Lining up the Bills: Preparing for a Double Dissolution

Double Dissolutions and Joint Sittings of Federal Parliament

Professor Emeritus Geoffrey de Q. Walker

The Federal Constitution's Approach to Deadlocks

The range of options

All bicameral legislatures must confront the problem that arises when the two chambers firmly disagree over whether or not a particular bill should become law. There are several ways in which constitutions deal with that contingency.

The first approach is to do nothing. The constitutions of the United States and Canada fall into that category, leaving deadlocks to be resolved by negotiation and compromise. This means relying on what Professor Brian Galligan calls "reflexivity", the development of norms of conduct that tend to restrain politicians from pushing the system of government to breakdown.[1]

A second approach is to allow one house, usually the more numerous one, to carry the day in the event of conflict. Since the Parliament Act 1911, Britain's unelected House of Lords has only inconsequential delaying powers which it seldom considers it worthwhile to use. The United Kingdom thus effectively has a unicameral parliament.

A third solution, and the most democratic one, is to provide that after two or more rejections by the upper house, the disputed bill is submitted to a referendum, giving the people as a whole the final say on whether it should become law. This approach was advocated at the 1897 federal convention. It was later adopted by Queensland when that state still had a bicameral legislature,[2] and in a modified form by New South Wales, where it still applies.[3]

After extensive debate, the Founders of our federation eventually opted for a fourth way which combined aspects of the United States and British systems. At the time it was considered highly innovative. While not giving the House of Representatives the final say, s 57 of the Constitution does yield the lower house an advantage if the deadlock-breaking procedure is pursued to its conclusion, the joint sitting of both houses. The two to one ratio of representatives to senators established by s 24[4] means that when the two chambers sit together, the more numerous lower house representatives are more likely to have a majority, especially as large majorities are rare under the Senate's proportional representation system. The lower house also enjoys the advantage that only bills originating in the House of Representatives can trigger the s 57 mechanism. On the other hand, s 57 creates a protracted, multi-stage process which is designedly not easy to trigger (partly because it is the only way in which the Senate, otherwise a continuing body, can be dissolved). This is intended to encourage negotiation and compromise of the kind relied on in the United States and Canada.

The wording of s 57 has been criticized as imprecise, but while uncertainties do remain, the essentials of the mechanism were clarified in a trio of High Court cases that arose under the Whitlam government.

One potentially important limitation of the s 57 system should be noted at the outset: it applies only to Acts, not to regulations or other subordinate legislation. This means that the Senate's power to disallow regulations is absolute. A government wishing to use s 57 to enact its legislative program must ensure that bills are worded in such a way as not to depend for their efficacy on the making of regulations that might be disallowed by a hostile Senate. That was the rock that sank the Hawke government's ID card legislation after a double dissolution election had been held and a joint sitting was in preparation.[5]

The High Court's role

Traditionally the courts consider the internal proceedings of parliament to be non-justiciable and will not intervene to ensure compliance with standing orders or similar rules. But because s 57 establishes a special law-making procedure with specific requirements, the High Court takes the view that it has the right and the duty to intervene if those requirements have not been met. It may do so at any stage, but will not examine the course of the s 57 process before a proposed law is passed by a joint sitting, in any case where the proposed law can be declared invalid if s 57 has not been complied with.[6] As that will usually be possible, judicial intervention before the formal enactment of a law will be rare.[7]

On the other hand, even if the requirements of s 57 have not been complied with, the double dissolution, the subsequent election and any other legislation passed by the new parliament will not be declared invalid.[8] It is only the particular Act or Acts passed by the joint sitting that will be nullified. Further, the Governor-General's exercise of any discretionary powers under s 57 is non-justiciable.[9]

Steps in the s57 Procedure[10]

1. The House of Representatives passes a proposed law.

At one time it was thought that the deadlock procedure could only be activated when the governmental system was being prevented from working properly, such as when an appropriation bill was held up. It is now accepted, however, that it can be invoked in the case of any proposed law.[11]

2. The Senate (a) rejects or (b) fails to pass the proposed law or (c) passes it with amendments to which the Representatives will not agree.

Of the three terms describing negative action by the Senate, "rejects" is the clearest and describes at least the standard situation of a motion to pass the bill being lost. "Fails to pass" is broader and more uncertain, as it describes an omission. The High Court has interpreted it in the context of the normal pattern of parliamentary deliberation, so that an adjournment for the usual Christmas-New Year break will not satisfy the language of s 57, nor, by itself, would referring the bill to a select committee. The Senate must be allowed adequate time for deliberation and debate.[12] But a resolution postponing the bill's second reading for six months would qualify as a failure to pass. Under Senate standing orders that is a traditional way of rejecting a bill and has the effect of finally disposing of it.[13]

Whether the Senate has failed to pass a bill thus involves examining its overall treatment of the bill. Justice Stephen in PMA stated that "No conclusive test can be devised which, by its application, in all circumstances will provide a ready answer to the question whether in any particular instance parliamentary conduct involves a failure to pass for the purposes of s. 57 ... [T]he methods that may be adopted are various and may involve no more than the excessive use of otherwise appropriate and usual parliamentary procedures, filibustering provides an example; thus it may not be the character of the particular parliamentary conduct but rather its excessive employment that may identify it as a failure to pass".

The question is whether there has been "a calculated use of parliamentary procedures with a view to delay". That involves considering, among other things, "the importance, complexity and, perhaps, novelty of the measure in question".[14] (Genuine urgency could also be relevant.) The same procedural step could be regarded as a failure to pass, or not, depending on the Senate's entire conduct in relation to the bill, Chief Justice Barwick explained in the same case. Referring a bill to a select committee was considered mere prevarication in 1951, but in different circumstances it might not be.

"But it will be the conduct of the Senate itself", Barwick added, "and not the conduct or opinions or anticipatory statements of individual Senators, whatever may be their party standing or party authority, which can have any relevance to the question". The Court will look only at the action or inaction of the Senate as a body.[15]

The third possibility, "pass[ing] it with amendments to which the House of Representatives will not agree", has not so far presented any problems. It might, though, if the Senate were to pass a bill so heavily amended that it could not be regarded as an altered version of the original but constituted different bill altogether.[16]

3. There is an interval of three months.

The three-month interval is designed as a cooling-off period to allow for second thoughts on both sides and for enabling public opinion to come to bear on the issue.

The three-month period is calculated, not from when the House of Representatives passed the bill, but from the time of the Senate's negative action, whether rejection, failure to pass, or passing with amendments with which the Representatives will not agree.[17] The clock stops when the House of Representatives passes the bill a second time.

4. The House of Representatives, in the same or the next session, again passes the proposed law, with or without any Senate amendments.

For practical purposes we can ignore the reference to "the same or the next session". In the 1920s federal parliament abandoned the practice of having annual sessions that end with prorogation. The practice now is to have a single session that lasts for the three-year term of the House of Representatives. It is broken into sittings that are ended by adjournment, not by prorogation.[18]

It is essential that the proposed law passed a second time by the House of Representatives should be identical with the one previously rejected by the Senate, except for any amendments made by the Senate. The House of Representatives cannot amend it in any way.

This requirement did not attract much attention until the 1980s, because in previous s 57 processes the government's real aim was to secure a double dissolution, and the details of the bills used were of secondary importance.

Then in 1982 a sales tax bill had to be resubmitted to the Senate with a built-in commencement date that had already passed because the date could not be amended in the lower house without destroying the bill's value as a double dissolution trigger.[19] Similar considerations led the Hawke government in 1987 to drop some proposed amendments when it introduced its ID card legislation for the second time.[20]

Although the requirement of identical bills has never squarely arisen before the High Court, it was alluded to by Justice Gibbs in the Territorial Senators case[21] and is accepted by all commentators.[22] There is still a possible question, however, as to whether literal identity between the two bills is enough. It could happen, for example, that the second bill, though in terms the same as the first, could have a substantially different operation because of some intervening event, such as the repeal of other legislation on which the effect of the first bill depended.[23] Would the altered operation of the second bill mean it was no longer the same proposed law? Governments seeking to use s 57 will need to keep that possible issue in mind.

5. The Senate again rejects or fails to pass the proposed law, or passes it with amendments to which the House of Representatives will not agree.

It becomes necessary again to identify the point at which the Senate defeats the bill, not for the purpose of measuring a three-month period as in the first instance, but because that is the point at which the Governor-General's power to dissolve both chambers arises.[24] This could present the same problems of identification as the criteria of rejection raised at the first stage.

It is clear, though, that several bills can be dealt with simultaneously; there is no need to go through the same process separately for each one. "One instance of double rejection suffices" Justice Stephen pointed out in Cormack v Cope, "but if there be more than one it merely means that there is a multiplicity of grounds for a double dissolution, rather than grounds for a multiplicity of double dissolutions".[25]

Nor does there appear to be a limit to the number of bills - in November 1975, 21 bills had worked their way through the s 57 process. The High Court has acknowledged that these interpretations make considerable inroads into the basic concept of the Constitution which provides for a bicameral parliament, but considers that reading limitations of that kind into s 57 would involve a strained and unwarranted construction.[26]

Once the bills have complied with the steps outlined so far, they can be used at any time to bring on a double dissolution. There is no need for a current deadlock or dispute over them. In Territorial Senators, the High Court held that no disqualification for "undue delay" could be implied in s 57. Justice Gibbs explained the point in this way: "If ... the House of Representatives has twice passed a proposed law and the Senate has twice rejected it, it is apparent that the two Houses are in disagreement on the question whether that proposed law should be passed, and it is not correct to say that they have ceased to disagree simply because some time elapses during which no action is taken to resolve the disagreement".[27]

The only time limit is the express one, that a double dissolution cannot be granted if the House of Representatives term has less than six months to run. Subject to that, any number of bills can be "stockpiled". Nevertheless, it is customary for prime ministers in their request to the Governor-General for simultaneous dissolutions to stress the special importance of the legislation and the unworkability of the parliament with the current party numbers.[28]

6. The Governor-General simultaneously dissolves the Senate and the lower house.

It is not clear whether the Governor-General has any independent discretion in relation to the exercise of the power in s 57. Two of the Justices in Territorial Senators thought the power had to be exercised in accordance with the advice of the Federal Executive Council,[29] meaning in practice the prime minister. But the lack of any reference to the Council in s 57, together with the use of the verb "may", rather suggests the opposite. Certainly, Justice Stephen, when he became Governor-General, took the view in relation to the 1983 and 1987 double dissolutions that he had an independent discretion and that the government had to make out some sort of case.[30]

At all events, in practice all six requests for double dissolutions made to date have been granted.

7. A general election for both houses takes place.

If the government is defeated at the election, the question lapses. If it is re-elected with control of the Senate, s 57 becomes irrelevant. If it still lacks that control, the proposed law or laws proceed to the next stage.

8. The newly-elected House of Representatives passes the proposed law, with or without any Senate amendments.

9. The newly-elected Senate rejects or fails to pass the proposed law, or passes it with amendments to which the House of Representatives will not agree.

The lower house's rejection of the Senate's amendments will need to be evidenced by a resolution of some kind; a mere statement to that effect by the prime minister will not be enough.[31]

10. The Governor-General convenes a joint sitting of the two houses.

Only one joint sitting has so far been held, and that was the 1974 one, which was challenged in Cormack, Territorial Senators and PMA. The Governor-General's decision to convene a joint sitting has so far been made on the advice of the prime minister (nominally the Federal Executive Council),[32] though the same argument can be made for the existence of an independent discretion as in the case of the dissolution of both houses. It is hard, however, to imagine how a Governor-General could justify denying a joint sitting if the legal prerequisites had been met.

The Governor-General has no power to proclaim what is to be voted on at the joint sitting or otherwise to control its agenda. In calling the 1974 joint sitting the Governor-General erred in that respect, but the defect was held not to have affected the proclamation's validity.[33]

11. The members of the Senate and the house of Representatives at the joint sitting deliberate and vote together on the proposed law as last proposed by the Representatives, and any amendments; if the proposed law with amendments is affirmed by an absolute majority of the total membership, it is taken to have been duly passed by both houses.

The most difficult problem at this stage relates to the amendments that may be put to the vote at the joint sitting. The section in terms requires the joint sitting to vote on the bill "and upon amendments, if any, which have been made therein by one House and not agreed to by the other". There are several views as to what that might mean:

(i) One view is that any amendment by either house proposed at any stage can be put to the joint sitting. This broad interpretation is open to the objection that it seriously weakens the position of the less numerous Senate.[34]

(ii) A second possibility is that the House of Representatives could amend the bill during the period following its third Senate rejection but before the joint sitting. This is thought to be inconsistent with the requirement that the bill maintain its identity throughout the process.[35]

(iii) Thirdly, the clause could mean that the House of Representatives is able to propose amendments during the third passage of the bill, and those amendments may be put to the joint sitting.[36] This is perhaps the view most likely to commend itself to the present High Court, as it gives the language of s 57 full operation according to its tenor while allowing the Senate a proper opportunity to consider in the normal way a serious list of government amendments, excluding possible wildcat proposals floated for a variety of reasons at earlier stages.

The bill and amendments will pass if they are supported by an absolute majority, that is, a majority of the total number of representatives and Senators entitled to vote, whether actually present and voting or not.

12. The proposed law is then presented to the Governor-General for assent.

This completes the process. The bill has now become law.

Conclusion

The machinery established by s 57 has proved to be a workable means of resolving deadlocks between the two houses of federal parliament. Some argue that it has never been used, and is never likely to be used, as a means of solving a dispute over specific legislation, but as a means of obtaining an early election.[37] But as some politicians now realize, the voters resent the blatant manipulation involved in early elections and are liable to punish an opportunist government that seeks an advantage in that way. Today a government is more likely to have the genuine goal of overcoming what it sees as Senate obstructionism.

The High Court's interpretation of s 57 has had the effect of making the section somewhat easier to invoke than it was earlier believed to be. While that can be seen as making the Senate more accountable for its actions,[38] it has also given governments what amounts to a de facto power to dissolve the Senate, a power they were never meant to have. That in turn has increased the executive's control over parliament,[39] a control that has made the concept of "responsible government" into a legal fiction. All things considered, the referendum option canvassed at the 1897.[40]

Steps in the s 57 Process

1. The House of Representatives passes a proposed law.

2. The Senate (a) rejects or (b) fails to pass the proposed law or (c) passes it with amendments to which the Representatives will not agree.

3. There is an interval of three months.

4. The House of Representatives, in the same or the next session, again passes the proposed law, with or without any Senate amendments.

5. The Senate again rejects or fails to pass the proposed law, or passes it with amendments to which the House of Representatives will not agree.

6. The Governor-General simultaneously dissolves the Senate and the lower house - no later than 6 months before the expiry of the House of Representatives' term.

7. A general election for both houses takes place.

8. The newly-elected House of Representatives passes the proposed law, with or without any Senate amendments.

9. The newly-elected Senate rejects or fails to pass the proposed law, or passes it with amendments to which the House of Representatives will not agree.

10. The Governor-General convenes a joint sitting of the two houses.

11. The members of the Senate and the House of Representatives at the joint sitting deliberate and vote together on the proposed law as last proposed by the Representatives, and any amendments; if the proposed law with amendments is affirmed by an absolute majority of the total membership, it is taken to have been duly passed by both houses.

12. The proposed law is then presented to the Governor-General for assent.

Notes

[1] Brian Galligan, "Federal Renewal, Tax Reform and the States" (1998) 10 Upholding the Australian Constitution 221, 237-38.

[2] Parliamentary Bills Referendum Act 1908 (Qld., repealed).

[3] Constitution Act 1902 (NSW) s 5B.

[4] By statute, Territory senators are not counted in the calculation of the two to one ratio.

[5] G.F. Carney, "Section 57 of the Constitution - the Sixth Double Dissolution" (1989) 18 Fed. L. Rev. 178, 179.

[6] Cormack v Cope (1974) 131 CLR 432, 452-54, 464-65, 466-67; Victoria v Commonwealth (Petroleum and Minerals Authority ("PMA") Case) (1975) 134 CLR 81, 118-20, 156-57, 163-64, 178-80, 183-84; Odgers' Australian Senate Practice, Harry Evans ed., Department of the Senate, Canberra, 10th edn. 2001, 86.

[7] S. Ratnapala, Australian Constitutional Law: Foundations and Theory, Oxford University Press, South Melbourne 2002, 62.

[8] PMA case, 134 CLR at 120, 157, 178, 184; Ratnapala, n 7 above, 66.

[9] P.H. Lane, Lane's Commentary on the Australian Constitution, 2nd edn., LBC, Sydney 1997, 408; Ratnapala, n 7 above, 62.

[10] 19 Laws of Australia, LBC, Sydney, 19-20.

[11] Odgers, n 6 above, 84-85; G. Moens, J. Trone, Lumb and Moens's Annotated Constitution of the Commonwealth of Australia, 6th edn., Butterworths, Chatswood NSW 2001, 204.

[12] PMA case, 134 CLR at 124, 154-55, 170, 187; Lumb and Monens, n 11 above, 204.

[13] PMA , 134 CLR at 116, 121, 145.

[14] PMA, 134 CLR at 171-72.

[15] PMA, 134 CLR at 122, 150-52.

[16] Colin Howard, Australian Federal Constitutional Law, 3rd edn., Law Book Co, North Ryde NSW 1985, 101.

[17] PMA case, 134 CLR at 124, 154-55, 170, 187.

[18] Odgers, n 6 above, 167-68.

[19] Carney, n 5 above, 182.

[20] Id., 178-79.

[21] Western Australia v Commonwealth (Territorial Senators case) (1975) 134 CLR 201, 237.

[22] Carney, n 5 above, 180.

[23] C.K. Comans, "Constitution, s 57 - Further Questions" (1985) 15 Fed. L. Rev. 241.

[24] Howard, n 16 above, 106.

[25] Cormack v Cope, 131 CLR at 469; see also 456, 463-64, 468, 474.

[26] Cormack, 131 CLR at 456; Territorial Senators, 134 CLR at 251.

[27] 134 CLR at 236, see also 265; but see Stephen J's qualification at 261.

[28] Odgers, n 6 above, 84-85.

[29] 134 CLR at 278, 293; see Ratnapala, n 7 above, 64.

[30] Peter Hanks, Constitutional Law in Australia 2nd edn., Butterworths, North Ryde NSW 1996, 126; Lane, n 9 above, 409.

[31] Cf. Odgers, n 6 above, 87; Howard, n 16 above, 104.

[32] Howard, n 16 above, 108.

[33] Cormack, 131 CLR at 458-59, 462-63, 468, 471.

[34] Carney, n 5 above, 184.

[35] Ibid.

[36] Ibid.

[37] Id., 186.

[38] Howard, n 16 above, 106.

[39] Odgers n 6 above, 117; cf. Ratnapala, n 7 above, 62-63.

[40] Odgers, n 6 above, 117.