Chapter 7 - Meetings
of the Senate
Meetings after prorogation or dissolution of House
Under section 5 of
the Constitution, the Governor-General may by proclamation prorogue the
Parliament. Prorogation, on the conventional interpretation, has the effect of
terminating a session of Parliament until the date specified in the
proclamation or until the Houses are summoned to meet again by the
Governor-General, and of terminating
all business pending before the Houses.
Prorogation is regarded as dispensing with sittings of the Senate which
have been fixed by order of the Senate. Orders of the Senate setting its
sitting days are regarded as operating only so long as the parliamentary
session continues and as having no effect if a prorogation intervenes, unless
express provision is made for sittings after prorogation (see below). Similarly, orders
of the Senate directing committees to meet, for example, for estimates
hearings, do not operate if a prorogation intervenes. Most committees have the
power to meet after a prorogation and could meet if they choose to do so.
The Senate has not
met after a prorogation and before the opening of the next session by the
Governor-General. The question of whether it could do so has been the subject
of differing opinions. These were contained in documents presented to the
Senate on 19 and 22 October 1984. The documents were:
Letter from the Attorney-General (Senator Greenwood) to the President of the Senate (Senator Cormack), 24
October 1972.
Opinion by Mr R.J. Ellicott,
when Solicitor-General.
Opinion by Professor C. Howard, University
of Melbourne, March 1973.
Opinion by Professor G. Sawer, Australian National University.
In the matter of the Power of the Senate
or its Committees to sit after dissolution or prorogation—Opinion by the
Solicitor-General, Dr G. Griffith, 9
October 1984.
The Power of the Senate or Its Committees
to meet after a dissolution of the House of Representatives or a prorogation of
the Parliament and the publication of a Committee Report when the Senate is not
sitting—Paper by Senate Clerk-Assistant (Committees), Mr H. Evans,
18 October 1984.
The generally accepted view is that a prorogation, as well as
terminating a session and pending business, prevents the Houses of the
Parliament meeting until they are summoned to meet by the Governor-General or
they meet in accordance with the proclamation of prorogation. The opinion of Professor Howard, however, is that
a prorogation does not prevent the Senate meeting. The basis of this view is
that, while a prorogation prevents the Parliament as a whole meeting for
legislative purposes, under Australia’s constitutional arrangements the Senate may meet to
transact its own business as it chooses.
The provisions in
standing order 55, relating to the
calling of the Senate to meet at the request of an absolute majority of
senators, apply only to periods when the Senate is adjourned, as their history
and their context in the standing orders indicate.
A prorogation does
not, however, prevent Senate committees meeting
if they are authorised by the Senate to do so. It may appear paradoxical that
the Senate may authorise its committees to do what it cannot do itself, but the
generally accepted view is that this is one of the powers of the Senate under
section 49 of the Constitution (see, for example, of the opinion of 9 October 1984 of the
Solicitor-General). Most Senate committees are empowered by the Senate to meet
after a prorogation.
Under
section 5 of the Constitution, the Governor-General may also by proclamation
dissolve the House of Representatives.
Before 1928 it was
the practice to prorogue the Parliament prior to a dissolution of the House of
Representatives. This is also the practice in the United Kingdom. From 1928 to 1993
dissolutions of the House of Representatives occurred without a preceding
prorogation. Due to an error in
the wording of the dissolution proclamation, which arose from a
misunderstanding of the procedures, the dissolution proclamations during that
period included a phrase purporting to discharge senators
from attendance, a phrase without
any constitutional basis. The matter was the subject of correspondence between
the Clerk of the Senate
and the Official Secretary to the Governor-General, which was tabled in the
Senate on 14 August 1991. At the 1993 general election the practice of
proroguing the Parliament before a dissolution of the House of Representatives
was restored.
The question arises whether the Senate may meet after a dissolution of
the House of Representatives in the absence of a prorogation of Parliament.
This question was also the subject of the various opinions tabled in the Senate
on 19 and 22 October 1984. The government’s legal advisers attempted to argue
that the inclusion in a dissolution proclamation of the phrase purporting to
discharge senators from attendance was the equivalent of a prorogation,
ignoring the fact that that phrase was an error arising from confusion about
the wording of previous proclamations. The Senate, however, concluded that
there is nothing to prevent it meeting after a dissolution of the House of
Representatives. A resolution was passed on 22 October 1984, in effect
asserting the Senate’s right to meet at that time. The resolution declared
that, should the Senate meet after a dissolution of the House, the powers,
privileges and immunities of the Senate under section 49 of the Constitution
would be in force in respect of that meeting. The resolution also asserted the
right of committees empowered by the Senate to do so to meet after a
dissolution of the House.
The Senate has not met during a period when the House was dissolved,
but Senate committees have often done so, and have also often met after a
prorogation. Proceedings at such meetings have included the hearing of evidence
in public session.
If the Senate were to meet after a prorogation, the business before the
Senate would be the business pending at the prorogation, and it would be for
the Senate to determine which business it should pursue. The Senate’s agenda,
and those of its committees, are therefore regarded as continuing until the day
before the opening of the next session.
For further treatment of this matter see Chapter 19, Relations with the
Executive Government, under Effect of prorogation and of the dissolution of the
House of Representatives on the Senate.
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