Joint sittings of the Houses
Simultaneous dissolutions of the two Houses of the Parliament do not necessarily ensure that the proposed law(s) in dispute between them will be settled. As has been noted, the two Houses constitute distinctive reflections of electoral opinion and, particularly when it is closely divided, it is possible that there will be different majorities in the two Houses following simultaneous elections.
In the history of simultaneous dissolutions the consequent elections have brought the disputes decisively to a conclusion on four occasions, 1914, 1951, 1975 and 1983. On only one of these occasions, 1951, was the government whose legislation was at stake returned to office and in that instance it also secured a majority in the Senate.
On two occasions, however, the resulting elections have not been sufficient to resolve the fate of the legislation in dispute. In 1974, the Whitlam Government, although supported by a majority in the House, still lacked support for the disputed legislation in the Senate. As a consequence, a joint sitting was convened as provided for in paragraphs 2 and 3 of section 57:
If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.
The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen’s assent.
The requirements for a joint sitting are thus that following simultaneous elections for the two Houses, the proposed law must again be passed by the House of Representatives, “with or without any amendments which have been made, suggested, or agreed to by the Senate”. If the Senate then rejects, or fails to pass the proposed law(s) or passes it (them) with amendments to which the House does not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.
At the joint sitting the members present “may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives”.
The joint sitting is empowered to consider amendments proposed by one House and not agreed by the other. To take effect these amendments must be affirmed by an absolute majority of the total number of senators and members of both Houses. The wording of this provision concerning amendments presents some difficulties of interpretation. The provision does not allow the government to submit to a joint sitting completely new provisions which have not previously been considered by the Senate, as this would amount to de facto unicameralism for any legislation following a simultaneous dissolution. The provision refers only to amendments agreed to by the Senate and amendments proposed by the House in substitution for Senate amendments prior to the dissolution. It may be doubted whether the provision allows the submission of amendments to a bill to which the Senate agreed where the Senate subsequently rejected the bill at the third reading (see also above, under Constitutional provisions and their application, point 11).
The proposed law itself, with the amendments, if any, must likewise be affirmed by an absolute majority of the total number of senators and members.
Following the simultaneous dissolutions of April 1974 the six proposed laws in dispute were submitted to the new Parliament for consideration. They were swiftly passed by the House of Representatives, where the guillotine was employed, but again were rejected by the Senate. A joint sitting of the two Houses was therefore convened for 6-7 August 1974 to deliberate and vote upon each of the six bills “as last proposed by the House of Representatives”.
Prior to the joint sitting, however, two senators sought injunctions from the High Court to prevent it from proceeding. Issues in question concerned consideration of more than one proposed law at a joint sitting; “stockpiling” of bills prior to simultaneous dissolutions; the meaning of “failure to pass” in relation to one of the proposed laws; the effect of prorogation on bills which already met the requirements of section 57; and specification in the Proclamation of the proposed legislation to be considered at the joint sitting. The Court refused to grant interim injunctions. The issues in question were ultimately determined in later challenges to laws enacted at the joint sitting. Briefly, the Court saw no objection to more than one bill forming the basis for simultaneous dissolutions; nor did it consider that prorogation altered the status of a bill so far as section 57 requirements were concerned. It did, however, eventually hold one of the six laws enacted on this occasion to be invalid on the basis that the timetable specified in section 57 had not been observed.
So far as the joint sitting itself was concerned there were questions about the proclamation. In answering them there was a divergence of opinion in the Court, ranging from Chief Justice Barwick, who held that specification of the proposed laws to be considered may invalidate the proclamation, through views that specification was unnecessary, to positive statements that the proclamations should always state the proposed laws which are the subject of double dissolution and joint sitting. There are advantages in specifying the proposed laws being considered, for this in effect provides the basis for an agenda.
Prior to the joint sitting, rules for its conduct were drawn up and adopted by the two Houses. These are set out in ASP, 6th ed., pp 1052-6.
The rules provided only for those procedures which appeared to be necessary for the consideration of proposed laws under section 57 of the Constitution and they kept as close as possible to standard parliamentary practices. An exception was in the mode of putting the question on a proposed law, namely: “That the proposed law be affirmed”. Because amendments could not be moved at the joint sitting to any of the proposed laws, it was considered unnecessary to take a bill through the usual three readings and committee stage. Other rules provided for a 20 minute time limit on all speeches, relief for the Chair, closure of debate, and suspension of the rules (those relating to the 20 minute time limit on speeches and the closure could not be suspended). In any matter of procedure not provided for in the rules, the Standing Orders of the Senate were to be followed as far as they could be applied.
The venue for the joint sitting was the chamber of the House of Representatives in the provisional Parliament House. The rules provided that members and senators should address the joint sitting from lecterns provided on either side of the chair.
In sittings of each House prior to the joint sitting, other bills were introduced to enact amendments to the Parliamentary Papers Act, the Parliamentary Proceedings Broadcasting Act, and the Evidence Act, so that those Acts could apply to the proceedings of a joint sitting. The Parliamentary Papers Act was amended to protect the Government Printer in publishing the Hansard report of the joint sitting as well as any papers that might be tabled at the joint sitting. The amendment of the Parliamentary Proceedings Broadcasting Act ensured that the proceedings of the joint sitting could be broadcast and televised and that the Australian Broadcasting Commission would enjoy the same immunity in respect of the broadcasting and televising of a joint sitting as it enjoyed in relation to an ordinary sitting of either House. The amending Evidence Act applied provisions of the Act to a joint sitting, so that judicial notice could be taken of the official signature of the member presiding at a joint sitting, and provided for documents presented at a joint sitting to be admitted in court in evidence.
On the question of freedom of speech at the joint sitting, it was considered that section 49 of the Constitution applied to a joint sitting.
The matter was the subject of a resolution of the Senate:
That this Senate resolves that it be a rule and order of the Senate that, at a joint sitting with the House of Representatives, the proceedings are proceedings in Parliament, and that the powers, privileges, and immunities of Senators shall, mutatis mutandis, be those relating to a sitting of the Senate.
A similar resolution was also agreed to by the House of Representatives.
A further question considered was the matter of possible disagreement by the Houses on the proposed rules. Section 50(ii) of the Constitution contemplates that both Houses sitting separately would adopt the rules to apply to the joint sitting. Failing agreement being reached by both Houses, it was thought possible that a joint sitting might have sufficient authority to draw up its own rules. A further suggestion was that the joint sitting might resolve to adopt the standing orders and practices of the Senate as far as they could be applied, in accordance with the parliamentary convention that the procedure of a joint committee of the two Houses follows the procedure of committees of the Senate when such procedure differs from that of committees of the House whether the chair is a member of the House or not. Following that guideline, it was suggested that the joint sitting might resolve that the standing orders and practices of the Senate apply to the procedure of the joint sitting, subject to certain modifications, which would include such matters as the mode of putting questions and speaking times.
All proceedings of the joint sitting were broadcast by the Australian Broadcasting Commission and a complete sound record was made for archival purposes.
The joint sitting occupied two days, 6-7 August 1974, and the six proposed laws named in the Governor-General’s proclamation were all affirmed by an absolute majority of the total number of the members of the Senate and of the House of Representatives, as required by section 57 of the Constitution. The bills were so certified by the Joint Clerks, presented to the Governor-General, and assented to. As noted above, one of the laws was subsequently held to be invalid by the High Court.
The simultaneous dissolutions of 1987, based on the Australian Card Bill 1986, had a simpler and speedier resolution. Once again, the government proposing the legislation secured a majority in the House but failed to do so in the Senate. The proposed legislation was promptly introduced, again passing the House. The bill was then sent to the Senate. During the second reading debate in the Senate, it was pointed out that the bill depended for its operation upon regulations which could be disallowed by the Senate. The bill was then abandoned by the government, thus obviating the possibility of a joint sitting.