Chapter 21 - Relations
with the House of Representatives
Simultaneous Dissolutions of the Houses
Constitutional
provisions and their application
When the Constitution of the Commonwealth was in preparation, one of
the major issues in contention was a provision for resolving deadlocks between
the Houses of Parliament over legislation. Few constitutions extant at the time
contained any such mechanism: those which did mainly provided for conferences
between the Houses, reflecting practice as it had developed in the Congress of
the United
States.
Only with enactment of the Parliament Act 1911 did the United Kingdom establish a formal
framework for resolving a deadlock between the House of Commons and the House
of Lords, reflecting the non-elected character of the latter house. Canada’s national
parliament, now the only bicameral legislature in that country, still does not
have a comparable procedure. Such procedures as exist in Australian State constitutions
post-date the Commonwealth Constitution.
The procedure eventually adopted, and embodied in section 57 of
the Constitution, was thus a major innovation in constitutional and bicameral
practice. Part of the innovation was the possibility of dissolution of and
general election for both Houses of the Parliament.
The provisions in section 57 were intended to be more
than a mechanism for resolving deadlocks. They were to be a concession of
federalism to democracy. Provided that the whole process set out in section 57
is followed, the normal double majority for the passage of laws would be
dispensed with, only for the legislation causing the deadlock, and laws could
be passed in accordance with the wishes of the majority of the representatives
of the people as a whole, if that majority were not too narrow. In cases of
significant disagreement, democratic representation was to prevail over the
geographically distributed representation of the people provided by the Senate.
(But see Chapter 1 for the point that the House of Representatives is now
controlled by the executive government and may not in fact reflect in its
composition the votes of the majority of the electors.) It is sometimes said that the purpose of
section 57 is to enable the government or the House of Representatives to
prevail over the Senate. This interpretation, however, was explicitly rejected
by the High Court (see H. Evans, ‘Constitution, section 57’, Constitutional
Law and Policy Review, 1.2, August 1998).
Laws have been passed in this way only once, in 1974,
when there occurred the only double dissolution followed by a joint sitting of
the Houses.
Section 57 of
the Constitution as it relates to simultaneous dissolutions provides:
If the House of Representatives passes
any proposed law, and the Senate rejects or fails to pass it, or passes it with
amendments to which the House of Representatives will not agree, and if after
an interval of three months the House of Representatives, in the same or the
next session, again passes the proposed law with or without any amendments
which have been made, suggested, or agreed to by the Senate, and the Senate
rejects or fails to pass it, or passes it with amendments to which the House of
Representatives will not agree, the Governor-General may dissolve the Senate
and the House of Representatives simultaneously. But such dissolution shall not
take place within six months before the date of the expiry of the House of
Representatives by effluxion of time.
Since federation, section 57 has been activated on six occasions —
1914, 1951, 1974, 1975, 1983 and 1987 — to resolve deadlocks over legislation
between the Houses. On three occasions the government advising simultaneous
dissolutions has been returned to office; on only one of those occasions, 1974,
did the legislation leading to the dissolutions become law, and, in that
instance, after a joint sitting as provided for in paragraphs 2 and 3 of
section 57. In 1951, the Menzies Government, while not reintroducing the
banking legislation which was the subject of the simultaneous dissolutions,
nonetheless proceeded with other legislation of similar character. The Hawke
Government abandoned the single bill on which it had secured a simultaneous
dissolution in 1987 when a majority of the Senate in effect declared that it
would disallow regulations made under the legislation to bring it into
operation.
The simultaneous dissolutions of 1914 and 1983 saw the defeat of the
government advising the dissolutions. The legislation on which the dissolution
was based was, in all cases, dropped. In 1975, the simultaneous dissolutions
were based on 22 proposed laws of the ousted Whitlam Government. The caretaker
Fraser Government, however, secured majorities in both Houses so no further
action was taken.
As a consequence of the six simultaneous dissolutions, and the
judgments of the High Court in the three cases arising from the 1974
dissolutions, it is now possible to amplify the workings of section 57 of
the Constitution so far as simultaneous dissolutions of the two Houses are
concerned. The following observations can be advanced as influencing the
activation of section 57.
1. The
provisions of section 57 are mandatory, not directory in respect of the
validity of legislation.
Failure to comply with them therefore results in
invalidity of any enactment which does not conform to its stipulations.
However, even failure to observe the provisions of section 57 would not
invalidate dissolutions of the two Houses. (Victoria v Commonwealth 1975
7 ALR 1)
2. The interval of three months referred to in
paragraph 1 of section 57 is measured from the Senate’s rejection or
failure to pass a bill.
According to the High Court, it is “measured not from
the first passage of a proposed law by the House of Representatives, but from
the Senate’s rejection or failure to pass it. This interpretation follows both
from the language of section 57 and its purpose which is to provide time
for the reconciliation of the differences between the Houses; the time
therefore does not begin to run until the deadlock occurs”. (Victoria v
Commonwealth 1975
7 ALR 1)
3. A prorogation of Parliament does not have the
effect of negating earlier events which qualified bills as proposed laws in
respect of which a double dissolution could be granted.
Simultaneous
dissolutions may be granted in respect of bills which qualified under section
57 in an earlier session. (Western Australia v Commonwealth 1975
7 ALR 159)
4. Simultaneous
dissolutions have been granted on several occasions where the proposed
legislation has been deemed to have “failed to pass” the Senate.
In 1951, following
the second passage of the Commonwealth Bank Bill through the House, the Senate,
after second reading debate extending over several days, referred it to a
select committee. This was said by Prime Minister Menzies to constitute “failure to pass”, a phrase which
encompassed “delay in passing the bill” or “such a delaying intention as would
amount to an expression of unwillingness to pass it”. The Attorney-General, Senator J.A. Spicer, wrote that the
phrase, “failure to pass”, was intended to deal with procrastination. Professor K.H. Bailey, the
Solicitor-General, considered, inter alia, that “adoption of Parliamentary
procedures for the purpose of avoiding the formal registering of the Senate’s
clear disagreement with a bill may constitute a ‘failure to pass’ it within the
meaning of the section”. (See below, under Simultaneous dissolutions of 1951.)
The
Deputy Leader of the Opposition in the House of Representatives, Dr H.V. Evatt, had previously
been reported in the press as saying that referral of legislation to a select
committee, being clearly provided for in the standing orders of the Senate, was
not a failure to pass. (See below.)
In 1975, the High
Court held that the proposed law creating the Petroleum and
Minerals Authority had not, as claimed, “failed to pass” the Senate on 13 December 1973 and, as a result,
it was declared not to be a valid law of the Commonwealth. The second reading
was, in fact, negatived a first time in the Senate on 2 April 1974. In its judgment,
the High Court held that “The Senate has a duty to properly consider all Bills
and cannot be said to have failed to pass a Bill because it was not passed at the
first available opportunity; a reasonable time must be allowed”. In so
deciding, the majority observed that the opinions of individual members of
either House “are irrelevant to the question of whether the Senate’s action
amounted to a failure to pass”. (Victoria v Commonwealth 1975
7 ALR 1)
In 1983 nine
proposed laws dealing with sales tax were deemed to have “failed to pass” the
Senate after being first passed by the House of Representatives. These bills,
being legislation which under section 53 the Senate could not amend but
only suggest amendments, were in the possession of the House of Representatives
prior to being discharged from its notice paper, the Senate having decided to
press requests. As the government
was defeated in the election it is not possible to affirm conclusively that the
Senate had, in these circumstances, “failed to pass” the bills. It might be
argued that pressed requests refused by
the House are analogous to amendments to a bill by the Senate which are
unacceptable to the House of Representatives and thus bring the proposed
legislation within the ambit of section 57, but this argument was not
advanced.
5. It is
not necessary for the Houses to be dissolved without delay once the conditions
of section 57 have been met.
According to the High Court,
This interpretation follows both from the language of
s. 57, which provides for express time limits in relation to other parts
of the procedure laid down by the section but provides for none in respect to
the interval between the Senate’s second rejection of a proposed law and the
double dissolution...
Inter alia,
the Court observed that “‘undue delay’ would be impossible of determination by
the court”. (Western Australia v Commonwealth 1975 7 ALR 159) In the
case in question, Chief Justice Barwick (in minority) contended that “there is a temporal
limitation which requires that the second rejection by the Senate and the
double dissolution must be so related in time as to form part of the current
disagreements between the Houses”. However, the lapse of time in this instance,
a maximum of seven and a half months, was not sufficient to disqualify them as
grounds for simultaneous dissolutions. (ibid.)
6. Not only is it not necessary for simultaneous dissolutions
to follow a second rejection etc. by the Senate “without undue delay”, it is
not usual for account to be taken of the currency of legislation when it is
submitted as a basis for simultaneous dissolutions.
Thus, in 1983, Governor-General Stephen simply noted that
“in the case of each of these measures a considerable time has passed since
they were rejected or not passed a second time in the Senate”.
(Governor-General to Prime Minister, 4 February 1983, PP 129/1984, p. 43)
7. There is
no limit to the number of proposed laws on which simultaneous dissolutions of
the Houses may be based.
The first dissolutions based on more than one bill
occurred in 1974 (subsequently in 1975 and 1983). In 1974 the Attorney-General
(Senator
Lionel Murphy, QC) and the
Solicitor-General (M.H. Byers, QC) advised the Governor-General in a joint
opinion that:
The words of the paragraph [one of section 57], in
our view, clearly indicate that the power to dissolve is exercisable when more
than one proposed law has been dealt with in the required manner. ... Our view
does not require nor involve that the words “any proposed law” are read as
comprising a plural. We do not, of course, suggest that so to read them would
be to depart from recognised canons of construction. What we have said above
but treats the words of condition as operating successively and singularly upon
each such law. (PP 257/1975, p. 30)
This view, when challenged, was upheld by the High Court: “... a
joint sitting of both Houses of Parliament convened under s. 57 may
deliberate and vote upon any number of proposed laws in respect of which the
requirements of s. 57 have been fulfilled.” (Cormack v Cope 1974 131 CLR 432). As Justice Stephen observed: “One
instance of double rejection suffices but if there be more than one it merely
means that there is a multiplicity of grounds for a double dissolution, rather
than grounds for a multiplicity of double dissolutions” (ibid., 469).
8. The
political or policy significance of legislation is not material to a decision
to accede to a request that both Houses be simultaneously dissolved.
This issue arose
in 1914. The Opposition in
the Senate, which contested the Governor-General’s decision to grant
simultaneous dissolutions, protested that the proposed legislation, the
Government Preference Prohibition Bill, was not a vital measure and that the
deadlock had been contrived. That the deadlock was contrived in a narrow sense
cannot be disputed for this is clearly set out in a memorandum furnished to the
Governor-General by Prime Minister Joseph Cook which stated that when it became
“abundantly clear” that the Opposition had taken control of the Senate, “we
[the Government] decided that a further appeal to the people should be made by
means of a double dissolution, and accordingly set about forcing through the
two short measures for the purpose of fulfilling the terms of the
Constitution”. (PP 2/1914-17, p. 3)
An
address to the Governor-General carried by the Senate on motion of the
Opposition Labor Party stated that the Senate’s powers would be “reduced to a
nullity” were it possible to secure a dissolution on legislation which
contained “no vital principle” or gave “effect to no reform”. (17/6/1914, J.86-8)
It has
been customary subsequently for prime ministers, when proposing simultaneous
dissolutions, to stress the significance of the legislation involved. Thus, in
1951, Prime Minister Menzies referred to the Commonwealth Bank Bill and other
proposed laws about which there was dispute between the Senate and the House as
“major legislative measures”; in 1974, Prime Minister Whitlam informed the
Governor-General that “the Senate has twice rejected, failed to pass or
unacceptably amended several proposed laws which are integral parts of the
Government’s program of reform and development”, and, later, “the six proposed
laws are all of importance to the Government”; in 1983, Prime Minister Fraser
based advice about simultaneous dissolutions on 13 proposed laws “of importance
to the Government’s budgetary, education and welfare policies ...”; four years
later Prime Minister Hawke declared that the Australia Card Bill 1986 was “an
integral part of the Government’s tax reform package and is aimed at restoring
fairness to the Australian taxation and social welfare systems”. (See below for
relevant documents.)
Except
in 1983 (up to a point), governors-general have refrained from comment about
the significance of the legislation. In 1983, Governor-General Stephen wrote that on the
basis of precedents he should inter alia “pay regard to the importance of
the measures in question”. In the event, however, he disclaimed ability so to
do: “... I am not myself in any position, from their mere subject matter and
text, to form a view about the particular importance of any of them”. (PP
129/1984, pp 43-4)
9. Even where the conditions for simultaneous dissolutions as
prescribed in section 57 have been met, it is customary for advice to be
provided to the Governor-General on the “workability of Parliament”.
The issue of the
workability of the Parliament was addressed in the granting of the 1914
simultaneous dissolutions. Prime Minister Cook claimed that the Liberal Government was hindered in the
Senate but that the Opposition Labor Party would not be able to “carry on for a
single hour in the House of Representatives”. The caucus practices of Labor
made compromise impossible. Moreover, a dissolution of the House of
Representatives alone would not necessarily resolve the situation: “... however
large the Liberal majority in the House of Representatives might be as a result
of an election, it would have the same Senate as at present”.
(PP 2/1914-17, p. 4)
In
1951, Prime
Minister Menzies observed that in discussions about the 1914 simultaneous dissolution
“... some importance appears to have been attached to the unworkable condition
of the Parliament as a whole”. He went on to state that “the present position
in the Commonwealth Parliament is such that good government, secure
administration, and the reasonably speedy enactment of a legislative program
are being made extremely difficult, if not actually impossible”. (PP 6/1957, p.
12)
In
1974, Prime
Minister Whitlam wrote that “the Senate has delayed and obstructed the program on the
basis of which the Government was elected to office in December 1972”.
(PP 257/1975, p. 4) Nine years later, Prime Minister Fraser stated that he
regarded “a double dissolution as critical to the workings of the government
and of the Parliament ... some significant Government legislation was not
passed by the Senate. There are measures that we have not even put to the
Parliament because we know that they would not achieve passage through the
Senate”. (PP 129/1984, p. 5)
And in
1987 Prime
Minister Hawke advised: “In summary, I regard the situation which has arisen in the
Parliament as critical to the workings of the Government and the Parliament.
The Senate has been spending large amounts of time debating matters of marginal
significance, with the effect of reducing substantially the time available for
proper consideration of essential government legislation. The imposition of
artificial deadlines by the Senate on receipt of government bills for passage
has exacerbated this problem. Just today the Senate has refused to reconsider
the Government’s legislation to extend television services to rural areas.” (PP
331/1987, p. 2)
Argument
about the workability of the Parliament is sometimes joined by argument about
the importance of decisions to be made in the future. Prime Minister Cook said that “It has
been apparent to all that the Federal Parliament will shortly be faced with the
most serious financial difficulty which has yet come before it”.
(PP 2/1914-17, p. 1)
The
1983 advice included the following observation:
It is of paramount importance in facing the difficult
economic circumstances that lie ahead that the Government knows that it has the
full confidence of the Australian people and that the Australian people have
full confidence in its Government’s ability to point the way towards recovery.
I regard this as of such paramount importance that on this issue alone I
believe that I am justified in asking Your Excellency to dissolve the
Parliament and issue writs for a general election in both Houses.
(PP 129/1984, p. 5)
Governor-General
Munro-Ferguson, in 1914, responded simply that he had decided to accede to the
Prime Minister’s request “having considered the parliamentary situation”.
(PP 2/1914-17, p. 1)
Governor-General
Hasluck refused to be drawn in 1974: as it was clear that the grounds for
granting simultaneous dissolutions were provided by the parliamentary history
of the six nominated bills, it was “not necessary for [him] to reach any
judgment on the wider case [the Prime Minister had] presented that the policies
of the Government have been obstructed by the Senate”. He concluded: “It seems
to me that this is a matter for judgment by the electors”. (PP 257/1975, p. 38)
The
simultaneous dissolutions of 1975, whilst not providing opportunity for advice
in the usual manner, nevertheless disclosed the views of the Governor-General
in authorising simultaneous dissolutions on that occasion. The election itself
was brought on by the Prime Minister’s inability to secure passage of
appropriation legislation through the Senate. The Governor-General decided that
“the appropriate means is a dissolution of the Parliament and an election for
both Houses”.
Governor-General
Kerr, in his ‘Detailed Statement of Decisions’, specifically rejected use of a
periodical election for the Senate (due by 30 June 1976) as a possible
resolution of the deadlock because it would “not guarantee a prompt or
sufficiently clear prospect of the deadlock being resolved in accordance with
proper principles”. (see ASP, 6th ed., p. 85) The
treatment of this possibility in this instance is not dissimilar to that of Prime Minister Cook’s review of
possible solutions to the situation faced by his Government.
Governor-General Stephen adopted a
different view in 1983. In considering the Prime Minister’s advice he decided,
on the basis of “such precedents as exist”, that he should, inter alia,
“pay regard ... to the workability of Parliament”; and it was on this “score”
that he sought further advice from the Prime Minister. The Prime Minister’s
counsel was unambiguous: “Clearly, there is a need for the Government, in the
critical period we face, to have decisive control over both Houses of
Parliament”. (PP 129/1984, p. 41)
10. The process of enacting legislation by joint
sitting following simultaneous
dissolutions may be the subject of review by the High Court to ensure
compliance with the terms of section 57.
In 1974 legislation
of the Whitlam Government creating a Petroleum and Minerals Authority was held by the
High Court to be invalid on
the ground that its enactment did not comply with the requirements of
section 57. In particular, the
Court held that the provision for an interval of three months between first
rejection by the Senate and second passage by the House of Representatives had
not been observed. In so deciding, the
Court determined that the fact that the Senate had not passed the bill on 13 December 1973, the day on which
it was received from the House of Representatives, did not constitute a failure
to pass.
Among
the findings of the Court on this matter were the following:
The
Court has jurisdiction to intervene at any stage in the special process
provided by s. 57 to restrain excesses of constitutional authority, but it
should not do so before a proposed law is passed by a joint sitting in any case
where the proposed law can be declared invalid if s. 57 has not been
complied with. (Cormack v Cope 1974 131 CLR 432)
The
provisions of s. 57 are not concerned with internal parliamentary
procedure but constitute conditions of law-making; the principle that courts
may not examine the law-making process has no application where a legislature
is established and governed by an instrument which prescribes that certain laws
may only be passed in a particular way. (Victoria v Commonwealth 1975
7 ALR 1)
The
question of whether there was any failure to comply with the provisions of
s. 57 is justiciable. (Victoria v Commonwealth 1975
7 ALR 1)
11. Amendments
may be included in a bill on its second presentation.
Section 57 allows a
bill submitted to the Senate for a second time to include “any amendments which
have been made, suggested, or agreed to by the Senate”. This provision has not
been subjected to judicial analysis, but see C.K. Comans, ‘Constitution,
section 57 — further questions’, Federal Law Review, 15:3,
September 1985, p. 243. For the question of amendments which may be
submitted to a joint sitting, see below under Joint sittings of the Houses. If
the Senate were to agree to amendments to a bill but reject it at the third
reading, it may be doubted whether those amendments could be included in the
bill on its second presentation (this question arose in relation to the New Tax
System Bills in May 1999). For a bill resubmitted to the Senate after a three
month interval with amendments made by the Senate, see the Land Fund and
Indigenous Land Corporation (ATSIC Amendment) Bill 1995: the original bill, the
ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994 was still
in the possession of the Senate after the government had disagreed to some
Senate amendments; see also SD, 21/3/1995, pp 1803-4, for an observation
by a senator that a mistake had been made in incorporating one of the Senate’s
amendments, which probably prevented the bill validly providing a basis for a
simultaneous dissolution, apart from the
dubious character of the government’s claim that the original bill had failed
to pass within the meaning
of section 57.
12. A disagreement
between the Houses over amendments probably requires more than a single
rejection of Senate amendments by the government to satisfy the requirements of
section 57.
In Victoria v Commonwealth 1975 7 ALR 1, the
Chief Justice made the following observation (at 16):
The expression in s 57
is “passes with amendments with which the House of Representatives will not
agree”. Those words would not, in my opinion and with due respect to a contrary
opinion attributed to Sir Kenneth Bailey, necessarily be
satisfied by the amendments made in the first place by the Senate. At the least, the
attitude of the House of Representatives to the amendments must be decided and,
I would think, must be made known before the interval of three months could
begin. But the House of Representatives, having indicated in messages to the
Senate why it will not agree, may of course find that the Senate concurs in its
view so expressed, or there may be some modification thereafter of the
amendments made by the Senate which in due course may be acceptable to the
House of Representatives. It cannot be said, in my opinion, that there are
amendments to which the House of Representatives will not agree until
the processes which parliamentary procedure provides have been explored.
Although
the question was not decided by the Court, it is reasonable to conclude that
there is not a disagreement over amendments within the terms of section 57
until the House has disagreed with Senate amendments and the Senate has had an
opportunity, by the return of the bill to the Senate, to decide whether it
insists on its amendments.
In 1997-98 the
government claimed that the conditions of section 57 had been met in respect of
the Native Title
Amendment Bill 1997 by the government rejecting some Senate amendments in the
House and immediately laying the bill
aside without returning it to the Senate. This claim was disputed by advices
provided to senators by the Clerk of the Senate. (The advices were tabled in
the Senate: 1/4/1998, J.3541.) As the government did not proceed to
simultaneous dissolutions on the basis of this bill, there was no opportunity
for this question to be judicially answered. The view then taken seems to have been abandoned in the case
of the Workplace Relations Amendment (Fair Dismissal) Bill 2002 [No. 2], which
made a further journey between the Houses after the Senate had already once
insisted on its amendments (24/3/2003, J.1629).
For the “processes which parliamentary procedure
provides” referred to by the Chief Justice, see Chapter 12, Legislation. See also H. Evans, ‘Constitution, section 57’, Constitutional Law and
Policy Review, 1.2, August 1998.
On
occasions the government in the Senate has voted against the third readings of
its own bills, apparently to express disapproval or rejection of amendments
made by the Senate to the bills (Workplace Relations Amendment (Prohibition of
Compulsory Union Fees) Bill 2002, 21/8/2002, J.621; Workplace Relations
Amendment (Genuine Bargaining) Bill 2002, 25/9/2002, J.822). If those bills had been rejected at the third reading, the government could not have claimed
that there was a disagreement between the Houses over amendments, because the
House of Representatives would not have considered the amendments. It would
also be difficult to argue that the Senate had rejected or failed to pass the
bills when the government had voted against them.
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