Chapter 21 - Relations
with the House of Representatives
Simultaneous dissolutions of 1951
The general election for the House of
Representatives and the periodical election for the Senate held on 10 December 1949 were notable in
that they were the first to be held following enlargement of the Parliament in
1948 for the first time since the formation of the Commonwealth, and since
adoption of the proportional/preferential method of electing the Senate. The
election brought the Menzies Liberal-Country Party Government to office with a
majority in the House (74-48, with one independent) but, partly as a result of
the as yet uncompleted transition from the old method of election, in a
minority in the Senate (34-26).
Soon after the Parliament assembled in 1950 it became obvious that
there would be serious disagreements between the Houses. These were ultimately
resolved at a double dissolution election on 28 April 1951 based on the
Commonwealth Bank Bill. While the Government’s House majority was slightly
reduced (69-54), the Senate position was reversed and it now had a majority of
4 (32-28).
The proposed legislation which formed the basis of the double
dissolution was the Commonwealth Bank Bill.
In initial consideration of the proposed legislation, the bill was read
a third time in the House of Representatives on 4 May 1950 and received by
the Senate on 10 May 1950. After amendment, it was read a third time by the
Senate on 21 June 1950. The next day the House disagreed with the amendments
of the Senate; the Senate insisted on the amendments which were again rejected
by the House on 23 June 1950. The Senate reaffirmed its insistence on the amendments
on 10 October. The bill was returned to the House which ordered that the
Senate’s message be taken into consideration at the next sitting. The matter
was, however, put on the bottom of the House notice paper and was still there
when Parliament adjourned on 8 December 1950.
Meanwhile, on 4 October 1950, an identical bill, the Commonwealth Bank
Bill (No. 2) was introduced in the House of Representatives, was read a
third time a week later, and was received by the Senate on 12 October 1950.
The battle over the bill resumed the following year when, on Monday
evening 12 March
1951,
the Leader of the Government in the Senate, Senator O’Sullivan, ordered a reprint
of the Senate notice paper in order to bring the Commonwealth Bank Bill (No. 2)
to the top of the business paper. When the Senate met on 13 March 1951 it proceeded with
consideration of the bill.
The same evening, in the House of Representatives, the Prime Minister
challenged the Labor majority in the Senate to reject the measure.
However, following the second reading of the bill late that night, the
Leader of the Opposition in the Senate, Senator Ashley, successfully moved that the bill be referred to a
select committee. The resolution provided that the select committee should
report in four weeks. (This course of action had been foreshadowed in Senator Ashley’s second reading
speech.)
On the basis of advice submitted on Friday 16 March by the Prime
Minister, the Governor-General dissolved both Houses on 19 March. In the
Proclamation the Governor-General determined that the Senate had “failed to
pass” the Commonwealth Bank Bill after it had, on the first occasion, been
unacceptably amended.
In addition to the Commonwealth Bank Bill, there was disagreement
between the Houses about other legislation. At the time of the winter
adjournment the House of Representatives had laid aside the Communist Party
Dissolution Bill on the basis that amendments made in the Senate were not
acceptable. The bill was again passed by the House. When it reached the Senate,
the Government Leader (O’Sullivan) moved unsuccessfully “That the bill be declared an
Urgent Bill.” Also unsuccessful was a government attempt to suspend Standing
Orders so as to eliminate formal delays in the passage of the legislation. For
their part, the Opposition brought on its own bill, the Constitution Alteration
(Prices) Bill. It was resolved
that this bill should have precedence so long as it remained on the notice
paper.
Eventually, following a decision by the National Executive of the Labor
Party, it was decided that the Party should not oppose the Communist Party
Dissolution Bill in the form submitted to the Senate. The bill was brought
forward on 17 October and passed all remaining stages the next day. The
legislation was declared invalid by the High Court on 9 March 1951.
Another bill, the Government’s Constitution Alteration (Avoidance of
Double Dissolution Deadlocks) Bill, was referred to a select committee of the Senate for
report.
In the new year, the Labor caucus resolved on 7 March 1951, the day
following its introduction, to block government legislation amending the
Conciliation and Arbitration Act to provide for secret ballots for the election
of union officials.
Other bills which had failed to pass but did not meet the requirements
of section 57 were the Social Services Consolidation Bill and the National
Service Bill. The latter bill had been referred to a select committee which
trenchantly criticised the government for the action of the cabinet in causing
a direction to be issued to the Chiefs of Staff and certain other officials not
to attend before the committee.
The 1951 double dissolution did not involve rejection of proposed
legislation and accordingly gave rise to discussion of the meaning of “fails to
pass.” In handling the Commonwealth Bank Bill (No. 2), Prime Minister Menzies stated in advice
to the Governor-General that:
... there is clear evidence that the
design and intention of the Senate in relation to this bill has been to seek
every opportunity for delay, upon the principle that protracted postponement
may be in some political circumstances almost as efficacious, though not so
dangerous, as straight-out rejection. Since failure to pass it, in section 57,
distinguished from rejection or unacceptable amendment, it must refer, among
other things, to such a delay in passing the bill or such a delaying intention
as would amount to an expression of unwillingness to pass it. Clear evidence
emerges from the whole of the history of the legislation in the Senate. (PP
6/1957, pp 10-11)
The Prime Minister then outlined decisions of the Senate, made against
the vote of the government, which provided “evidentiary value as an indication
of the real intentions of the Senate.”
The Prime Minister further observed that when the bill came before the
Senate for the second time, the Senate might have given the bill a second
reading and immediately referred it to a select committee. Instead, there was
another second reading debate “precisely similar” to that which had occurred
months before.
The Prime Minister’s advice to the Governor-General concluded:
There is no room for doubt that ever
since the bill went to the Senate for a second time on October 12th, 1950, no
new issues have arisen in relation to it. It is a relatively short bill. Its
contentious provisions are clear, have been canvassed in both Houses of
Parliament at great length, and have been the subject, as I have shown, of a
long series of votes. The appointment of a Select Committee at this extremely
late hour is conclusive evidence of an intention to delay the bill, and clearly
constitutes a failure to pass it. (ibid., p. 12)
The Prime Minister, referring back to the double dissolution of 1914,
observed that “some importance appears to have been attached to the unworkable
condition of the Parliament as a whole.”
The Attorney-General, Senator Spicer, informed the Prime Minister in advice later put before
the Governor-General:
The words “fail to pass” in the section
are designed to preclude the Senate, upon being proffered a bill with an
opportunity to pass it with or without amendments or to reject it, from
declining to take either course, and instead deciding to procrastinate.
In the present circumstances the Senate
has had a second opportunity of choosing whether to pass with or without
amendments or to reject the proposed law. It has declined to take either course
and, unquestionably, has decided to procrastinate. In my opinion, this
completely satisfies the words “fail to pass” as properly understood in the
section and, in my opinion, the power of the Governor-General to dissolve both
Houses has arisen. (ibid., pp 16-17)
Professor K.H. Bailey, the Solicitor-General, stated that:
The addition of the words “fail to
pass” is intended to bring the section into operation if the Senate, not
approving a bill, adopts procedures designed to avert the taking of either of
these definitive decisions on it. The expression “fails to pass” is clearly not
the same as the neutral expression “does not pass”, which would perhaps imply
mere lapse of time. “Failure to pass” seems to me to involve a suggestion of
some breach of duty, some degree of fault, and to import, as a minimum, that
the Senate avoids a decision on the bill.
In a recent opinion, Sir Robert Garran
enumerated as follows, and in terms which in general I respectfully adopt, the
matters to be taken into account in ascertaining the fact of failure or
non-failure to pass:
“Mainly, I think, the ordinary practice
and procedure of Parliament in dealing with bills; including facts arising out
of the unwritten law relating to the system of responsible government: the way
in which the Government arranges the order of business and conducts the passage
of Government measures through both Houses, and the various ways in which the
Opposition seeks to oppose. It will be material to know what opportunities the
Government has given for proceeding with the bill, and what steps the Senate
has taken to delay or defer consideration.
There
are many ways in which the passage of a bill may be prevented or
delayed: e.g.
-
It may be ordered
to be read (say) this day six months.
-
It may be referred
to a Select Committee.
-
The debate may be
repeatedly adjourned.
-
The bill may be
‘filibustered’ by unreasonably long discussion, in the House or in Committee.
The first of these would
leave no room for doubt. To resolve that a bill be read this day six months is
a time-honoured way of shelving it.
The second would be fair
ground for suspicion. But all the circumstances would need to be looked at.
The third, if it became
systematically employed against the Government, would lead to a strong
inference.
But just at what point of
time failure to pass could be established, might be hard to determine ...
In the fourth case too, the
point at which reasonable discussion is exceeded, and obstruction, as
differentiated from honest opposition, begins, would be very hard to determine.
But sooner or later, a ‘filibuster’ can be distinguished from a debate ...”
Section 57 cannot of course be regarded
as nullifying the express provision in section 53 that except as provided in
that section the Senate should have equal power with the House of
Representatives in respect to all proposed laws. But it is equally clear that
on the fair construction of section 57 a disagreement between the Houses can be
shown just as emphatically by failure to pass a bill as by its rejection or
amendment. Perhaps the principle involved can be expressed by saying that the
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. (ibid., pp
18-22)
The double dissolution
was criticised on two grounds. Dr H.V. Evatt, MP, Deputy Leader of the Opposition in the House of
Representatives and a former Justice of the High Court, claimed that the
requirements of section 57 had not been met:
That section stated that there should
be an interval of at least three months between the end of the first dispute
between the House of Representatives and the Senate and the beginning of the
second dispute on the same issue before a double dissolution could be sought on
the ground that the legislation had been twice rejected or unacceptably
amended. (Sydney Morning Herald, 30/10/1950)
The second objection was that reference of the bill to a select committee
did not constitute failure to pass, such reference being clearly provided for
in the standing orders of the Senate and being a legitimate and proper function
of the Senate in the consideration of bills.
On 17 October 1951 Senator McKenna, Leader of the Opposition in the Senate, moved that
government papers relating to the double dissolution be tabled. In his speech
Senator McKenna said that production of the documents would do a great deal to
clarify certain constitutional issues involved: Whether the period of three
months which must elapse before the same bill is again presented commences from
the beginning of the dispute between the two Houses, or from the end of the
first dispute between the two Houses; in what circumstances apart from outright
rejection of a measure, or the making of amendments to it which are
unacceptable to the House of Representatives, can the Senate be deemed to have
failed to pass it; has the Governor-General, under section 57,
an absolute discretion either to grant or to refuse a request for a double
dissolution, or is he bound to act upon the advice tendered to him by the
Ministers of the Crown; and whether the government based any portion of its
case upon the general conduct of the Senate apart altogether from the
Commonwealth Bank Bill.
The Prime Minister, whilst agreeing to table the documents at “a proper
time”, told the House of Representatives that he did not propose to do so “at a
time when they would give rise to discussions in which the present occupant of
the position of Governor-General would be involved.” The documents were tabled
on 24
May 1956
(PP 6/1957).
In a foreword, the Prime Minister offered views which coincide with
those of Chief
Justice Griffith in his advice to
the Governor-General concerning the 1914 double dissolution:
In the course of our discussion, I had
made it clear to His Excellency that, in my view, he was not bound to follow my
advice in respect of the existence of the conditions of fact set out in section
57, but that he had to be himself satisfied that those conditions of fact were
established. (ibid., p.4)
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