Posted 23/03/2016 by Damon Muller
Why are we talking about proroguing Parliament?
On 21 March 2016 the Prime Minister wrote to the Governor-General to ask the Governor-General to prorogue Parliament on Friday 15 April and summon Parliament to sit again on Monday 18 April 2016.
The Prime Minister stated that the reason for recalling Parliament was to consider two sets of legislation:
The Prime Minister stated that it was the Government’s preference to have the Bills passed ‘rather than invoke the s. 57 procedure [of the Constitution]’ – that is, to dissolve both Houses of Parliament and hold a double dissolution election. The implications of a double dissolution election are discussed in more detail in a previous FlagPost.
What does it mean to ‘prorogue’ the parliament?
Proroguing a Parliament essentially terminates the current session of Parliament. Unlike dissolving a Parliament it does not necessarily lead to an election; after proroguing, a Parliament can be recalled to sit again.
The ability to prorogue the Parliament is a power given to the Governor-General under Section 5 of the Constitution.
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.
Chapter 7 of Odgers’ Senate Practice (Odgers) sums up the difference between a Parliament, a term of Parliament, and a session of Parliament:
A new Parliament begins with the opening by the Governor-General on the first day the two Houses meet after a general election for the House of Representatives or for both Houses. The parliamentary term continues for three years after the date of the first sitting of the Houses, unless it is ended earlier by the dissolution of the House of Representatives or by the simultaneous dissolution of both Houses.
Within the term of each Parliament, there may be sessions. A new session is also opened by the Governor-General and begins on the first day of sitting following a prorogation of Parliament. To prorogue Parliament means to bring to an end a session of Parliament without dissolving the House of Representatives or both Houses, and, therefore, without a subsequent election. Prorogation has the effect of terminating all business pending before the Houses and Parliament does not meet again until the date specified in the proroguing proclamation or until the Houses are summoned to meet again by the Governor-General.
What does it mean to ‘terminate all business’?
All business on the Senate Notice Paper lapses, but that does not preclude the possibility of a lapsed item being reintroduced onto the Notice Paper under certain conditions. According to Odgers:
A bill which has lapsed because of a prorogation of the Parliament before it has been finally passed by the Senate may be revived in the following session, subject to certain limitations.
If a bill has been referred to a committee at the time of prorogation, and the committee is empowered to meet after a prorogation the committee may report on the bill, but the bill has to be revived by the Senate before it can proceed.
If a bill which has originated in the Senate was still in the Senate or a Senate committee at the time of prorogation the Senate may restore the bill to the Notice Paper and resume consideration of it at the stage it had reached at that time. If such a bill has been sent to the House of Representatives, the Senate may send a message to the House asking the House to resume consideration of the bill.
A bill which has been received from the House of Representatives may be restored to the Notice Paper, provided that a message is received from the House asking the Senate to resume consideration of the bill.
These procedures ensure that a bill is not revived except on the initiative of the House in which the bill originated.
House of Representatives Practice states:
All proceedings come to an end—that is, all business on the Notice Paper lapses. Provision exists for the resumption in a new session, under certain conditions, of proceedings on bills which lapse by reason of prorogation
What happens to Committees?
Practice differs between the committees of the House of Representatives, committees of the Senate, and joint committees.
House of Representatives committees generally continue to exist following a prorogation, but do not meet (except as noted below). House of Representatives Practice states:
Committees of the House and joint committees appointed by standing order or by resolution for the life of the Parliament continue in existence but may not meet and transact business following prorogation. Committees whose tenure is on a sessional basis cease to exist. Statutory committees continue in existence and may meet and transact business if, as is the normal practice, the Act under which they are appointed so provides.
Senate committees may continue to operate and meet following a prorogation. This is due to the Senate’s status as a continuing House, and due to resolutions or Standing Orders that allow for their continuation. According to Odgers:
Most Senate committees are empowered to continue their operations regardless of the prorogation of the Parliament or the dissolution of the House of Representatives, either of which occurrences terminates a session of Parliament. Committees formed for the life of a parliament continue in existence until the day before the next Parliament first meets.
On many occasions, Senate committees have continued their activities after the dissolution of the House of Representatives or prorogation of Parliament, including by taking evidence and presenting reports. The absolute privilege of these activities has not been called into question and the practice is now firmly entrenched in standing orders as well as being confirmed by declaratory resolution. The power of the Senate to authorise its committees to meet derives from the Senate’s character as a continuing House and from the Constitution.
Is it unusual to prorogue the parliament?
Yes and no. In recent times it has been unusual to hold multiple sessions in the one parliament, although it was common in the 1960s and earlier.
The last time Parliament was prorogued and then brought back before an election was the Thirtieth Parliament in 1977. Parliament was prorogued in 1977 to allow the Queen to open Parliament.
Since the Thirty-Sixth Parliament it has been the practice to prorogue parliament before dissolving it.
According to Odgers:
Although Parliament was regularly prorogued in the past, it has been prorogued without an accompanying dissolution on only four occasions since 1961. Two of these, in 1974 and 1977, were for the purpose of allowing openings of Parliament by the monarch during visits to Australia. On another occasion, in February 1968, Parliament was prorogued following the disappearance in the sea of Prime Minister Harold Holt in December 1967. On the fourth occasion, Parliament met for one day in November 1969 following an election for the House of Representatives on 25 October and was prorogued until the following March.
Proroguing the Parliament with the express aim of recalling the Senate to consider legislation is unusual. However, it is within the powers of the Governor-General under Section 5 of the Constitution.
House of Representatives Practice states that 'in practice however these vice-regal prerogatives are exercised with the advice of the Executive Government.'
It further states:
There is little guidance afforded by the constitutional provisions or conventions as to when or how often prorogation should take place or any established criteria regarding the taking of a decision to prorogue. While section 5 of the Constitution gives the Governor-General authority to prorogue the Parliament, the decision to prorogue follows the advice of the Government of the day.
How long is the Parliament prorogued for?
There is little direction on how long Parliament should be prorogued for, however House of Representatives Practice states that 'the recess involved need only be very short, for example, over a weekend.'
Can the Senate choose not to sit after being recalled?
Once a session of the Senate has been opened, the Senate can determine its own sittings and can be adjourned by its own resolution. Once the session has been opened the Senate has the power to adjourn until some time in the future should the majority of Senators choose to.
What if the Senate does not pass the bills, but also does not reject them?
The section 57 provisions apply if the Senate ‘rejects or fails to pass’ a Bill. The exact definition of ‘fails to pass’ is subject to some debate, and well beyond the scope of this post. However, it is discussed in some detail in Chapter 21 of Odgers. Strategies which are discussed in that chapter that have been considered in the past as potentially, but not necessarily definitely, constituting failure to pass include:
- Referring the Bill to a committee,
- Repeatedly adjourning the debate, and/or
- Filibustering the Bill.
What happens if the Senate amends the Bills that are potential double dissolution triggers?
The provisions relating to disagreements between the houses in the Constitution (Section 57) note that the Senate passing amendments to the legislation to which the House of Representatives does not agree is treated the same as failing to pass the legislation or rejecting it. As such, if the Senate amends any of these Bills the House of Representatives could conceivably reject those amendments, thus confirming the pieces of legislation as double dissolution triggers.
Note, however, that Odgers cautions that ‘a disagreement between the Houses over amendments probably requires more than a single rejection of Senate amendments by the government to satisfy the requirements of section 57’.
Can the Senate debate any other Bills when recalled?
The Prime Minister in his correspondence to the Governor-General stated ‘if time permits, the Government might use the additional sitting days to consider other legislation’.
The Senate is not able to revive Bills that have originated in the House without a request from the House, but is able to revive and consider Bills that originated in the Senate (most of which are Private Senators Bills). There is no limitation on the Senate introducing new Bills and debating them. The Senate may also add any other business it wishes to address, such as motions, orders and committee business.
The Senate determines the order and conduct of its own business (see s 50(ii) of the Constitution) and disagreements are ultimately resolved by way of majority votes. The government does not currently control a majority in the Senate in its own right.
Further details
Further details can be found in the Senate's Procedural Information Bulletin No.303: Prorogation and a new session of Parliament.