Chapter 21 - Relations
with the House of Representatives
Simultaneous dissolutions of 1975
The simultaneous elections for both
Houses on 18 May 1974 did not resolve the political situation which led to
its calling. The government retained a majority in the House of Representatives,
albeit reduced (66-61). The party situation in the Senate was ALP, 29; Liberal,
23; National Country Party, 6; Liberal Movement, 1; and Independent, 1. During the course of
the Parliament the government’s position was further weakened by the
resignation, in February 1975, of the Attorney-General, Senator Murphy (New South Wales), who was replaced
by an independent, Senator Cleaver Bunton, and the death of Senator Milliner (Queensland) on 30 June 1975. Senator Milliner was replaced by Senator Albert Field, also an
independent, whose eligibility to sit was immediately challenged. (The decision
of the two state governments not to appoint nominees of the parties of the
senators whose resignation or death had caused the casual vacancy was
unprecedented in the period since introduction of proportional representation
in 1948. The method of filling casual vacancies was the subject of successful
amendment of the Constitution in 1977.)
After the new Parliament opened, the first business centred upon the
six bills which had formed the grounds for the simultaneous dissolution. These
bills again failed to pass the Senate. A joint sitting of
the two Houses was convened in the House of Representatives chamber in the
provisional Parliament House on 6-7 August 1974. Numbers favoured the
government in the Joint Sitting (95-92) and the six bills were enacted,
although the Petroleum
and Minerals Authority Act 1974 was later declared to be invalid by the
High Court on the basis that its passage did not conform to the requirements of
section 57.
The parliamentary crisis, however, deepened in the course of the
Parliament. From the start the government laid grounds for a possible
simultaneous dissolution of the Parliament, including in the event that
appropriation legislation did not pass the Senate. By the end of 1974 there
were three bills (Health Insurance Levy Assessment Bill 1974; Health Insurance
Levy Bill 1974; and Income Tax (International Agreements) Bill 1974) meeting
the stipulations of section 57. By the time that the Houses were dissolved on 11 November 1975, the total was 21.
During 1975 the political climate was influenced by the decision to
appoint Senator Murphy to
the High Court and his replacement by an independent senator on the ground, in
the words of then Liberal Premier of New South Wales, Tom Lewis, that it was a
“contrived vacancy”; the circumstances of Speaker Cope’s resignation on
27 February 1975; controversies concerning overseas loans, including
special sittings of both Houses in July; the result of the Bass by-election
occasioned by the resignation of Defence Minister Lance Barnard on appointment
as Australian Ambassador to Denmark; selection of independent Senator A. Field by the
Queensland Parliament to fill the casual vacancy caused by the death of Senator
Milliner (ALP, Qld); and the dismissals of the Deputy Prime Minister
(Dr J.F. Cairns) and the Minister for Minerals and Energy (Mr R.F.X.
Connor).
In March 1975 Mr Malcolm Fraser replaced Mr B.M. Snedden as Leader of the Opposition in the House of
Representatives. In a press conference at the time he said that governments
should run a full term except in the event of unforeseen and reprehensible
circumstances. The Opposition in the Senate remained active in examination of
legislation and the list of rejected and twice rejected bills continued to
increase. As the time for consideration of the appropriation legislation
arising from the 1975 Budget grew closer there seemed little doubt that the
Prime Minister would not be as acquiescent to the blocking of funds by the
Senate as he had been in April 1974.
There was, at the same time, speculation that the government would seek
to restore its parliamentary position by a periodical election for half the
Senate, to be held before 30 June 1976. Some calculations indicated that the government might,
without delay, be able to add sufficiently to its numbers in the Senate,
expanded to 64 by the High Court’s decision to uphold the validity of the
Senate (Representation of
Territories) Act, to win control at least where Budget legislation was
concerned. This speculation hinged on Labor candidates successfully filling the
vacancies created by Senator Murphy’s resignation and Senator Milliner’s death,
success for former Prime Minister John Gorton in the ACT contest (combined with
that of the ALP candidate), and an affirmative vote from Senator Steele Hall,
Liberal Movement, South Australia. This strategy
depended, inter alia, on the agreement of state governors to issue the
necessary writs.
On 15 October 1975 the Opposition
announced that its members in the Senate would vote against the Loan Bill 1975,
Appropriation Bill (No. 1) 1975-76, and Appropriation Bill (No. 2)
1975-76. The motion for the second reading of these bills would be amended to
the effect that the legislation “be not further proceeded with until the
Government agrees to submit itself to the judgment of the people, the Senate
being of the opinion that the Prime Minister and his Government no longer have
the trust and confidence of the Australian people ...”.
The Prime Minister responded the following day with a detailed
resolution in the House of Representatives in which the claim was made that
“the Constitution and the conventions of the Constitution vest in [the House of
Representatives] the control of the supply of moneys to the elected Government
and that the threatened action of the Senate constitutes a gross violation of
the roles of the respective Houses of Parliament in relation to the
appropriation of moneys”.
The reference in the resolution to the House of Representatives’
control of the supply of money is true only to the degree that initiative in
money matters is vested in that House; the Senate has constitutional power to
defer or reject all bills. Any contention that there is a convention that the
Senate should not defer or reject money bills is insupportable:
-
When the
executive government first sought funds in 1901, the Senate deferred the
passing of supply until the government acknowledged that the provision of
supply was a joint grant of the two Houses.
The
Senate followed up in 1904 by resolving that an Address be presented to the
Governor-General praying His Excellency that, on all occasions when opening or
proroguing Parliament, due recognition should be made of the constitutional
fact that the providing of revenue and the grant of supply is the joint act of
the Senate and the House of Representatives, and not of the House of
Representatives alone.
-
In 1974 the
Opposition in the Senate moved to defer the appropriation bills until the
government agreed to submit itself to the judgment of the people. The then
Leader of the Government in the Senate (Senator Murphy) moved the closure to
the Opposition’s motion, declaring that if the closure motion were defeated,
the government would treat that as a denial of supply and that the Prime Minister
would then tender certain advice to the Governor-General. The closure motion
was defeated and Parliament was dissolved the next day, 11 April 1974.
-
See also
appendix 6 listing money bills in respect of which the Senate has not only made
requests for amendments but has pressed its requests until complied with by the
House of Representatives.
-
Tax bills which passed
the House of Representatives but were rejected by the Senate include the
Entertainments Tax Bill 1920, Lessee Tax Bill (No. 2) 1924 and Income Tax
Bill 1965.
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Precedents in the
Australian states for upper houses denying supply to a government include: 1878
Victoria; 1912 South Australia; 1947 Victoria; 1948 Tasmania; 1952 Victoria.
Furthermore, on 18 June 1970 (SD, p. 2647) the
then Leader of the Opposition in the Senate (Senator Lionel Murphy, QC, Australian Labor
Party) said:
The Senate is entitled and expected to
exercise resolutely but with discretion its power to refuse its concurrence to
any financial measure, including a tax bill. There are no limitations on the
Senate in the use of its constitutional powers, except the limitations imposed
by discretion and reason. The Australian Labor Party has acted consistently in
accordance with the tradition that we will oppose in the Senate any tax or
money bill or other financial measure whenever necessary to carry out our
principles and policies. The Opposition has done this over the years, and, in
order to illustrate the tradition which has been established, with the
concurrence of honourable senators I shall incorporate in Hansard at the end of
my speech a list of the measures of an economic or financial nature, including
taxation and appropriation bills, which have been opposed by this Opposition in
whole or in part by a vote in the Senate since 1950.
Addressing himself to the Appropriation Bill (No. 1) 1970-71, the then
Leader of the Opposition in the House of Representatives, Mr E.G. Whitlam, QC,
said on 25 August 1970:
Let me make it clear at the outset that
our opposition to the Budget is no mere formality. We intend to press our
opposition by all available means on all related measures in both Houses. If
the motion is defeated, we will vote against the bills here and in the Senate.
Our purpose is to destroy this Budget and to destroy the Government which has
sponsored it. (HRD, p. 463.)
As foreshadowed by Mr Whitlam, the Australian Labor Party in the Senate voted against
the third reading of Appropriation Bill (No. 1) 1970-71 and also against the
third reading of the Appropriation Bill (No. 2) 1970-71; the voting on the
first bill was 25 Ayes and 23 Noes and on the second bill 24 Ayes and 23 Noes.
On 1 October 1970, Mr Whitlam, speaking in the House of Representatives with
reference to the receipts duties legislation, said:
We all know that in British parliaments
the tradition is that, if a money bill is defeated, as the receipts duties
legislation was defeated last June [by the Senate], the government goes to the
people to seek their endorsement of its policies. (HRD, pp 1971-2.)
In the above-mentioned statements, Mr Whitlam was referring to
the rejection of a money bill. On 21 October 1975 (pp 2301-2), Mr Whitlam drew attention to
the fact that the Senate had deferred, not rejected, the appropriation bills
1975-76. Because the Senate had not rejected the appropriation bills, they were
still before the Senate and it was open to the Senate to pass the bills.
The next parliamentary development was on 21 October 1975 when the
House of Representatives resolved to send a message to the Senate asserting
that the action of the Senate in delaying the passage of the appropriation
bills was not contemplated within the terms of the Constitution and was
contrary to established constitutional convention, and requesting the Senate to
reconsider and pass the bills without delay. The Leader of the Government in
the Senate (Senator Wriedt), in response, proposed a motion for the restoration of the
appropriation bills to the notice paper. The next day, however, the Opposition
successfully moved an amendment declaring that there was no convention and
never had been any convention that the Senate should not exercise its
constitutional powers. The Senate affirmed that it had the constitutional right
to act as it had and, now that there was a disagreement between the Houses of
Parliament and a position might arise where the normal operations of government
could not continue, a remedy was available to the government under section 57
of the Constitution to resolve the deadlock. In the debate, government and
Opposition again declared their determination not to back down.
On 23 October 1975 the Senate considered two further appropriation bills
sent to it by the House of Representatives. These bills were identical in every
respect to Appropriation Bill (No. 1) 1975-76 and Appropriation Bill (No.
2) 1975-76, consideration of which had been deferred by the Senate on 16 October 1975 until the
government agreed to submit itself to the judgment of the people. The second
bills met the same fate as the first bills, being deferred until the government
agreed to an election. Thus the deadlock continued, the Senate contending that
the remedy was available to the government under section 57 of the Constitution
(the simultaneous dissolutions provision) and the Prime Minister adamant that
while he commanded a majority in the House of Representatives there would be no
election for that House at the behest of the Senate.
Over the following weeks the government and Opposition engaged in
various stratagems but the crisis remained unresolved:
-
27
October 1975: Mr Khemlani, a central figure in the overseas loan raising controversies, returned
to Australia. Neither the
government nor Opposition responded to his proposal for a Senate hearing.
-
29
October 1975: the Opposition in the Senate gave notice of motion for appointment of
a select committee to inquire into aspects of the overseas loan raising
activities of the government, but the motion was not proceeded with.
-
30 October 1975: the
Governor-General spoke to the Prime Minister and the Leader of the Opposition
in the House of Representatives. Following the talks, both leaders reaffirmed
their determination not to give in and the deadlock remained.
-
The
Leader of the Opposition in the House suggested a compromise — passage of the
Budget bills in return for an undertaking to hold a general election for the
House and a periodical election for the Senate before 1 July 1976. The
compromise was rejected.
-
5
November 1975: a government motion to restore the appropriation bills to the Senate
notice paper was negatived. Further, identical appropriation bills were sent by
the House. Although the bills were declared to be urgent bills, the Opposition
again successfully moved that the bills be not further proceeded with until the
government had submitted itself to the people.
-
5
November 1975: Loan Bill 1975 again blocked.
-
11
November 1975: the Prime Minister and the Leader of the Opposition met at 9 am. They did not reach agreement. When the House met
at 11.45 am the Opposition moved to censure the government; the government
countered with a resolution censuring the Leader of the Opposition.
During the luncheon adjournment the Governor-General dismissed the
Prime Minister and commissioned the Leader of the Opposition to form a
caretaker government which was able “to secure supply and willing to let the
issue go to the people”.
The
Governor-General issued a statement on his decisions of 11 November 1975. He wrote that it
was necessary for him “to find a democratic and constitutional solution to the
current crisis which will permit the people of Australia to decide as soon
as possible what should be the outcome of the deadlock which developed over
supply between the two Houses of Parliament and between the Government and the
Opposition parties”.
He stated that “the Senate undoubtedly has constitutional power to
refuse or defer supply to the Government. Because of the principles of
responsible government a Prime Minister who cannot obtain supply, including
money for carrying on the ordinary services of government, must either advise a
general election or resign”.
The Governor-General drew a distinction between the Commonwealth
Parliament and that of the United Kingdom, pointing out that under the Constitution of Australia
“the confidence of both Houses on supply is necessary to ensure its provision”.
In a detailed statement of reasons the Governor-General stated that he
had come to the conclusion that there was “no likelihood of a compromise”. He
considered that “When ... an Upper House possesses the power to reject a money
bill including an appropriation bill, and exercises the power by denying
supply, the principle that a government which has been denied supply by the
Parliament should resign or go to an election must still apply — it is a
necessary consequence of Parliamentary control of appropriation and expenditure
and of the expectation that the ordinary and necessary services of Government
will continue to be provided”.
Of the Senate, the Governor-General wrote: “It was denied power to
originate or amend appropriation bills but was left with power to reject them
or defer consideration of them. The Senate accordingly has the power and has
exercised the power to refuse to grant supply to the Government”.
He specifically observed that he would have rejected advice for a
periodical election of senators because such an election “held whilst supply
continues to be denied does not guarantee a prompt or sufficiently clear
prospect of the deadlock being resolved in accordance with proper principles”.
Chief Justice Barwick
in a letter of 10 November 1975 to the Governor-General, pointed to the
Senate’s position in the parliamentary framework specified by the Constitution:
“The Parliament consists of two houses, the House of Representatives and the
Senate, each popularly elected, and each with the same legislative power, with
the one exception that the Senate may not originate nor amend a money bill”.
And again: “... the Senate has constitutional power to refuse to pass a money
bill; it has power to refuse supply to the Government of the day. Secondly, a
Prime Minister who cannot ensure supply to the Crown, including funds for
carrying on the ordinary services of Government, must either advise a general
election (of a kind which the constitutional situation may then allow) or
resign”.
In the House of Representatives, Malcolm Fraser, now Prime Minister, announced that he had accepted the
Governor-General’s commission and that he would seek to secure passage of
appropriation legislation then before the Senate. He also stated that all bills
in a double dissolution position would be put forward as the basis for the
dissolution.
While these proceedings were continuing in the House of
Representatives, the Senate had resumed at 2 pm and dealt with some other business.
At 2.20 pm the first Order of the Day was called on by the Clerk, the
consideration of Message No. 406 from the House of Representatives (J.1022-3)
calling upon the Senate to pass the appropriation bills without further delay.
The Order of the Day having been called on, Senator Wriedt moved:
That, responding to Message No. 406 of
the House of Representatives again calling upon the Senate to pass without
further delay the Appropriation Bill (No. 1) 1975-76 and the Appropriation Bill
(No. 2) 1975-76, and responding to the Resolution of the Senate agreed to on 6
November on the voices and without division that the Appropriation bills are
urgent bills, and in the public interest, so much of the Standing Orders be
suspended as would prevent a Question being put by the President forthwith —
That the bills be now passed — which Question shall not be open to debate or
amendment. (J.1031)
The motions were agreed to on the voices and the appropriation bills
passed the Senate. Then the Senate suspended at 2.24 pm, not to meet again
until after general elections for both Houses, the date of which was
subsequently fixed for 13 December 1975.
The extraordinary feature of the proceedings was that the Senate was
not advised that there had been a change of government during the luncheon
adjournment. If the Senate had been advised of the change of government, it is
unlikely that the former Government Leader in the Senate would have proceeded
with the passing of supply. Obviously Senator Withers (Leader of the Opposition when the Australian Labor
Party was in office) knew what the position was and he did not oppose a speedy
passage of the appropriation bills.
If the Senate had been informed of the dismissal of the Whitlam
ministry, the course of events might have been different. For example, the
Australian Labor Party senators could have delayed the calling on of the
appropriation bills by moving motions to bring on other business. Having a
majority, the Liberal-National Country Party senators would eventually have
taken charge of the business of the Senate, but they would have had problems.
If Senator
Withers had moved the
motion proposed by Senator Wriedt, and if the motion had been opposed by Australian Labor
Party senators, it would have failed unless carried by 31 affirmative votes,
being an absolute majority for the suspension of the standing orders without
notice as required by then standing order 48. To muster 31
votes, the support of Senator Steele Hall (Liberal Movement) or Senator Bunton (Independent)
would have been required. There were, therefore, procedures and circumstances
which might have upset any timetable for a dissolution of the Parliament on 11 November 1975, but the final act
could only have been delayed, not changed.
In the House of Representatives, the Prime Minister (Mr Fraser), having announced
the change of government, moved that the House adjourn, but the motion was
negatived by 64 Labor votes to the new government’s 55 votes. Thereupon
Mr Whitlam (as Leader of the Australian Labor Party) moved: “That this
House expresses its want of confidence in the Prime Minister and requests Mr
Speaker forthwith to advise His Excellency the Governor-General to call the
honourable Member for Werriwa (Mr Whitlam) to form a Government”. It was argued
that, the budget bills having been passed by the Senate, there was no longer a
deadlock between the two Houses, the party Mr Whitlam led had the
confidence of the House, and that Mr Whitlam should therefore be called to form a government. As an
argument it fails, because obviously the Senate agreed to supply on the
understanding that an election would ensue. Also, a government which lacks the
confidence of the House may properly appeal to the electorate, which is what Mr Fraser’s government did.
The House of Representatives, by 64 Labor Party votes to 54 for Mr Fraser’s Government,
carried the motion of want of confidence in the Prime Minister, Mr Fraser. Mr Speaker announced that he
would convey the advice to the Governor-General at the first opportunity and
the House then suspended from 3.15 pm to 5.30 pm, but it was destined not to meet again till after the
general elections for both Houses on 13 December 1975.
If there had been more time for thought, other procedures might have
been devised. For example, the Labor Party might have considered stalling
proceedings in the Senate while the Labor Party majority in the House of
Representatives put through a motion rescinding all votes on the appropriation
bills and sending a message to the Senate acquainting that House of the
decision of the House of Representatives and desiring the return of the bills.
If the Senate ignored a request for the return of the appropriation bills and
went ahead and passed them notwithstanding a message from the House of
Representatives that all votes on the bills had been rescinded, conceivably the
House could have instructed the Speaker that the bills were not to be presented
to the Governor-General for assent. Failing the passing of supply, presumably
there would have been simultaneous dissolutions and an election with what funds
were available and with what arrangements could be made for the services of the
government until the meeting of the new Parliament.
The bills forming the basis for the simultaneous dissolutions of the
Senate and the House of Representatives were, as cited in the Proclamation of 11 November 1975:
Health Insurance Levy Bill 1974
Health Insurance Levy Assessment Bill 1974
Income Tax (International Agreements) Bill 1974
Minerals (Submerged Lands) Bill 1974
Minerals (Submerged Lands) (Royalty) Bill 1974
National Health Bill 1974
Conciliation and Arbitration Bill 1974
Conciliation and Arbitration Bill (No. 2) 1974
National Investment Fund Bill 1974
Electoral Laws Amendment Bill 1974
Electoral Bill 1975
Privy Council Appeals Abolition Bill 1975
Superior Court of Australia Bill 1974
Electoral Re-distribution (New South Wales) Bill 1975
Electoral Re-distribution (Queensland) Bill 1975
Electoral Re-distribution (South Australia) Bill 1975
Electoral Re-distribution (Tasmania) Bill 1975
Electoral Re-distribution (Victoria) Bill 1975
Broadcasting and Television Bill (No. 2) 1974
Television Stations Licence Fees Bill 1974
Broadcasting Stations Licence Fees Bill 1974.
Mr Fraser’s caretaker government was sworn in on Wednesday, 12 November 1975, and comprised
himself as Prime Minister and 14 other ministers, the ratio between the Houses
being 9 members of the House of Representatives and 6 senators.
The same day, 12
November 1975, the Speaker of the House of Representatives (Mr Scholes)
addressed a letter to the Queen, communicating his concern at the maintenance
in office of Mr Fraser as Prime Minister despite his lack of majority
support in the House of Representatives and asking for the restoration of
Mr Whitlam as prime minister. The reply from Buckingham Palace, dated 17 November 1975, advised that the
only person competent to commission a Prime Minister in Australia was the Governor-General,
and the Queen had no part in the decisions which the Governor-General must take
in accordance with the Constitution.
The elections were held on 13 December 1975 and the result was
a win for the Liberal-National County Party coalition by 55 seats in the House
of Representatives and by 6 in the Senate. The party composition in the two
Houses was as follows: House of Representatives — Liberal, 68; National Country
Party, 23; ALP, 36; Senate — Liberal, 27; National Country Party, 8; ALP,
27, Liberal Movement, 1; Independent, 1.
It is of interest,
in reflecting on the events of October/November 1975, to consider what might
have happened if there had been no twice rejected bill or bills upon which to
base simultaneous dissolutions of the two Houses.
It was argued at
the time that, the disagreement between the Houses being in relation to supply,
the constitutional process of section 57 of the Constitution should have been
followed with respect to the appropriation bills. That is to say that, the
Senate having failed to pass the appropriation bills on the first occasion,
there should have been an interval of three months, the bills resubmitted and,
if they again failed to pass the Senate, then a dissolution of the Parliament
might have ensued.
The weakness of that argument is that, without supply for three months,
the machine of government could come to a halt. Obviously, the government of
the country cannot remain at a standstill for months while constitutional
requirements for a double dissolution based on an appropriation bill are being
satisfied.
Therefore, if there had been no twice rejected bill or bills upon which
to base a simultaneous dissolution at the time when the Senate withheld supply
in 1975, a dissolution of the House of Representatives alone would appear to
have been inevitable.
It is also of interest to consider whether, notwithstanding that
proposed laws were available for the purpose of a double dissolution pursuant
to section 57 of the Constitution, the refusal of supply by the Senate might
have been resolved by a dissolution of the House of Representatives pursuant to
section 5 and 28 of the Constitution and not by a dissolution of both Houses
pursuant to section 57. That could have happened, but in all the circumstances
it was fair that both Houses should have been dissolved, and that was what the
Senate resolution advocated.
The simultaneous
dissolutions of 1974 and 1975 may be regarded as affirming that a government
which has been denied supply by the Senate cannot govern and should advise a
general election or resign. If a prime minister refuses to take either course,
the Governor-General has constitutional authority to make other arrangements
for the carrying on of the government. The difficult
question is always likely to be when and in what way the Governor-General might
invoke the reserve powers. While circumstances will govern such
decision-making, the presumption must always be that the Constitution and the
public interest will prevail over all other considerations.
In 1982 the Senate passed the Constitution Alteration (Fixed Term
Parliaments) Bill 1982. The bill would have provided that the House of Representatives
could not be dissolved except in the circumstance of no person being able to
form a government with the support of the House, or under section 57 of the
Constitution. If a House were dissolved more than three months before the
expiration of its term its successor would last only till the end of that term.
These provisions would have overcome the difficulties highlighted by the 1975
simultaneous dissolutions, in that they would have effectively removed the
ability of the Senate to force an early House of Representatives election by
refusing supply. Although introduced and supported by the Australian Labor
Party, the bill was abandoned after that party came to government in 1983.
For a proposal to ensure that both Houses would be dissolved in the
event of a Senate rejection of supply, see the Constitution Alteration
(Appropriation Bills) Bill 1983 (agreed to by the Senate, but failed to gain
absolute majority, 13/10/1983, J.386).
For a proposal to allow the government access to appropriations equal
to those of the previous year in the event of a Senate rejection or failure to
pass supply, see the Constitution Alteration (Appropriations for the Ordinary
Annual Services of the Government) Bill 1987 (introduced but not considered,
23/9/1987, J.111).
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