Chapter 21 - Relations
with the House of Representatives
Joint sittings of the Houses
Simultaneous dissolutions of the two
Houses of the Parliament do not necessarily ensure that the proposed law(s) in
dispute between them will be settled. As has been noted, the two Houses
constitute distinctive reflections of electoral opinion and, particularly when
it is closely divided, it is possible that there will be different majorities
in the two Houses following simultaneous elections.
In the history of simultaneous dissolutions the consequent elections
have brought the disputes decisively to a conclusion on four occasions, 1914,
1951, 1975 and 1983. On only one of these occasions, 1951, was the government
whose legislation was at stake returned to office and in that instance it also
secured a majority in the Senate.
On two occasions, however, the resulting elections have not been
sufficient to resolve the fate of the legislation in dispute. In 1974, the
Whitlam Government, although supported by a majority in the House, still lacked
support for the disputed legislation in the Senate. As a consequence, a joint
sitting was convened as provided for in paragraphs 2 and 3
of section 57:
If after such dissolution the House of
Representatives 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 convene a joint
sitting of the members of the Senate and of the House of Representatives.
The members present at the joint sitting may deliberate
and shall vote together upon the proposed law as last proposed by the House of
Representatives, and upon amendments, if any, which have been made therein by
one House and not agreed to by the other, and any such amendments which are
affirmed by an absolute majority of the total number of the members of the
Senate and House of Representatives shall be taken to have been carried, and if
the proposed law, with the amendments, if any, so carried is affirmed by an
absolute majority of the total number of the members of the Senate and House of
Representatives, it shall be taken to have been duly passed by both Houses of
the Parliament, and shall be presented to the Governor-General for the Queen’s
assent.
The requirements for a joint sitting are thus that following
simultaneous elections for the two Houses, the proposed law must again be
passed by the House of Representatives, “with or without any amendments which
have been made, suggested, or agreed to by the Senate”. If the Senate then
rejects, or fails to pass the proposed law(s) or passes it (them) with
amendments to which the House does not agree, the Governor-General may convene
a joint sitting of the members of the Senate and of the House of
Representatives.
At the joint sitting the members present “may deliberate and shall vote
together upon the proposed law as last proposed by the House of
Representatives”.
The joint sitting is empowered to consider amendments proposed by one
House and not agreed by the other. To take effect these amendments must be
affirmed by an absolute majority of the total number of senators and members of
both Houses. The wording of this provision concerning amendments presents some
difficulties of interpretation, concerning which see C.K. Comans, ‘Constitution,
section 57 — further questions’, Federal Law Review, 15:3, September
1985, p. 243. The provision does not allow the government to submit to a
joint sitting completely new provisions which have not previously been
considered by the Senate, as this would amount to de facto unicameralism for
any legislation following a simultaneous dissolution. The provision refers only
to amendments agreed to by the Senate and amendments proposed by the House in
substitution for Senate amendments prior to the dissolution. It may be doubted
whether the provision allows the submission of amendments to a bill to which
the Senate agreed where the Senate subsequently rejected the bill at the third
reading (see also above, under Constitutional provisions and their application,
section 11).
The proposed law itself, with the amendments, if any, must likewise be
affirmed by an absolute majority of the total number of senators and members.
Following the simultaneous dissolutions of April 1974 the six proposed
laws in dispute were submitted to the new Parliament for consideration. They were
swiftly passed by the House of Representatives, where the guillotine was
employed, but again were rejected by the Senate. A joint sitting of the two
Houses was therefore convened for 6-7 August 1974 to deliberate and vote upon
each of the six bills “as last proposed by the House of Representatives”
(Proclamation of 30 July 1974).
Prior to the joint sitting, however, two senators sought injunctions
from the High Court to prevent it from proceeding. Issues in question concerned
consideration of more than one proposed law at a joint sitting; “stockpiling”
of bills prior to simultaneous dissolutions; the meaning of “failure to pass”
in relation to one of the proposed laws; the effect of prorogation on bills
which already met the requirements of section 57; and specification in the
Proclamation of the proposed legislation to be considered at the joint sitting.
The Court refused to grant interim injunctions: Cormack v Cope 1974 131 CLR 432.
The issues in question were ultimately determined in later challenges to laws
enacted at the joint sitting. Briefly, the Court saw no objection to more than
one bill forming the basis for simultaneous dissolutions; nor did it consider
that prorogation altered the status of a bill so far as section 57 requirements
were concerned. It did, however, eventually hold one of the six laws enacted on
this occasion to be invalid on the basis that the timetable specified in
section 57 had not been observed: Victoria v Commonwealth 1975
7 ALR 1.
So far as the joint sitting itself was concerned there were questions
about the proclamation. In answering them there was a divergence of opinion in
the Court, ranging from Chief Justice Barwick, who held that specification of the
proposed laws to be considered may invalidate the proclamation, through views
that specification was unnecessary, to positive statements that the
proclamations should always state the proposed laws which are the subject of
double dissolution and joint sitting. There are advantages in specifying the
proposed laws being considered, for this in effect provides the basis for an
agenda.
Prior to the joint sitting, rules for its conduct were drawn up and
adopted by the two Houses. These are set out in ASP, 6th ed.,
pp 1052-6.
The rules provided only for those procedures which appeared to be
necessary for the consideration of proposed laws under section 57 of the
Constitution and they kept as close as possible to standard parliamentary
practices. An exception was in the mode of putting the question on a proposed
law, namely: “That the proposed law be affirmed”. Because amendments could not
be moved at the joint sitting to any of the proposed laws, it was considered
unnecessary to take a bill through the usual three readings and committee
stage. Other rules provided for a 20 minute time limit on all speeches, relief
for the Chair, closure of debate, and suspension of the rules (those relating
to the 20 minute time limit on speeches and the closure could not be suspended).
In any matter of procedure not provided for in the rules, the Standing Orders
of the Senate were to be followed as far as they could be applied.
The venue for the joint sitting was the chamber of the House of
Representatives in the provisional Parliament House. The rules provided that
members and senators should address the joint sitting from lecterns provided on
either side of the chair.
In sittings of each
House prior to the joint sitting, other bills were introduced to enact
amendments to the Parliamentary Papers Act, the Parliamentary Proceedings
Broadcasting Act, and the Evidence Act, so that those Acts could apply to the
proceedings of a joint sitting. The Parliamentary Papers Act was amended to
protect the Government Printer in publishing the Hansard report of the joint
sitting as well as any papers that might be tabled at the joint sitting. The
amendment of the Parliamentary Proceedings Broadcasting Act ensured that the
proceedings of the joint sitting could be broadcast and televised and that the
Australian Broadcasting Commission would enjoy the same immunity in respect of
the broadcasting and televising of a joint sitting as it enjoyed in relation to
an ordinary sitting of either House. The amending Evidence Act applied
provisions of the Act to a joint sitting, so that judicial notice could be
taken of the official signature of the member presiding at a joint sitting, and
provided for documents presented at a joint sitting to be admitted in court in
evidence.
On the question of
freedom of speech at the joint sitting, it was considered that section 49 of
the Constitution applied to a joint sitting.
The matter was the subject of a resolution of the Senate:
That this Senate resolves that it be a
rule and order of the Senate that, at a joint sitting with the House of
Representatives, the proceedings are proceedings in Parliament, and that the
powers, privileges, and immunities of Senators shall, mutatis mutandis,
be those relating to a sitting of the Senate. (J.117)
A similar resolution was also agreed to by the House of
Representatives.
A further question considered was the matter of possible disagreement
by the Houses on the proposed rules. Section 50(ii) of the Constitution contemplates
that both Houses sitting separately would adopt the rules to apply to the joint
sitting. Failing agreement being reached by both Houses, it was thought
possible that a joint sitting might have sufficient authority to draw up its
own rules. A further suggestion was that the joint sitting might resolve to
adopt the standing orders and practices of the Senate as far as they could be
applied, in accordance with the parliamentary convention that the procedure of
a joint committee of the two Houses follows the procedure of committees of the
Senate when such procedure differs from that of committees of the House whether
the chair is a member of the House or not. Following that guideline, it was
suggested that the joint sitting might resolve that the standing orders and
practices of the Senate apply to the procedure of the joint sitting, subject to
certain modifications, which would include such matters as the mode of putting
questions and speaking times.
All proceedings of the joint sitting were broadcast by the Australian
Broadcasting Commission and a complete sound record was made for archival
purposes.
The joint sitting occupied two days, 6-7 August 1974, and the six
proposed laws named in the Governor-General’s proclamation were all affirmed by
an absolute majority of the total number of the members of the Senate and of
the House of Representatives, as required by section 57 of the Constitution.
The bills were so certified by the Joint Clerks, presented to the Governor-General,
and assented to. As noted above, one of the laws was subsequently held to be
invalid by the High Court.
The simultaneous
dissolutions of 1987, based on the Australian Card Bill 1986, had a simpler and
speedier resolution. Once again, the government proposing the legislation
secured a majority in the House but failed to do so in the Senate. The proposed
legislation was promptly introduced, again passing the House. The bill was then
sent to the Senate. During the second reading debate in the Senate, it was
pointed out that the bill depended for its operation upon regulations which
could be disallowed by the Senate. The bill was then abandoned by the
government, thus obviating the possibility of a joint sitting.
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