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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