(b) dissolution of the House
As has already been noted, Senate standing committees are empowered to meet during recess, and this includes the period of a dissolution of the House of Representatives. The empowering provisions for some committees explicitly refer to the period of a dissolution of the House. This form of words was first adopted in 1973 in respect of the legislative and general purpose standing committees, to make it clear that “recess” includes a period of dissolution of the House. This positive assertion by the Senate of the right to have its committees meet during the period of a dissolution of the House reflected a need for the newly-expanded committee system of the Senate to continue to function in an election period.
In the 1970s the standing committees frequently held meetings, including public hearings, after the dissolution of the House of Representatives.
On 19 October 1984 Senator Tate, the Chairman of the Senate Select Committee on Allegations Concerning a Judge, tabled papers relating to the power of the Senate or its committees to meet after a dissolution of the House of Representatives or a prorogation of the Parliament, and the publication of a committee report when the Senate is not sitting. The circumstances were that the dissolution of the House of Representatives was scheduled for 26 October 1984 and the committee’s report was not expected to be completed by that date. The papers tabled on 19 October 1984 (J.1270) were:
In the matter of the Power of the Senate or its Committees to sit after Dissolution or Prorogation — Opinion by the Solicitor-General, Dr G. Griffith, dated 9 October 1984.
The Power of the Senate or its Committees to meet after a Dissolution of the House of Representatives or a Prorogation of the Parliament, and the publication of a Committee Report when the Senate is not sitting — Paper by the Clerk-Assistant (Committees), Mr Harry Evans.
Attached to the documents was a brief summary of the opinions, which read:
SUMMARY OF PAPERS
1. Opinion dated 9 October 1984 of the Solicitor-General:
This opinion concludes that —
(a) the Senate may not meet after a prorogation, which has the effect of terminating a session and preventing Parliament, as an organic whole, from functioning;
(b) the Senate likewise may not meet after a dissolution of the House of Representatives, which also has the effect of preventing the Parliament from functioning;
but concludes that —
(c) the Senate has the power to authorise its committees to meet after a prorogation or dissolution of the House of Representatives, because this is one of the powers of the House of Commons adhering to the Senate by virtue of section 49 of the Constitution.
2. Paper dated 18 October 1984 by Mr Harry Evans, the Clerk-Assistant (Committees):
This paper concludes that —
(a) it is wrong to equate a dissolution of the House of Representatives with a prorogation, and the Senate and its committees may meet after a such dissolution;
(b) in any case, the Senate and its committees may meet after a prorogation;
(c) it is not tenable to maintain that the Senate committees may meet during a period during which it is claimed that the Senate may not meet: if Senate committees may meet after prorogation, the Senate also may meet; and
(d) the Senate may authorise, in advance of their receipt, the publication with absolute privilege of reports of its committees, because —
(i) this is in accordance with the Parliamentary Papers Act; and
(ii) the power to authorise the publication of any document with absolute privilege is one of the powers of the House of Commons adhering to the Senate by virtue of section 49 of the Constitution.
Each of these documents supported the conclusion that the publication of the report of the Select Committee on Allegations Concerning a Judge in accordance with the resolution appointing the committee would be absolutely privileged. The report was subsequently published and there was no challenge of any sort to its absolutely privileged nature.
Following the tabling of the papers, Senator Georges requested the tabling by the President of any further opinions received on this matter, either by the President or by any other committee of the Senate. In response to the request, the President (Senator Douglas McClelland) tabled the following papers (22/10/1984, J.1275):
Senate and its Committees: — Powers to meet after prorogation or dissolution —
Letter from the Attorney-General (Senator Greenwood) to the President of the Senate (Senator Cormack), dated 24 October 1972. Opinion concludes that Senate committees cannot lawfully continue to meet and transact business during the period from a dissolution of the House of Representatives to the re-assembly of Parliament in the next session. Also clear, in the Attorney’s view, that the Senate itself cannot sit during that period.
Opinion by Mr R.J. Ellicott, when Commonwealth Solicitor-General. Opinion concludes that, on dissolution by proclamation of the House of Representatives, neither the Senate nor its committees have power to meet until Parliament is called together following the general election.
Opinion by Professor Colin Howard, University of Melbourne, dated March 1973. General conclusion that the Senate and its committees may sit and function during the period from a dissolution of the House of Representatives to the meeting of Parliament in the next session and during periods of prorogation of Parliament.
Opinion by Professor G Sawer, Australian National University, dated approximately 1969. Opinion contends that once the House of Representatives is dissolved under section 5 of the Constitution, the “Parliament” ceases to exist and so does the possibility of the Senate continuing to function as an independent and separate entity until a “Parliament” is again in session pursuant to the appointment of a time by the Governor-General under section 5.
On the next sitting day, 22 October 1984, the Deputy Leader of the Opposition in the Senate (Senator Durack) moved:
That the Senate declares that where the Senate, or a committee of the Senate which is empowered to do so, meets following a dissolution of the House of Representatives and prior to the next meeting of that House, the powers, privileges and immunities of the Senate, of its members and of its committees, as provided by section 49 of the Constitution, are in force in respect of such meeting and all proceedings thereof. (22/10/1984, J.1276)
The motion was agreed to after debate, and without division (SD, 22/10/1984, p. 2129-36). The Attorney-General (Senator Gareth Evans) argued that there were very strong legal doubts whether the Senate can in fact meet after a dissolution of the House of Representatives and continue, while so meeting, to enjoy the powers, privileges and protections normally available to it.
The Senate did not meet following the dissolution of the House of Representatives on 26 October 1984 but between that time and the opening of the next session of Parliament on 21 February 1985, there were private meetings and public hearings of several Senate committees.
Since that time the Senate has not met after a dissolution of the House, but Senate committees have regularly done so for the purposes of private meetings and public hearings.
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