 |
Chapter 19 - Relations with the executive government
(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 (see Chapter 12, Legislation, Revival of bills).
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 (J.25) 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”
(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). Accordingly, on 6 June 1901 the Senate resolved to appoint a Library and a House Committee
with the “power to act in the recess” (J.26). 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. (HRD, 28/3/1957, pp
339-40.)
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” (11/6/1970, J.187). 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.
Previous page | Contents | Next page
Website feedback: web.senate@aph.gov.au
Last reviewed 31 July 2009 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
 |
