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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 21 - Relations with the House of Representatives

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Reform of section 57

Section 57 of the Constitution was intended to provide a mechanism for resolving deadlocks between the two Houses in relation to important legislation. By judicial interpretation, and by the misuse of the section by prime ministers over the years, it now appears that simultaneous dissolutions can be sought in respect of any number of bills; that there is no time limit on the seeking of simultaneous dissolutions after a bill has failed to pass for the second time; that a ministry can build up a “storehouse” of bills for simultaneous dissolutions; that the ministry which requests simultaneous dissolutions does not have to be the same ministry whose legislative measures have been rejected or delayed by the Senate; that virtually any action by the Senate other than passage of a measure may be interpreted as a failure to pass the measure, at least for the purposes of the dissolutions; and that the ministry does not need to have any intention to proceed with the measures which are the subject of the supposed deadlock after the elections. By putting up a bill which is certain of rejection by the Senate on two occasions, a ministry, early in its life, can thus give itself the option of simultaneous dissolutions as an alternative to an early election for the House of Representatives. This gives a government a de facto power of dissolution over the Senate which it was never intended to have, and greatly increases the possibility of executive domination of the Senate as well as of the House of Representatives:

The power of a double dissolution is one of the reserve powers of the Constitution and should only be resorted to on great and urgent occasions involving momentous issues of legislative policy.[107]

Consideration should be given to a reform of section 57 to restrict the power of a ministry to go to simultaneous dissolutions as a matter of political convenience. In order to restrict section 57 to its intended purpose, a limitation should be placed on the number of measures which may be the subject of a request for dissolutions, time limits should be placed upon such dissolutions in relation to the rejection of the measures in question, and a prime minister should be required to certify that the measures in question are essential for the ministry to carry on and that it is the intention of the ministry to proceed with the measures should it remain in office, and the Governor-General should be required to be satisfied independently as to those matters. Any ambiguity as to the amendments which may be submitted to a joint sitting should also be removed.

In October 2003 the then Prime Minister announced that he was considering a scheme of constitutional amendment, supposedly to “reform” section 57, but in effect either to allow legislation to bypass the Senate or to give the Prime Minister greater control over the electoral cycle. A consultative group appointed by the Prime Minister reported in 2004 that the electors would not approve such schemes.[108]

A simpler method of resolving disagreements between the Houses could be sought without, unlike such proposals, giving a government in control of the House of Representatives unfettered power to legislate by decree. At the Constitutional Convention of 1897, a proposal was considered to refer legislation in disagreement to a referendum, to allow the electors to resolve the issue. This would provide a wholly democratic method of resolution without destroying the essential safeguard of bicameralism.

107. John Quick, The Legislative Powers of the Commonwealth and the States of Australia, 1919, p. 641.
108. 15/6/2004, J.3439-40; letter from the Clerk of the Senate to the consultative group, 4/11/2003.