Meetings after prorogation or dissolution of House
Under section 5 of the Constitution, the Governor-General may by proclamation prorogue the Parliament. Prorogation, on the conventional interpretation, has the effect of terminating a session of Parliament until the date specified in the proclamation or until the Houses are summoned to meet again by the Governor-General, and of terminating all business pending before the Houses.
Prorogation is regarded as dispensing with sittings of the Senate which have been fixed by order of the Senate. Orders of the Senate setting its sitting days are regarded as operating only so long as the parliamentary session continues and as having no effect if a prorogation intervenes, unless express provision is made for sittings after prorogation (see below). Similarly, orders of the Senate directing committees to meet, for example, for estimates hearings, do not operate if a prorogation intervenes. Most committees have the power to meet after a prorogation and could meet if they choose to do so.
The Senate has not met after a prorogation and before the opening of the next session by the Governor-General. The question of whether it could do so has been the subject of differing opinions. These were contained in documents presented to the Senate on 19 and 22 October 1984. The documents were:
- Letter from the Attorney-General (Senator Greenwood) to the President of the Senate (Senator Cormack), 24 October 1972.
- Opinion by Mr R.J. Ellicott, when Solicitor-General.
- Opinion by Professor C. Howard, University of Melbourne, March 1973.
- Opinion by Professor G. Sawer, Australian National University.
- 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, 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 Senate Clerk-Assistant (Committees), Mr H. Evans, 18 October 1984.
The generally accepted view is that a prorogation, as well as terminating a session and pending business, prevents the Houses of the Parliament meeting until they are summoned to meet by the Governor-General or they meet in accordance with the proclamation of prorogation. The opinion of Professor Howard, however, is that a prorogation does not prevent the Senate meeting. The basis of this view is that, while a prorogation prevents the Parliament as a whole meeting for legislative purposes, under Australia’s constitutional arrangements the Senate may meet to transact its own business as it chooses.
The provisions in standing order 55, relating to the calling of the Senate to meet at the request of an absolute majority of senators, apply only to periods when the Senate is adjourned, as their history and their context in the standing orders indicate.
A prorogation does not, however, prevent Senate committees meeting if they are authorised by the Senate to do so. It may appear paradoxical that the Senate may authorise its committees to do what it cannot do itself, but the generally accepted view is that this is one of the powers of the Senate under section 49 of the Constitution. Most Senate committees are empowered by the Senate to meet after a prorogation.
Under section 5 of the Constitution, the Governor-General may also by proclamation dissolve the House of Representatives.
Before 1928 it was the practice to prorogue the Parliament prior to a dissolution of the House of Representatives. This is also the practice in the United Kingdom. From 1928 to 1993 dissolutions of the House of Representatives occurred without a preceding prorogation. Due to an error in the wording of the dissolution proclamation, which arose from a misunderstanding of the procedures, the dissolution proclamations during that period included a phrase purporting to discharge senators from attendance, a phrase without any constitutional basis. The matter was the subject of correspondence between the Clerk of the Senate and the Official Secretary to the Governor-General, which was tabled in the Senate on 14 August 1991. At the 1993 general election the practice of proroguing the Parliament before a dissolution of the House of Representatives was restored.
The question arises whether the Senate may meet after a dissolution of the House of Representatives in the absence of a prorogation of Parliament. This question was also the subject of the various opinions tabled in the Senate on 19 and 22 October 1984. The government’s legal advisers attempted to argue that the inclusion in a dissolution proclamation of the phrase purporting to discharge senators from attendance was the equivalent of a prorogation, ignoring the fact that that phrase was an error arising from confusion about the wording of previous proclamations. The Senate, however, concluded that there is nothing to prevent it meeting after a dissolution of the House of Representatives. A resolution was passed on 22 October 1984, in effect asserting the Senate’s right to meet at that time. The resolution declared that, should the Senate meet after a dissolution of the House, the powers, privileges and immunities of the Senate under section 49 of the Constitution would be in force in respect of that meeting. The resolution also asserted the right of committees empowered by the Senate to do so to meet after a dissolution of the House.
The Senate has not met during a period when the House was dissolved, but Senate committees have often done so, and have also often met after a prorogation. Proceedings at such meetings have included the hearing of evidence in public session. Committee reports have also been presented.
If the Senate were to meet after a prorogation, the business before the Senate would be the business pending at the prorogation, and it would be for the Senate to determine which business it should pursue. The Senate’s agenda, and those of its committees, are therefore regarded as continuing until the day before the opening of the next session.