The Discharge of Senators from Attendance on the Senate upon a Dissolution of the House of Representatives (PDF 44KB)
John Vander Wyk
Introduction
This paper contends that the practice by which the Governor-General purports to discharge Senators from attendance on the Senate during a dissolution of the House of Representatives has no historical basis and arises from a misreading of early British and Australian dissolution proclamations. The paper then asks whether there is, nevertheless, a constitutional basis for the practice, and concludes there is not.
In his proclamation dissolving the House of Representatives at noon on 26 October 1984, the Governor-General also purported to 'discharge' Senators from attendance on the Senate as from that time and date 'until the day appointed for holding the next session of the Parliament'.
This represents the recent practice, and it is based upon a misconception.
United Kingdom practice
In the United Kingdom, Parliament is 'dissolved' in the sense that a parliamentary period, measured by the life of a particular House of Commons, has ended, either by effluxion of time or by proclamation. Elections for the House of Commons must follow, and a new Parliament will result. Prorogation of Parliament is, in the United Kingdom, a prerogative act of the Crown by which all business is suspended for a time until the Parliament is once more summoned to meet. It ends a session of the Parliament without ending the Parliament, although the effect of a prorogation is to terminate all the current business of the Parliament.
At the turn of the century, the practice in the United Kingdom at the end of a Parliament was to prorogue for a short period and then, before that period expired, to dissolve the Parliament by proclamation.
The model for the first Australian dissolution proclamation was probably the proclamation dated 17 September 1900 which dissolved the United Kingdom Parliament with effect from 25 September 1900. The proclamation first recites that the Parliament 'stands prorogued to Saturday the Twenty-seventh day of October next'; it then dissolves the Parliament and goes on to state that 'the Lords Spiritual and Temporal, and the Knights, Citizens, and Burgesses, and the Commissioners for Shires and Burghs, of the House of Commons, are discharged from their Meeting and Attendance on the said Saturday the Twenty-seventh day of October next'.
The duty of attendance from which the Lords and Members of the Commons were discharged was that of coming on the day to which the Parliament stood prorogued. The reason for the discharge was that the prorogation to that day was superseded by the dissolution.
Early Australian practice
The wording of early Australian dissolution proclamations of necessity had to differ in some respects from those of the United Kingdom because of differing constitutional requirements, but the form of the proclamation was essentially the same. Thus, the first Australian dissolution proclamation, dated 23 November 1903, recites that the Parliament 'stands prorogued until the 24th day of November, 1903'; it then dissolves the House of Representatives [not the Parliament, as in the United Kingdom] and goes on to state: 'And I [the Governor-General] do hereby discharge the Honourable the Senators from attendance on the 24th day of November, 1903'. The key points to note are that:
- the Parliament stood prorogued to 24 November (the prorogation proclamation having been issued on 11 November1);
- the House of Representatives was dissolved on 23 November;
- Senators were discharged from attendance on 24 November, the date to which the Parliament stood prorogued.
Thus, the clear intention of the provision relating to Senators was to discharge them from a duty of attendance on the date to which Parliament stood prorogued.
The second Australian dissolution proclamation, dated 5 November 1906, followed the same pattern as the first: Parliament stood prorogued to 9 November 1906, the House of Representatives was dissolved on 5 November, and Senators were discharged from attendance on 9 November, the date to which Parliament stood prorogued.
The April 1913 Proclamation
A variation occurred in the third dissolution proclamation, dated 11 April 1913. On this occasion the House of Representatives was declared to be dissolved on the same date to which the Parliament stood prorogued; that is, 23 April 1913. Senators were discharged from attendance 'on that date', the relevant provision reading thus: 'and I discharge honourable Senators from attendance on that date'.
The coincidence of dates intrudes an element of ambiguity in that the reference to the discharge of Senators from attendance 'on that date' could be interpreted as referring to the date of dissolution of the House of Representatives rather than the date to which Parliament stood prorogued. Such an interpretation would, of course, be incorrect in the light of the express wording of previous United Kingdom and Australian proclamations.
Subsequent dissolution proclamations were worded in substantially the same way as that of 1913. In each case the date of dissolution of the House of Representatives and the date to which Parliament stood prorogued were the same, and in each case Senators were discharged from attendance 'on that date'.
The September 1928 proclamation
In 1928 a major departure from previous practice occurred when the House of Representatives was dissolved without Parliament having been previously prorogued. At the time of the dissolution proclamation, which was dated 27 September 1928, the Senate stood adjourned to a time and date to be fixed by the President.
The wording of the dissolution proclamation reflected this departure from previous practice, there no longer being any reference to the prorogation of Parliament. However, the provision discharging Senators from attendance remained. The wording of the relevant provision was:
Now therefore I, the Governor-General aforesaid, do by this my Proclamation dissolve the House of Representatives as on and from the ninth day of October, One thousand nine hundred and twenty-eight, and I discharge Honourable Senators from attendance on that date.
The 1928 wording was maintained in the dissolution proclamations of 1929 and 1931. In 1934 the reference in the preamble to the power of the Governor-General to prorogue the Parliament was also omitted, no doubt to reflect the then current practice of not proroguing the Parliament prior to a dissolution of the House of Representatives.
This history makes it clear that the retention in dissolution proclamations of the provision discharging Senators from attendance is, in the absence of a prorogation requiring their attendance at a future date, an error, one which probably resulted from a misreading of the dissolution proclamations issued between 1913 and 1928. The ambiguity of the reference to 'on that date', where the date in question was the date of dissolution of the House of Representatives and the date to which the Parliament stood prorogued, is most likely the cause of the misreading.
The decision not to prorogue Parliament prior to a dissolution of the House of Representatives should have resulted in the removal from subsequent dissolution proclamations of the provision discharging Senators from attendance. This did not occur.
The September 1937 Proclamation
Two important changes appeared in the wording of the dissolution proclamation dated 16 September 1937. The first change was in the wording of the preamble, which was altered to refer, for the first time, to the Governor-General's power under section 5 of the Constitution to 'appoint such times for holding the sessions of the Parliament as he thinks fit'.
The second change was in the provision discharging Senators from attendance. In the 1937 proclamation Senators were discharged from attendance not only on the date of dissolution of the House of Representatives, but were declared to be discharged until the commencement of the next session. The form of words used was as follows:
and I discharge Honourable Senators from attendance on that date and until the day appointed for the commencement of the next Session of the Parliament.
This formula, with slight variations, has been used since. The wording of the dissolution proclamation dated 26 October 1984, for example, was as follows:
Whereas section 5 of the Constitution of the Commonwealth of Australia provides that the Governor-General may, by Proclamation, dissolve the House of Representatives:
Now therefore I, Sir Ninian Stephen, the Governor-General of the Commonwealth of Australia, by this Proclamation dissolve the House of Representatives at noon on Friday, 26 October 1984.
And I discharge Senators from attendance as from that time on that date and until the day appointed for holding the next session of the Parliament.
The intention of this formulation appears to be to prevent the Senate from meeting as a body during the time that the House of Representatives is dissolved, but in the absence of a prorogation of Parliament prior to the dissolution of the House of Representatives there does not appear to be any basis for discharging Senators from attendance at all. The discharge from attendance originally belonged to the prorogation and should have been dropped from dissolution proclamations when the practice of a prior prorogation was dropped. Its retention is not supported historically.
A Constitutional Basis?
Is there, nevertheless, a constitutional basis for the retention of the discharge provision?
The most relevant provision of the Australian Constitution is section 5. This provides as follows:
The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.
After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs.
The section makes no direct reference to a power of the Governor-General to discharge Senators from attendance upon a dissolution of the House of Representatives. The power, if it exists, has to be inferred from the section. The provision upon which such an inference might be based is that which empowers the Governor-General to 'appoint such times for holding the sessions of the Parliament as he thinks fit'.
In the United Kingdom, a session is normally ended by a prorogation, hence the Westminster practice of proroguing Parliament prior to its dissolution. A dissolution of the Parliament may occur in the United Kingdom without a prior prorogation, during an adjournment of both Houses, and the session is then regarded as having ended upon the issue of the dissolution proclamation, but such occasions are infrequent. In either case a new session starts with the commencement of the new Parliament.
The customary view in Australia has been to regard a session as ending either upon a prorogation of the Parliament or a dissolution of the House of Representatives. This view appears to have resulted from the direct application of Westminster practice to Australia, but it takes no account of the fact that the Australian situation is different in a key respect, namely, that the Australian Constitution established the Senate as an independent body with a continuing existence. Section 5 of the Constitution empowers the Governor-General to dissolve only the House of
Representatives, whereas in the United Kingdom the Parliament is dissolved. The only circumstance in which a dissolution of the Senate occurs is in the event of a legislative deadlock under the provisions of section 57. The continuous character of the Australian Senate and its different origin as a federal House, in contrast with the House of Lords, make the direct application of Westminster practice inappropriate.
On the few occasions since 1900 where the United Kingdom Parliament has been dissolved without a prior prorogation, the dissolution proclamation has discharged the Lords and Members from further attendance, but the discharge has followed from the fact that both Houses, which previously stood adjourned, formally ceased to exist. A direct analogy cannot be drawn from this situation because, in the Australian context, only the House of Representatives ceases to exist. Analogy with Westminster practice would produce an Australian dissolution proclamation in which Members of the House of Representatives, but not Senators, were discharged from further attendance.
Section 5 of the Australian Constitution empowers the Governor-General to appoint times for the commencement of sessions of the Parliament, but it does not explicitly empower him to terminate sessions of the Parliament, other than by prorogation. This power, if it exists, would have to be read into the meaning of the section. Such a reading, it is submitted, is not supported within the overall context of the Constitution, particularly the Senate being a body with a continuous existence. If this is so, then the decision in 1928 not to prorogue Parliament prior to a dissolution of the House of Representatives also removed the only opportunity for the Governor-General to suspend the operations of the Senate during a dissolution of the House of Representatives.
While a session of Parliament must have an end as well as a beginning, it is suggested that in the situation of a continuing Senate, and in the absence of a prorogation, a session should be regarded as terminating not when the House of Representatives is dissolved but on the day prior to the commencement of a new Parliament, as marked by the meeting of a new House of Representatives. This would also more accurately reflect the situation whereby the Senate, since federation, has claimed the right to exercise and exercised a number of its powers while the House of Representatives is dissolved, and has reserved its position in regard to the exercise of its full range of powers.2 The Senate now regularly provides, for example, for its committees of inquiry to meet 'notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives', and a number of committees have done so without challenge.
The discharge from attendance of members of both Houses of the Parliament is a Westminster practice which, at the turn of the century, resulted from the prorogation of a Parliament prior to its dissolution. When the Parliament was dissolved, both Houses ceased to exist, and thus the members of both Houses had to be released from their obligation to attend on the day to which the Parliament had previously been prorogued. In Australia, pursuant to section 5 of the Constitution, and ignoring for present purposes the deadlock provisions of section 57, it is only the House of Representatives, not the Parliament, which is dissolved. The Senate continues in existence; it is in a different situation from that of the House of Lords.
The 'organic whole' theory that the two Houses live and die together is an incorrect application of a United Kingdom practice to a constitutionally different Australian situation. The practice may have appeared appropriate in the case of a prorogation of the Australian Parliament, although even then it does not give due recognition to the Senate's independent and continuing role, but it is entirely misapplied in the situation of a dissolution of the House of Representatives only. There appears to be no constitutional basis for Senators to be discharged from attendance on the Senate during a dissolution of the House of Representatives.