Chapter 21 - Relations
with the House of Representatives
Reform of section 57
Section 57 of the
Constitution was intended to provide a mechanism for resolving deadlocks
between the two Houses in relation to important legislation. By judicial
interpretation, and by the misuse of the section by prime ministers over the
years, it now appears that simultaneous dissolutions can be sought in respect
of any number of bills; that there is no time limit on the seeking of
simultaneous dissolutions after a bill has failed to pass for the second time;
that a ministry can build up a “storehouse” of bills for simultaneous
dissolutions; that the ministry which requests simultaneous dissolutions does
not have to be the same ministry whose legislative measures have been rejected
or delayed by the Senate; that virtually any action by the Senate other than
passage of a measure may be interpreted as a failure to pass the measure, at
least for the purposes of the dissolutions; and that the ministry does not need
to have any intention to proceed with the measures which are the subject of the
supposed deadlock after the elections. By putting up a bill which is certain of
rejection by the Senate on two occasions, a ministry, early in its life, can
thus give itself the option of simultaneous dissolutions as an alternative to
an early election for the House of Representatives. This gives a government a
de facto power of dissolution over the Senate which it was never intended to
have, and greatly increases the possibility of executive domination of the
Senate as well as of the House of Representatives:
The power of a double
dissolution is one of the reserve powers of the Constitution and should only be
resorted to on great and urgent occasions involving momentous issues of
legislative policy. (John Quick, The Legislative Powers of the Commonwealth
and the States of Australia, 1919, p. 641)
Consideration should be given to a reform of section 57 to restrict the
power of a ministry to go to simultaneous dissolutions as a matter of political
convenience. In order to restrict section 57 to its intended purpose, a
limitation should be placed on the number of measures which may be the subject
of a request for dissolutions, time limits should be placed upon such
dissolutions in relation to the rejection of the measures in question, and a
prime minister should be required to certify that the measures in question are
essential for the ministry to carry on and that it is the intention of the
ministry to proceed with the measures should it remain in office, and the Governor-General should be required
to be satisfied independently as to those matters. Any ambiguity as to the amendments
which may be submitted to a joint sitting should also be removed.
In October 2003
the then Prime Minister announced that he was considering a scheme of
constitutional amendment, supposedly to “reform” section 57, but in effect
either to allow legislation to bypass the Senate or to give the Prime Minister
greater control over the electoral cycle. A consultative group appointed by the
Prime Minister reported in 2004 that the electors would not approve such
schemes. (15/6/2004, J.3439-40; letter from the Clerk of the
Senate to the consultative group, 4/11/2003)
A simpler method of resolving
disagreements between the Houses could be sought without, unlike such
proposals, giving a government in control of the House of Representatives
unfettered power to legislate by decree. At the Constitutional Convention of
1897, a proposal was considered to refer legislation in disagreement to a
referendum, to allow the electors to resolve the issue. This would provide a
wholly democratic method of resolution without destroying the essential
safeguard of bicameralism.
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