Chapter 21 - Relations
with the House of Representatives
Simultaneous
dissolutions of 1974
On 11 April 1974 Governor-General Hasluck simultaneously dissolved the Senate and the House of
Representatives, acting upon advice of Prime Minister Whitlam.
This occasion was unusual in several respects. In the first instance,
the Prime Minister’s advice did not immediately stem from disagreement over
legislation but from the decision of the Opposition (Liberal and Country)
parties, supported by the Democratic Labor Party in the Senate, to refuse
passage of the second reading of appropriation legislation until the government
agreed “to submit itself to the judgment of the people” at the same time as the
forthcoming periodical election for the Senate which had been set down for 18
May 1974. The specific background to this decision of the Opposition parties
was the announcement that Senator Vincent Gair, a former Premier
of Queensland and a former Leader of the Democratic Labor Party in the Senate,
had accepted an appointment as Australian Ambassador to Ireland.
As Gair’s term did not expire until 30 June 1977, his appointment was
seen as creating a sixth vacancy in Queensland: there was speculation that the
additional vacancy would improve the government’s chances of winning a third
seat in Queensland and thus improve its chances of securing a majority in the
Senate.
Second, while the simultaneous dissolutions of 1914 and 1951 had been
granted on the basis of a single bill only, that of 1974 was granted on the
basis of six bills believed to meet the terms of section 57 of the
Constitution. Subsequently, and again for the first time, one of the bills
(following enactment) was challenged in the High Court. The court declared the
legislation invalid because the terms of section 57 had not been met.
Finally, the simultaneous elections for the two Houses did not resolve
the disagreement and a joint sitting was thus required to consider and enact
the legislation upon which the election had been based.
The 1974 general elections for both Houses were the climax of
disagreements between the two following the general election of 1972. At that
election the ALP secured a majority in the House by winning 68 seats to 58 won
by the Opposition parties. It thus formed a government for the first time in 23
years. The party position in the Senate, however, remained as it had been since
1 July
1971:
ALP, 26; Liberal, 21; Country Party, 5; Democratic Labor Party, 5;
Independents, 3.
From the commencement of the Parliament it was clear that the Senate
would continue to be a forum of vigorous scrutiny of the government as it had
been especially in the previous half decade. Indeed, in the debate on the
Address-in-Reply, Senate Opposition Leader, Senator Withers, reminded the
Senate that it had been deliberately created by the founding fathers to act as
a check and a balance and that it might well be called upon to protect the
national interest by exercising its undoubted constitutional rights and powers.
In considering the background to the simultaneous dissolutions of 1974
it is sensible to distinguish those aspects which relate directly to
legislation, and thus potentially fall within the scope of section 57, and
other, general proceedings of the Parliament including scrutiny of regulations,
statutory rules and the like.
Four bills were postponed. Two, relating to seas and submerged lands,
were initially postponed in order to allow the states to consult each other or
to make representations to the Commonwealth Government. In postponing
consideration of the legislation it was explained that such a course was
consistent with the Senate’s role as a states assembly and that the step was
taken in the knowledge that all six state premiers (3 ALP; 2 Liberal; 1 Country
Party) were opposed.
The government, however, reintroduced the bills in the House instead of
bringing on the bills on the Senate notice paper for debate.
The second Seas and Submerged Lands Bill was eventually amended on the
ground that the proposed mining code vested too much power in the minister; the
second Seas and Submerged Lands (Royalty on Minerals) Bill was rejected as
having no relevance following rejection of the mining code.
The Compensation (Commonwealth Employees) Bill 1973 was postponed,
inter alia, to await a report on national rehabilitation and compensation from
a committee chaired by Mr Justice Woodhouse. Consideration was resumed in committee of the whole on
11 December
1973;
on motion by an Opposition senator, progress was reported and further
consideration deferred until the first sitting day of the Senate after 21 February 1974.
The Constitution Alteration (Inter-change of Powers) Bill 1973 was
deferred until after its proposals had been considered by all state governments
and by the Australian Constitutional Convention.
Three bills were referred to committees: the Constitution Alteration
(Simultaneous Elections) Bill 1973 to the Standing Committee on Constitutional
and Legal Affairs (a move deemed by the government to be a failure to pass);
the Australian Industry Development Corporation Bill 1973 and the National
Investment Fund Bill 1973 to a Select Committee on Foreign Ownership and
Control.
The following legislation was amended and the amendments were accepted
by the House of Representatives:
-
Pipeline
Authority Bill 1973
-
Cities
Commission Bill 1973
-
Australian
National Airlines Bill 1973
-
Australian
Citizenship Bill 1973
-
States
Grants (Advanced Education) Bill 1973
-
States
Grants (Universities) Bill 1973
-
Australian
Capital Territory (House of Representatives) Bill 1973
-
Schools
Commission Bill 1973
-
States
Grants (Schools) Bill 1973.
The House did not, however, accept Senate amendments to the
Constitution Alteration (Mode of Altering the Constitution) Bill 1973. A second
bill, amended in similar manner, was laid aside at the third reading because it
did not pass the Senate by an absolute majority as required by the
Constitution.
The following bills were rejected by the Senate:
-
Commonwealth
Electoral Bill (No. 2) 1973: second reading negatived on 17 May 1973;
after an interval of three months, bill again passed by House of
Representatives; second reading negatived in Senate on 29 August 1973.
-
Conciliation
and Arbitration Bill 1973: second reading negatived on 6 June 1973. (A second bill
passed by House but not in same terms, certain contentious provisions being
eliminated or amended. Thirty amendments made to the second bill, all of which
were accepted by the House.)
-
Senate
(Representation of Territories) Bill 1973: Second reading negatived on 7 June 1973; after interval of
three months, bill again passed by the House; second reading negatived by
Senate on 14 November 1973.
-
Representation
Bill 1973: Second reading
negatived on 7 June 1973; after interval of three months, bill again passed by
House (27
September 1973) but second reading negatived by Senate (14 November 1973).
-
Constitution
Alteration (Democratic Elections) Bill: second reading negatived (4 December 1973).
-
Constitution
Alteration (Local Government Bodies) Bill: second reading negatived (4 December 1973).
-
Health
Insurance Commission Bill 1973: second reading negatived (13 December 1973). In addition, the
second reading of the Health Insurance Bill 1973 was rejected by way of
amendment (12 December 1973).
-
Petroleum and
Minerals Authority Bill 1973: received from House of Representatives on 13 December 1973; debate adjourned
until first sitting day in February 1974; restored to notice paper following
prorogation on 12 March 1974; second reading negatived on 2 April 1974.
By the time that the Opposition declared its intention to block
appropriation legislation on 4 April 1974, three bills, the Commonwealth Electoral Bill (No. 2)
1973; Senate (Representation of Territories) Bill 1973; and Representation Bill 1973,
provided the basis for a simultaneous dissolution. In the period leading up to
the Proclamation dissolving the Parliament on 11 April 1974, the government
reintroduced, and the Senate negatived, the two Health Insurance Bills and the Petroleum and
Minerals Authority Bill (although the latter was negatived for the first time
in the Senate on 2 April 1974, the government appeared to argue that the three
months period commenced on 12 December 1973 when the House of Representatives
first passed the bill, an argument subsequently rejected by the High Court).
The government’s
proposals for amending the Constitution were also rejected by the Senate. Such
legislation, however, is governed by special procedures set down in section 128
of the Constitution
rather than by the provisions of section 57. Under the second paragraph of
section 128, legislation proposing a referendum, if passed by either House by
an absolute majority, and is, in the same form, passed again by an absolute
majority after an interval of three months, may be submitted to the electors
even if the other house rejects or fails to pass it, or passes it with any
amendment to which the first-mentioned house will not agree. Accordingly, the
Senate’s concurrence was not necessarily required in order to hold a referendum
to amend the Constitution.
It was, however, not only in legislation that the government
experienced vigorous second chamber scrutiny. Scrutiny manifested itself with
particular force in four matters during 1973.
On 7 March 1973 the Opposition successfully moved disallowance of a
determination of the Public Service Arbitrator increasing annual leave of
public servants from three to four weeks but in effect confining eligibility to
members of the staff associations which made application to the Arbitrator. The
determination was disallowed on the basis that public servants should not be
compelled to join a union in order to enjoy a benefit which it was considered
should be in the nature of a common rule. It was also considered that as the
Public Service Act made explicit provision for three weeks annual leave, the
appropriate method for introducing an entitlement of four weeks was by way of
amending the legislation. The Public Service Act was subsequently amended for
this purpose. The Senate later (29 March 1973) disallowed the Matrimonial Causes Rules. Opposition to
these rules included argument that, while the Senate was not opposed to divorce
reform, the rules were not consistent with the Act and were of a nature that
should be implemented by legislation, not by executive regulations.
Terrorist activity in Australia was another issue. The Senate considered that a board
of inquiry consisting of three High Court or Supreme Court justices should be
established by the government to inquire into terrorist activity in Australia
and the actions of the Attorney-General in entering the Canberra and Melbourne
offices of the Australian Security Intelligence Organisation, accompanied by
Commonwealth police officers. The Senate’s opinion was expressed in a resolution
which was agreed to on 12 April 1973 (J.124-5).
The government, however, declined to appoint the proposed board of
inquiry. The Senate responded by proposing (on the motion of the Democratic
Labor Party) that a select committee be appointed on civil rights of migrant
Australians, including the circumstances surrounding and relevant to the
Attorney-General’s actions in relation to ASIO. This motion was
negatived on 10 May 1973, when the government cancelled pairs, the
government contending that “all pairs are off” if there is anything which
amounts to a vote of confidence, and the proposed inquiry, it was argued,
involved that question in relation to the Attorney-General. It was further
argued that the non-government parties had broken convention by not providing
that the proposed committee should have a chair from the government side and
also a majority of government votes even if (as was the case) the government
were in a minority on the floor of the Senate.
The breaking of pairs which led to the defeat of the select committee
motion caused considerable bitterness and the Leader of the Opposition (Senator Withers) announced that,
at the next sitting, he would give notice for the rescission of the vote
negativing the appointment of the select committee. This was done and, on
17 May 1973, the Senate reversed the vote of 10 May and a Select Committee on
Civil Rights of Migrant Australians was appointed, consisting of seven
senators, three to be nominated by the Leader of the Government in the Senate
and four other senators, one to be nominated by the Leader of the Opposition in
the Senate, one to be nominated by the Leader of the Democratic Labor Party,
one to be nominated by the Leader of the Australian Country Party in the Senate
and one Independent senator to be nominated by the independent senators.
There was speculation in the press as to whether the government would
nominate members to the committee. In the event, government senators served on
the committee. (The committee had not reported when both Houses were dissolved
on 11 April 1974 and the committee was not re-appointed in the new Parliament.)
Added to these
non-legislative disputes was the matter of the Address-in-Reply. To the usual motion
for the adoption of a formal Address-in-Reply, the Leader of the Opposition
(Senator Withers) moved an amendment criticising the government’s economic,
defence and foreign policies. There was precedent in 1914 for an amendment
critical of government policies but, as in 1914, the government in 1973
believed there were other forms of the Senate to propose such matters and, as
the session proceeded, the Address-in-Reply debate was put aside for
consideration of the legislative program. The Address-in-Reply, as amended, was
eventually agreed to on 30 August 1973, and presented on 19 September, but no government
senator attended Government House for the presentation of the address.
On 10 April 1974 the Prime Minister
advised a simultaneous dissolution based on six bills:
Commonwealth
Electoral Bill (No. 2) 1973;
Senate (Representation of Territories) Bill 1973;
Representation Bill 1973;
Health Insurance Commission Bill 1973;
Health Insurance Bill 1973;
Petroleum and Minerals Authority Bill 1973.
He claimed that
each proposed law was of “importance to the Government”. He also drew attention
to other legislation which, he asserted, had “in one way or another been the
subject of unreasonable obstruction in the Senate”. The Prime Minister referred
also to legislation proposing amendments to the Constitution, and to Opposition
action concerning Appropriation bills.
Prime Minister Whitlam also made reference to previous simultaneous
dissolutions. That of 1914, he wrote, had been granted partly on the basis that
a dissolution of the House alone “might well not resolve the political
situation, and that a situation under section 57 of the Constitution being in
existence, a dissolution of both Houses should be ordered”.
With reference to the simultaneous dissolution in 1951, the Prime
Minister observed that Prime Minister Menzies had drawn attention to “difficulties” relating to other
legislation and “that this indicated a continuing conflict between the two
Houses”.
He concluded: “It is the Government’s view that the present
circumstances are analogous to those in which the earlier dissolutions were
granted ...”.
The
Governor-General’s reply was, however, confined to the matter as it related to
section 57. He wrote to the Prime Minister: “As it is clear to me that grounds
for granting a double dissolution are provided by the Parliamentary history of
the six bills ..., it is not necessary for me to reach any judgment on the
wider case you have presented that the policies of the government have been
obstructed by the Senate. It seems to me that this is a matter for judgment by
the electors”.
The Prime
Minister’s advice included, as an attachment, an opinion of the
Attorney-General and the Solicitor-General on application of section 57 to more
that one proposed law. Their view was “that section 57 of the Constitution is
applicable to more than one law at each of the stages it refers to”. The
Attorney-General also furnished detailed advice on the application to each
proposed law of section 57.
In responding to the Prime Minister the Governor-General stated that,
in agreeing to the advice tendered on simultaneous dissolutions, he had
“accepted the learned Opinion of the Attorney-General on the requirements for
the exercise of the Governor-General’s power under section 57 and the Joint
Opinion of the Attorney-General and the Solicitor-General on the question
whether section 57 is applicable to more than one proposed law”.
Having regard to
the provisions of section 128, the Prime Minister recommended and the
Governor-General agreed that four questions
seeking amendment of the Constitution would be submitted to the people although
the relevant legislation had not passed the Senate. The questions concerned
simultaneous elections, the mode of altering the Constitution, democratic
elections and local government bodies. None was endorsed by a majority of the
voters and in only one state, New South Wales, were the proposals supported by a majority.
The documents relating to the dissolutions were tabled on 30 October 1975
(PP 257/1975).
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