must advise the Legislation Section (desirably through the LLO), OPC and the relevant PLO of proposed government amendments as soon as the need for them becomes apparent. Ministers should maintain early and close communication on likely amendments with the Prime Minister’s Office and the offices of either the Leader of the House or the Manager of Government Business in the Senate, depending on the chamber in which the amendments would be moved.

9.11 Where proposed government amendments are, in the opinion of the First Parliamentary Counsel, likely to require significant drafting resources, a request for a variation to the legislation program must be prepared for consideration by the PBC (see paragraphs 2.23 and 2.34).

Drafting government amendments

9.12 Government amendments are drafted by OPC. Departments need to discuss proposed amendments with OPC and issue drafting instructions in the usual manner. See also OPC’s Instructor Guidance Note on amending a bill while it is in Parliament.

Requests for amendments

9.13 Where the Senate may not amend a bill (as limited by section 53 of the Constitution), it may request the House of Representatives to make the amendments. The request is transmitted to the House, which then decides whether or not to make the requested amendments. The Senate does not read a bill for a third time until any requested amendments are resolved.

9.14 Following a resolution on 26 June 2000 (Senate Procedural Order of Continuing Effect No. 1), the Senate requires that all amendments circulated in the Senate chamber as requests be accompanied by a statement of reasons for their being circulated as requests, together with a statement by the Clerk of the Senate on whether amendments would be regarded as requests under the precedents of the Senate.

9.15 Where the drafter is of the opinion that government amendments in the Senate need to be circulated as requests, they will provide written advice of that opinion to the sponsoring minister together with a separate explanation for that opinion. If the amendments are circulated as requests, the explanation will serve as the statement of reasons for the purposes of the Senate requirement. When the Senate Table Office seeks authorisation from the minister to circulate the amendments, the minister is also requested to indicate which, if any, amendments are to be circulated as requests.

9.16 The drafter can give further advice on the procedural and other implications of Senate requests.

Supplementary explanatory memorandum

9.17 A supplementary explanatory memorandum must be prepared for all government amendments regardless of whether the amendments are being moved in the first or the second house (although see paragraph 4 for exceptional cases). The supplementary explanatory memorandum follows the same form as an explanatory memorandum. A Senior Executive Service officer with appropriate knowledge of the bill would be expected to clear the supplementary explanatory memorandum before it is submitted to the minister for approval and the amendments moved in the Parliament (see paragraph 7.25). If the amendments limit human rights, it is good practice for a supplementary statement of compatibility with human rights to be included (see paragraphs 7.17 to 7.21).

9.18 As for an explanatory memorandum, the financial impacts of the amendments or requests for amendments must be included in the financial impact statement in the supplementary explanatory memorandum. Even a negligible financial impact may require amendments to be moved as Senate requests for amendments. A financial impact statement describing a requested amendment as having a negligible financial impact needs to note that the financial impact may nevertheless have constitutional significance. Advice about the constitutional significance of requested amendments can be sought from the drafter. 

9.19 A single-page supplementary explanatory memorandum, without a separate cover sheet, may be used where:

1. the notes on clauses are brief and less than one page;
2. the amendments are so simple that an outline is unnecessary; and
3. the amendments have no separate financial impact (see paragraph 9.18 in relation to requests for amendments).

9.20 Where both amendments and requests for amendments are proposed for a bill in the Senate, a single supplementary explanatory memorandum can be prepared. To meet the requirements of the Acts Interpretation Act 1901, the supplementary explanatory memorandum must be presented by the minister at the time the amendments are moved. Supplementary explanatory memoranda will need to be printed by your print provider. See paragraphs 9.27 and 9.28 for information on the preparation of a revised explanatory memorandum for introduction in the second house.

Distributing and printing a supplementary explanatory memorandum

9.21 The department is responsible for arranging the printing of a supplementary explanatory memorandum and distributing copies to the Table Offices, the PLOs and the minister’s office prior to the accompanying government amendments being approved for circulation (see paragraphs 7.39 to 7.41). See also paragraphs 12.36 and 13.36 regarding speech notes for the minister.

Approval of government amendments

9.22 Government amendments require all the same approvals as a bill that is being introduced, i.e.:

1. policy approval for all proposals contained in the amendments;
2. approval of the responsible minister for text of the amendments and the supplementary explanatory memorandum;
3. approval or agreement of other ministers, or departments where appropriate;
4. party clearance; and
5. approval from the Legislation Minister for the amendments to be moved (see Chapter 8 for further information on the legislation approval process, including electronic lodgement of documents).

9.23 Where possible, policy approval should be sought at least 48 hours ahead of a likely vote on the amendment.

9.24 There will be situations where government amendments are negotiated and agreed during debate on a bill, or prepared in anticipation of their likely need during debate to ensure passage, and there will not be time for the formal policy approvals to be sought. In such situations, the relevant minister must clear any amendments with the Prime Minister, other ministers, and the relevant party committee, as appropriate and as time permits. Also in such situations, a supplementary explanatory memorandum is to be prepared if time permits.

Reprinting a bill to take account of amendments to the bill by the first house

9.25 When either government or independent or non‑government amendments are made to a bill in the first house, the amendments are incorporated into the bill by the relevant Table Office prior to the transmission of the bill to the second house. This print of the bill is called the ‘third reading print’. The Table Office prepares the third reading print according to the instructions set out in the amendments and does not renumber the clauses in the bill to take account of inserted or omitted clauses. Newly inserted provisions will be cited using a combination of numerical and alphabetical references, e.g. a new clause after 3 will be 3A and the existing clause 4 will remain as 4. Where provisions are omitted by amendment, the resulting gaps in numbering will remain. This avoids the need to rectify incorrect references in other bills which have already been passed and that refer to provisions in the bill as introduced. Reprinting may take a minimum of 24 hours and can take much longer if there are extensive or complex amendments. See also paragraphs 12.43, 12.51, 13.44 and 13.52.

9.26 Departments can order additional copies of the third reading print through the Legislation Officer in the Table Office of the house in which the bill is first introduced, provided the order is placed within a short period of the passage of the bill. The cost of additional copies is charged to the department.

Revising an explanatory memorandum to take account of amendments to the bill by the first house

9.27 If government, independent or non‑government amendments to a bill are made in the first house, departments must revise the explanatory memorandum to reflect the amendments. It is also good practice to revise the statement of compatibility with human rights. Departments must ensure that in the revised explanatory memorandum, the notes on clauses match the clauses of the third reading print of the bill (which can be obtained from the appropriate Table Office), and must arrange for the revised explanatory memorandum, cleared through the minister’s office, to be printed and for copies to be lodged before the bill is introduced in the second house. Departments will need to commence work on the revised explanatory memorandum, including any revised statement of compatibility, as soon as amendments are made by the first house. Departments are to contact the Table Office of the second house to confirm the timing for the introduction of the bill in the second house. See also paragraphs 12.44 to 12.47, 12.51, 13.45 to 13.48 and 13.52.

9.28 It is necessary to prepare a supplementary explanatory memorandum if further government amendments are to be moved in the second house (see also paragraphs 12.22, 12.35, 13.17 and 13.35).

Revising a second reading speech where a bill has been amended by the first house

9.29 Depending on the nature of the amendments made by the first house, it may be necessary to revise the second reading speech for introduction of the bill in the second house. Departments must ensure that, where a second reading speech is revised, it is cleared through the minister’s office and copies are lodged at the same time as copies of the revised explanatory memorandum.

Amendments to a bill by the second house

9.30 Where a bill is amended in the second house, the bill is sent back to the first house with a schedule of agreed amendments (and/or, in some cases, a schedule of requested amendments—see paragraphs 12.53 and 13.49). These schedules are prepared by the relevant Table Office. The bill is not reprinted, so there is no requirement for further revisions of the explanatory memorandum or the second reading speech in such cases.