Constitutional provisions and their application
When the Constitution was in preparation, one of the major issues in contention was how to resolve deadlocks between the houses over legislation. Few constitutions in existence at that time contained any such mechanism: those which did mainly provided for conferences between the houses, reflecting practice as it had developed in the Congress of the United States. The procedure eventually adopted, and embodied in section 57 of the Constitution, was thus a major innovation in constitutional and bicameral practice. Part of the innovation was the possibility of dissolution of and general election for both Houses of the Parliament.
Section 57 of the Constitution as it relates to simultaneous dissolutions provides:
If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, 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 dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.
Since federation, section 57 has been activated on seven occasions: 1914, 1951, 1974, 1975, 1983, 1987 and 2016 to resolve deadlocks over legislation between the houses. On four occasions the government advising simultaneous dissolutions has been returned to office; on only one of those occasions, 1974, did the original legislation leading to the dissolutions become law, and, in that instance, after a joint sitting as provided for in paragraphs 2 and 3 of section 57. The legislation that lead to the 2016 dissolutions also became law, but only after amendments made in the Senate were agreed to by the House.
As a consequence of the seven simultaneous dissolutions, and the judgments of the High Court in three cases arising from the 1974 dissolutions, it is now possible to amplify the workings of section 57 of the Constitution so far as simultaneous dissolutions of the two Houses are concerned. The following observations can be advanced as influencing the use of section 57.
1. The interval of three months referred to in paragraph 1 of section 57 is measured from the Senate’s rejection or failure to pass a bill.
According to the High Court, it is ‘measured not from the first passage of a proposed law by the House of Representatives, but from the Senate’s rejection or failure to pass it. This interpretation follows both from the language of section 57 and its purpose which is to provide time for the reconciliation of the differences between the Houses; the time therefore does not begin to run until the deadlock occurs’. (Victoria v. Commonwealth, 1975 7 ALR 2.)
2. Simultaneous dissolutions have been granted on several occasions where the proposed legislation has been deemed to have ‘failed to pass’ the Senate.
Where the Senate rejects a bill outright by voting against it, or amends it in a manner unacceptable to the House of Representatives, it is clear that such actions meet one of the criteria for a double dissolution specified in section 57. The situation is not so clear, however, in respect of those financial bills which the Senate may not amend but in respect of which it may request the House of Representatives to make omissions or amendments (Constitution s. 53). If the House does not accede to a Senate request and returns a bill unamended the Senate may repeat, or ‘press’, the request. It is a significant question, which has not been considered, whether the Senate in making or pressing requests for amendments to a bill could be said to have failed to pass it within the meaning of section 57. In that circumstance the Senate has not passed the bill with amendments. Certainly, if the Senate makes or presses requests it cannot be said to have failed to pass the bill until the House of Representatives has rejected the requests and the Senate has had an opportunity to reconsider them. In that respect the government appears to have been in error in declining to consider the Senate’s pressed requests in relation to the Sales Tax Amendment Bills (Nos 1A to 9A) 1981 (see Senate Debates, 22 October 1981, pp. 1547–8, particularly the statement by Senator Harradine that the action taken by the government in the House of Representatives ‘was not only unconstitutional but also … ensured that the time clock for action to be taken under the dissolution provisions of section 57 of the Constitution could not run’).
There is also some uncertainty in respect of the phrase ‘fails to pass’ used in paragraph 1 of section 57. If the Senate defers consideration of a bill till the next period of sittings, refers it to a committee, or debates it for many months, do any of these, singly or in combination, constitute failure to pass?
In 1951, following the second passage of the Commonwealth Bank Bill through the House, the Senate, after a second reading debate extending over several days, referred it to a select committee. This was said by Prime Minister Menzies to constitute ‘failure to pass’, a phrase which encompassed ‘delay in passing the bill’ or ‘such a delaying intention as would amount to an expression of unwillingness to pass it’. The Attorney-General, Senator J.A. Spicer, wrote that the phrase, ‘failure to pass’, was intended to deal with procrastination. Professor K.H. Bailey, the Solicitor-General, considered, inter alia, that ‘adoption of Parliamentary procedures for the purpose of avoiding the formal registering of the Senate’s clear disagreement with a bill may constitute a ‘failure to pass’ it within the meaning of the section’. The Deputy Leader of the Opposition in the House of Representatives, Dr H.V. Evatt, had previously been reported in the press as saying that referral of legislation to a select committee, being clearly provided for in the standing orders of the Senate, was not a failure to pass.
In 1975, the High Court held that the proposed law creating the Petroleum and Minerals Authority had not, as claimed, ‘failed to pass’ the Senate on 13 December 1973 (the day the bill was received from the House of Representatives for the first time) and, as a result, it was declared not to be a valid law of the Commonwealth. The second reading was not, in fact, negatived a first time in the Senate until 2 April 1974. In its judgment, the High Court held that ‘The Senate has a duty to properly consider all Bills and cannot be said to have failed to pass a Bill because it was not passed at the first available opportunity; a reasonable time must be allowed’. In so deciding, the majority observed that the opinions of individual members of either House ‘are irrelevant to the question of whether the Senate’s action amounted to a failure to pass’ (Victoria v. Commonwealth, 1975 7 ALR 2.)
Since 1990 most significant or controversial bills have been referred to a Senate committee for examination and report. As this procedure is now an established part of the legislative process in the Senate it is unlikely that the referral of a bill to a committee would in itself now be regarded as a failure to pass in terms of section 57.
Since 1995 consideration of legislation introduced into the Senate has, unless specifically exempted, been automatically adjourned until the next period of sittings (standing order 111). On 20 May 1996 the government moved a motion to exempt the Telstra (Dilution of Public Ownership) Bill 1996 from the Senate’s deadline for the consideration of bills but an amendment was moved to this motion to refer the bill to a committee for report by 22 August 1996. This amendment, which was passed on the following day, required the committee to consider a lengthy list of issues arising from the bill. It is fairly clear that this action by the Senate could not be held to be a failure to pass the bill within the meaning of section 57. The Senate could have refused to grant exemption to the bill and then referred it to a committee in the August sittings, and even this probably could not be held to constitute a failure to pass.
3. It is not necessary for the Houses to be dissolved without delay once the conditions of section 57 have been met.
According to the High Court:
This interpretation follows both from the language of s. 57, which provides for express time limits in relation to other parts of the procedure laid down by the section but provides for none in respect to the interval between the Senate’s second rejection of a proposed law and the double dissolution …
Inter alia, the Court observed that:
“undue delay” would be impossible of determination by the court. (Western Australia v. Commonwealth, 1975 7 ALR 160.)
4. Not only is it not necessary for simultaneous dissolutions to follow a second rejection etc. by the Senate ‘without undue delay’, it is not usual for account to be taken of the currency of legislation when it is submitted as a basis for simultaneous dissolutions.
Thus, in 1983, Governor-General Sir Ninian Stephen simply noted that ‘in the case of each of these measures a considerable time has passed since they were rejected or not passed a second time in the Senate.’ (Governor-General to Prime Minister, 4 February 1983, Parliamentary Paper 129/1984, p. 43.)
5. There is no limit to the number of proposed laws on which simultaneous dissolutions of the Houses may be based.
The first dissolutions based on more than one bill occurred in 1974 (subsequently in 1975 and 1983). The High Court has ruled that: ‘... a joint sitting of both Houses of Parliament convened under s. 57 may deliberate and vote upon any number of proposed laws in respect of which the requirements of s. 57 have been fulfilled.’ (Cormack v. Cope, 1974 131 CLR 433). As Justice Sir Ninian Stephen observed: ‘One instance of double rejection suffices but if there be more than one it merely means that there is a multiplicity of grounds for a double dissolution, rather than grounds for a multiplicity of double dissolutions.’ (ibid., p. 469).
6. The political or policy significance of legislation is not material to a decision to accede to a request that both Houses be simultaneously dissolved.
This issue arose in 1914. The Opposition in the Senate, which contested the Governor-General’s decision to grant simultaneous dissolutions, protested that the proposed legislation, the Government Preference Prohibition Bill, was not a vital measure and that the deadlock had been contrived. That the deadlock was contrived in a narrow sense cannot be disputed for this is clearly set out in a memorandum furnished to the Governor-General by Prime Minister Joseph Cook which stated that when it became ‘abundantly clear’ that the Opposition had taken control of the Senate, ‘we [the Government] decided that a further appeal to the people should be made by means of a double dissolution, and accordingly set about forcing through the two short measures for the purpose of fulfilling the terms of the Constitution’. (Parliamentary Paper 2/1914–17, p. 3.) It has been customary subsequently for prime ministers, when proposing simultaneous dissolutions, to stress the significance of the legislation involved.
7. Even where the conditions for simultaneous dissolutions as prescribed in section 57 have been met, it is customary for advice to be provided to the Governor-General on the ‘workability of Parliament’.
For example, prime ministers have argued that the government’s legislative program was being delayed or thwarted, that good government and secure administration were extremely difficult, and that a dissolution of the House of Representatives alone would not necessarily resolve the situation.