As mentioned in Chapter 7, the generally accepted view is that a prorogation, as well as terminating a session, prevents the Houses of Parliament meeting until they are summoned to meet by the Governor-General under section 5 of the Constitution, or they meet in accordance with the proclamation of prorogation. According to this view, orders and resolutions which are not of continuing effect cease to have force and all business on the Notice Paper lapses and must be recommenced in the new session. Standing order 136 provides that bills which have lapsed as result of a prorogation may be revived in the following session provided that a periodical election for the Senate or general election for either House has not taken place between the two sessions (see Chapter 12, Legislation, Revival of bills).
While the Senate has not met at any time during which the House of Representatives was dissolved nor in the recess following a prorogation, Senate committees have often done so. The standing orders empower most standing committees of the Senate to meet during recess and some of the relevant provisions refer explicitly to the period of a dissolution of the House of Representatives. It is usual for Senate select committees to be given power to meet during recess and following dissolution of the House.
The Senate has asserted since 1901 the right to empower committees to meet during the recess which follows a prorogation. On 6 June 1901 (J.25) the standing orders of the South Australian House of Assembly were adopted by the Senate on a temporary basis until it had drafted its own. These standing orders contained no specific mention of this matter but it appears to have been the practice for sessional committees of the Assembly that “deal with matters which require attention during the Recess” to be “appointed to act during the Recess” (E.G. Blackmore, Manual of the Practice, Procedure, and Usage of the House of Assembly of the Province of South Australia, Adelaide, 1885, p. 88). Accordingly, on 6 June 1901 the Senate resolved to appoint a Library and a House Committee with the “power to act in the recess” (J.26). The Senate’s own standing orders, adopted in 1903, provided the Library, Standing Orders and House Committees with “power to act during Recess”. The standing orders continued to grant these committees, and certain others, power to act during recess. Upon its establishment in 1932 the Standing Committee on Regulations and Ordinances was also given this power.
The power of the Senate to authorise committees to meet during recess may be regarded as deriving from section 49 of the Constitution, which provides that the powers, privileges and immunities each House, its members and committees shall, until Parliament declares otherwise, be those of the House of Commons in 1901. In an opinion dated 9 October 1984 and tabled in the Senate on 19 October, the Solicitor-General concluded that the “House of Commons in 1901 was empowered to authorise its committees to sit during a period of its prorogation”. This and related opinions are further considered below. Procedural matters concerning committees fall within the scope of section 50(ii), which empowers each House to make rules and orders with respect to “The order and conduct of its business and proceedings either separately or jointly with the other House”. Opinion is divided as to whether this section also empowers the Senate to authorise committees to sit during recess. See, for example, the opinion by Professor Colin Howard, dated March 1973, and that of the Solicitor-General, dated 9 October 1984, referred to below.
In 1957 the Joint Committee on Constitutional Review, at the request of the Senate, was given power to sit during recess. The Leader of the House of Representatives, Mr Harold Holt, stated that the government had decided that:
... henceforth we shall have a session of the Parliament annually, and it being the desire, I think, of all members of the Parliament that committees such as the Constitutional Review Committee, which has a valuable public service to perform, should continue to function in any period of recess between the prorogation of one session of the Parliament and the formal opening of another, there is sound practical sense in the suggestion that these committees be enabled to continue during any such recess.
The minister observed that while committees of the House of Commons ceased to exist following prorogation, the situation in Australia required a different approach:
Although we follow quite regularly the rulings and practices of the House of Commons where they appear to accord with the needs of our situation in Australia, each Parliament, of course, has its own way to make and its own problems to resolve. ... We live in a practical and swiftly moving world, and although the prorogation may legally bring to an end a session of the Parliament, it is assumed that if we are to have a session annually the Parliament will go on and resume in a new session shortly after the New Year according to the kind of program that I outlined last week. (HRD, 28/3/1957, pp 339-40.)
The House’s accession to the Senate’s request that the joint committee be granted power to meet during recess was in accordance with the spirit of the standing orders of the House of Representatives which provide certain standing committees of that House with such power.
The seven legislative and general purpose standing committees appointed by the Senate for the first time on 11 June 1970 were empowered by resolution “to meet and transact business in public or private session and notwithstanding any prorogation of the Parliament” (11/6/1970, J.187). By then there was no doubt about the ability of the Senate to make such a provision. Senate committees have since then regularly met during prorogations, for private meetings and public hearings.
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