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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 19 - Relations with the executive government

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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.[301] 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.[302] 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, 2004 and 2010 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.

(SEE SUPPLEMENT)

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.

(a) prorogation

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.[303]

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[304] 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".[305] Accordingly, on 6 June 1901 the Senate resolved to appoint a Library and a House Committee with the "power to act in the recess".[306] 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.[307]

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".[308] 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.

(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 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.[309]

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 -

  1. (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;
  2. (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 -

  1. (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 -

  1. (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;
  2. (b) in any case, the Senate and its committees may meet after a prorogation;
  3. (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
  4. (d) the Senate may authorise, in advance of their receipt, the publication with absolute privilege of reports of its committees, because -
  1. (i) this is in accordance with the Parliamentary Papers Act; and
  2. (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:[310]

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.[311]

The motion was agreed to after debate, and without division.[312] 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.


301. The NSW Parliament was prorogued in December 2010, ostensibly to prevent an inquiry by a Legislative Council committee into the privatisation of electricity. The inquiry proceeded; strongly criticised for its actions, the government lost office in the subsequent election.
302. 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.
303. See Chapter 12, Legislation, Revival of bills.
304. J.25.
305. 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.
306. J.26.
307. HRD, 28/3/1957, pp. 339-40.
308. 11/6/1970, J.187.
309. J.1270.
310. 22/10/1984, J.1275.
311. 22/10/1984, J.1276.
312. SD, 22/10/1984, p. 2129-36.