Research Note 29 1997-98

The Road to a Double Dissolution?

George Williams
Law and Bills Digest Group
3 March 1998

Section 57

Section 57 of the Constitution provides the federal Parliament with an alternative, or additional, means of enacting legislation. It is designed to enable a government in control of the House of Representatives to enact legislation in the face of a hostile Senate. Section 57 may be invoked where the following occurs:

1. A Bill is passed by the House of Representatives, but the Senate 'rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree'.
2. A three-month interval elapses.
3. The House of Representatives again passes the Bill ('with or without any amendments which have been made, suggested, or agreed to by the Senate') and the Senate again 'rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree'.

When these steps have been followed, the Prime Minister may advise the Governor-General to dissolve both Houses of the Parliament. Such an election may be called in respect of more than one Bill that has fulfilled these steps; there may be a 'stockpile' of Bills under s 57.(1) An election may not be called within six months of the expiry of the House of Representatives. This means that in the current Parliaments the last possible date for the dissolution of both Houses is 29 October 1998.

If after a double dissolution election the government is still unable to gain passage of the Bill through the Senate (that is, if the Senate again '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 Senate and of the House of Representatives. The Bill will be passed at the joint sitting if it is supported, along with any amendments, by an absolute majority of the members of the Parliament.

Under s 57, there have been six double dissolutions of the Commonwealth Parliament: 1914, 1951, 1974, 1975, 1983 and 1987. Only in 1974 was the double dissolution followed by a joint sitting.

Has the procedure been followed?

The Native Title Amendment Bill 1997 was passed by the House of Representatives on 29 October 1997. In the Senate, the Bill was amended before being passed on 5 December 1997. On 6 December 1997 the House of Representatives indicated that it would not agree to many of the Senate amendments and laid the Bill aside. This meets the requirement in s 57 that the Bill be passed by the Senate 'with amendments to which the House of Representatives will not agree'.

However, in the opinion of the Clerk of the Senate, Mr Harry Evans, s 57 has not been complied with. He argues that 'there must be an ongoing unwillingness by the House of Representatives to accept amendments made by the Senate' and thus that after rejecting amendments on 6 December 1997:

Evans concludes that: 'Unless these procedures are employed, it cannot be said that it has been clearly demonstrated that the Senate has made amendments to which the House will not agree' (emphasis in original). On Evans' view, the trigger for a double dissolution has yet to be primed.

This interpretation may, as Evans argues, be supported by 'the procedures of both Houses'. However, it is not supported by the text of the Constitution. Evans places too much weight on the words 'will not agree' in s 57 to find that it is mandatory that the Bill be returned to the Senate after the House of Representatives has rejected the Senate amendments. The Constitution merely requires that the Bill be passed by the Senate 'with amendments to which the House of Representatives will not agree'. The extra step set out by Evans goes beyond the demands of the Constitution. It is also not necessary in order to maintain the Senate's role in the law-making process. The amendment by the Senate of a Bill and the rejection of those amendments by the House of Representatives is not the end of the matter. Three months must pass, giving time for negotiation, followed by another opportunity for the Senate to consider the Bill, before a double dissolution may be called.

As Professor Dennis Pearce has made clear, the procedures of the Houses may allow a Bill to be returned to the Senate when the House of Representatives has rejected Senate amendments, but there is no obligation under s 57 to this effect. Pearce concludes that: 'Once amendments are made, the Senate is committed to a collision course unless the House of Representatives chooses to accept the amendment or give the Senate a chance to resile from its proposals.'(2) Ultimately, the steps required by s 57 would be a matter for the High Court, which has yet to decide this issue, although in Victoria v Commonwealth & Connor Barwick CJ suggested in a different context that s 57 will not be invoked 'until the processes which parliamentary procedure provides have been explored'.(3)

Evans is however correct in describing the consequences of not exactly following s 57. Even though the High Court would be extremely unlikely to void the whole double dissolution election,(4) it will declare unconstitutional any Bill passed at a joint sitting where the procedures laid down in s 57 have not been met. This occurred in 1975, when the High Court struck down the Petroleum and Minerals Authority Bill, which had been passed at a joint sitting held on 6 August 1974 following the 1974 double dissolution election. In Victoria v Commonwealth & Connor(5) the High Court held by 4:2 that the adjournment in the Senate on 13 December 1973 did not involve a 'rejection or failure to pass' under s 57 and accordingly that the Bill had not been validly enacted by the joint sitting. The decision made it clear that there will not be a 'failure to pass' where the Senate has followed the 'customary processes of debate, consideration and, in appropriate cases, inquiry by select committee and the like which are the familiar practices of parliamentary democracy'.(6) As Stephen J stated: 'The task of the Senate, in relation to Bills coming to it from the House, cannot be degraded to that of according to the legislative products of the House immediate and automatic endorsement, under threat of dissolution in the event of default.'(7)

Can the Governor-General refuse to call a double dissolution?

Evans argues that the 'Governor-General may decline to grant a simultaneous dissolution if the Governor-General is not satisfied that the conditions prescribed by section 57 exist'. Such a dissolution has never been refused. Nevertheless, it would seem likely that Evans is correct and that the Governor-General does possess such a power under s 57.(8) For example, an election could be refused if a Bill has only been rejected by the Senate once, instead of twice. However, such a power should only be exercised where s 57 has clearly not been followed. Where, as here, there is at best an arguable point that s 57 has not been complied with it would be wrong for the Governor-General to refuse to grant the dissolution. The matter should instead be left for the High Court to determine, although the High Court would be unlikely to intervene before the election to find that a double dissolution had been incorrectly called under s 57.(9)

Conclusion

The procedure followed with respect to the Native Title Amendment Bill 1997 is sufficient to invoke s 57 and to allow that Bill to be subsequently passed by a joint sitting of both Houses of the Parliament. However, the contrary view of the Clerk of the Senate means that if the Bill is passed via this means, the validity of the Bill under s 57 will be added to the grounds upon which the Bill might be challenged in the High Court.

1.  
2. Western Australia v Commonwealth (1975) 134 CLR 201.
3.  
4. Pearce, D., 'The Legislative Power of the Senate' in Zines, L. (ed), Commentaries on the Australian Constitution (1977), 119 at 146-147.
5.  
6. (1975) 134 CLR 81 at 125.
7.  
8. Attorney-General (Commonwealth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1; Victoria v Commonwealth & Connor (1975) 134 CLR 81.
9.  
10. (1975) 134 CLR 81.
11.  
12. ibid., at 170-171 per Stephen J.
13.  
14. ibid., at 171.
15.  
16. Republic Advisory Committee, An Australian Republic: The Options (1993), vol. 2, pp. 269-271.
17.  
18. Cormack v Cope (1974) 131 CLR 432.

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