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Chapter 19 - Relations with the executive government
Effect of prorogation and of the dissolution of the House of Representatives on the Senate
Each House of the
Parliament is empowered by the Constitution
(sections 49, 50) to regulate its own proceedings, including the times at which it
meets during a session
of Parliament. While the annual
program of sittings is normally
decided in consultation with the other House, each may independently determine
the pattern of its meetings during a session, which commences, as noted in
Chapter 7, with the opening of Parliament by the Governor-General. The
days on which a House meets, the times of meeting on a sitting day, including
any suspensions, and the time and duration of adjournments during a session are
matters to be determined by that House alone.
The commencement
and termination of sessions of Parliament,
however, are matters determined not by
the Houses themselves but by the executive branch of government. Parliament as a collective
entity, consisting of the monarch, the Senate and the House of Representatives,
comes into being when the Governor-General, under section 5 of the
Constitution, appoints the time for a session to begin. Except when a session
of Parliament ends as a result of the expiration of the three-year term of the
House of Representatives, sessions are terminated by the Governor-General on
the advice of the government. The following actions by the Governor-General
under the Constitution bring a session to an end: the dissolution of the House of
Representatives (s. 5), the simultaneous dissolution of both Houses (s. 57), or the prorogation
of the Parliament (s. 5). The period between
the end of a session of Parliament and its next
meeting at the commencement of the subsequent session is termed a “recess”.
This power of prorogation is inherited from the unwritten British
constitution, and is closely associated with the monarchy. The monarch
determines when the Parliament meets and may terminate its meeting by
prorogation, which puts it out of session until summoned again, and quashes all
legislative business pending before it. The historical rationale behind the
power is that Parliament is only an advisory council to the monarch and meets
only when the monarch requires advice. Much used by Stuart kings to dispense
with rebellious parliaments, the power is now normally exercised on the advice
of the prime
minister. As with other royal powers it is generally accepted that there are
circumstances in which advice could be
refused. For example, if a prime minister were to lose a party majority in the
lower house and were to advise a prorogation simply as a means of avoiding a
no-confidence motion and of clinging to power, the sovereign would be entitled
to decline to act on the advice. Leaving aside such circumstances, prorogation
provides the executive government, the ministry, with a handy weapon to use
against troublesome upper houses. A government can normally use its compliant
party majority in the lower house to adjourn that house, but where such a
majority is lacking in the second chamber prorogation may be the only means of
avoiding embarrassing parliamentary debate or inquiry. It is, however,
something of a two-edged sword so far as governments are concerned, as it
terminates all pending government legislation, which must then be revived when
the Parliament is called to meet again. The potential for misuse of the power
adds significance to the question whether prorogation prevents the Senate
meeting.
In its first
decades the Parliament was invariably prorogued before a
dissolution of the House of Representatives, and it was the usual practice for
a Parliament to be prorogued one or more times during its term, thus dividing
it into two or more sessions. The Parliament was prorogued before the
dissolution of the House in 1925 but the practice was then discontinued until
1993. During the period
1928-1990 proclamations dissolving the House of
Representatives included a phrase purporting to
discharge senators from attendance. This phrase had no constitutional basis and
arose from a misunderstanding of the procedures and previous proclamations.
(The confusion of the wording of the proclamations is more fully set out in ‘The
discharge of senators from attendance on the Senate upon a dissolution of the
House of Representatives’, by J. Vander Wyk, Clerk Assistant of the Senate, in Papers
on Parliament, No. 2, Department of the Senate, July 1988.) In 1990 the Clerk of the Senate
drew this fact to the attention of the Official Secretary to the
Governor-General. Papers relating to this matter, including an opinion by the
Solicitor-General, were tabled in the Senate on 14 August 1991. On the next
occasion on which the House was dissolved, 8 February 1993, the Governor-General
first prorogued the Parliament by proclamation, and on the same day issued
another proclamation dissolving the House of Representatives. The practice of
proroguing the Parliament before dissolving the House was also
followed in 1996, but the dissolution proclamation did
not contain the paragraph discharging senators from attendance. In 1998 the
prorogation and the dissolution were combined in one proclamation, and the
proclamations of 2001 and 2004 followed this form. In 2007 separate instruments
were signed, with the prorogation and the dissolution on different days.
Questions arise as to whether the Senate or its committees may meet
after a prorogation or a dissolution of the House of Representatives and before
the Parliament is summoned to meet again. As will be seen, these questions have
been only partly resolved.
The principal
argument advanced against the Senate continuing to meet or exercise any of its
powers after a prorogation or a dissolution of the House of Representatives is
based on the concept that the Parliament is an organic whole which in some
sense exists prior to its constituent parts. This view would have some validity
if the Parliament was elected as a whole and then divided itself into two
chambers (as was the case until 1991 in the Icelandic parliament). In such a
case the dissolution of the Parliament would necessarily entail that its
subordinate parts cease to exist. Under the Australian Constitution, however,
the three parts of the Parliament are constituted independently of each other
by separate parts of the Constitution and a Parliament is formed from these
basic constituents on the initiation of the Governor-General under section 5. In
so far as prorogation prevents the Parliament as whole from operating it has
the effect of temporarily suspending those powers and functions of the
Parliament that require the coordinate actions of its constituent parts. A
dissolution of the House of Representatives means that, for a period of time,
one of the components of the Parliament ceases to exist and thus the Parliament
cannot perform those functions for which all three parts are required,
principally the enactment of legislation. There is no constitutional provision
or doctrine, however, which would prevent the Senate from meeting for
non-legislative purposes. Similarly, should an election for half the Senate be
held when the House of Representatives is still in session there is no reason
why the House could not meet. In the absence of one of the Houses, or of the
Governor-General, the remaining parts of the Parliament may continue to
exercise those powers and perform those functions which do not require the
coordinate action of the other parts.
In support of this
view, it is to be noted that it has been held that the Governor-General
may exercise legislative
powers after a prorogation. On 1 December 1910 the
Governor-General assented to bills which had been passed prior to a prorogation
on 29
November 1910. In opinion No. 3 of 1952, dated 23 May 1952, the
Solicitor-General took the view that the royal assent may be given after
prorogation. In an opinion dated 9 October 1984 (see below) the Solicitor-General stated:
I do incline to the view that the
Constitution does not require that the Royal assent to Bills passed by both
Houses be declared and given before the Parliament is prorogued, or the House
of Representatives dissolved. Certainly this is not specifically required by
section 58. Moreover, section 60, which provides for a proposed law reserved
pursuant to section 58 for the Queen’s pleasure, clearly embraces the situation
that the Queen’s assent may be furnished after the end of the session at which
the proposed law is passed. The requirement that the Queen’s assent be made
known within two years is inconsistent with any inference that assent may be
given only during a session of the Parliament. The decision of the New Zealand
Court of Appeal in Simpson v Attorney-General (1955) N.Z.L.R. 271, 283, also is confirmatory of this
view of the Crown function. It was held that section 56 of the New Zealand
Constitution Act 1852 (which, together with section 59, is in
analogous terms to sections 58 and 60 of our Constitution) enabled the Governor-General
to assent to a Bill after the House of Representatives was dissolved; and there
was no requirement for the House of Representatives to be in session at the
time of the Royal assent.
Among the powers
which the Senate may exercise and the functions which it may perform during
recess or following a dissolution of the House are those of debating public
affairs, inquiring (principally through its committees) into matters of
concern, the presentation, publication and consideration of documents, and the
disallowance of statutory instruments. In the absence of a House of
Representatives to receive any bills initiated and passed by the Senate, the
Senate could originate legislation for subsequent consideration and could
consider and vote on legislation already passed by the House of
Representatives.
An important
argument in support of the Senate’s powers in relation to meeting during recess
and following a dissolution of the House of Representatives is that concerning
the continuing nature of the Senate. The six-year terms of senators and the
retirement of half the Senate every three years means that the Senate is a
continuing body except on those occasions when it is dissolved simultaneously
with the House of Representatives under section 57 of the Constitution. The
continuing nature of the Senate is reflected in the standing orders and other
orders of continuing effect.
Senate standing committees are
appointed at the commencement of each Parliament and continue in existence
until the eve of the opening of a new Parliament.
The Senate has not asserted its right to meet after a prorogation, but
has regularly authorised its committees to do so and they have met accordingly.
The Senate has asserted that it and its committees may meet after a dissolution
of the House of Representatives.
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