Questions Without Answers: Joint Meetings of the Australian Senate and House of Representatives
Dr Rosemary Laing
Acting Deputy Clerk of the Australian Senate
Questions Without Answers: Joint Meetings of the Australian Senate and House of Representatives (PDF 25KB)
Introduction
On successive days in October 2003, the Australian Senate and House of Representatives met simultaneously in the House of Representatives chamber to receive addresses from the Presidents of the United States of America and the People’s Republic of China. It was the third such address by a US President but the first by a head of state of any other country (including our own).1 Two senators were excluded from the address given by President Hu Jintao, apparently on the basis of disorderly conduct the previous day when both interjected during the speech of President George W. Bush.Three Senate committees subsequently examined aspects of these joint meetings, including the legitimacy of such an act of exclusion. This article provides a history of joint meetings of the Houses of the Australian Parliament and iden-tifies questions of order and privilege that arose from the recent joint meet-ings. Arguably, some of these questions were already inherent in the arrangements for earlier joint meetings that were held on a more formal basis.
The constitutional basis for joint sittings
Joint sittings, as distinct from joint meetings, are authorised under section 57 of the Australian Constitution.They are held to resolve a legislative deadlock when the Senate has on three occasions rejected, unacceptably amended or failed to pass a bill (or bills) sent to it by the House of Representatives, with a general election for all members of both Houses intervening between the second and third such occasion. Under these provisions, the two Houses meet and vote as one for the purpose of passing bills that are eligible to be considered in this way.
There has been only one such joint sitting since 1901. Six bills were passed at a joint sitting in August 1974 after the double dissolution election that year.
Section 50 of the Constitution empowers each House to make “rules and orders” with respect to:
- the mode in which its powers, privileges and immunities may be exer-cised and upheld; and
- the order and conduct of its business and proceedings either separately or jointly with the other House.
The powers, privileges and immunities of each House, its members and committees are provided under section 49 of the Constitution to be “such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth”.
Before the 1974 joint sitting, each House agreed to a set of rules for the joint sitting which included a mechanism for dealing with questions of order by providing how objections to rulings of the chair would be dealt with. Each House also resolved, adopting the language of section 50 of the Constitution, that the joint sitting constituted proceedings in Parliament and that the powers, privileges and immunities applying to a normal sitting of a House would apply to members and senators at the joint sitting:
“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.”
The House of Representatives agreed to a mirror resolution. In explana-tion to the House after the resolution had been agreed to, the Attorney-General indicated that its purpose, authorised by section 50 of the Constitution, was to declare that the joint sitting was covered by parliamen-tary privilege, given that the powers, privileges and immunities of the House of Commons in 1901, inherited by the Houses of the Federal Parliament under section 49 of the Constitution, provided for no such body.
The effect of these resolutions is uncertain. They were not declarations under section 49 of the Constitution of the powers, privileges and immunities of the Houses because such a declaration could be made only by “the Parliament” which the Constitution defines as comprising the Queen, the Senate and the House of Representatives. Such a declaration would presum-ably take statutory form, as in 1987 when “the Parliament” made such a declaration in the form of the Parliamentary Privileges Act 1987. An under-lying question is whether such a declaration could create a new kind of power, privilege or immunity, exceeding the scope of the powers, privileges and immunities inherited in 1901. In the event, there was no reason to test the effectiveness of the resolutions for the 1974 joint sitting.The High Court decided three cases arising from the joint sittings but none touched on any matter relating to the powers, privileges and immunities of the joint sitting.2
Joint meetings held pursuant to statute
The Constitution mentions joint sittings in another context. Under section 15, senators chosen to fill casual vacancies arising in the representation of a state are chosen by a joint sitting of the state houses.This model was followed in the Senate (Representation of Territories) Act 1974 (an Act passed by the 1974 joint sitting and surviving a High Court challenge). The mechanism chosen to fill casual vacancies in the representation of the Australian Capital Territory, then a non-self-governing territory, was a joint sitting of the Senate and the House of Representatives which would vote together to choose a replacement senator. In this role, the Houses functioned as an electoral college, as did the state houses under section 15, rather than exercising the legislative power of the Commonwealth as provided under section 57. Two casual vacancies were filled by this method before the ACT was granted self-government in 1989 and the ACT Legislative Assembly assumed that role.
Before each of the joint meetings to choose ACT senators to fill casual vacancies, in 1981 and 1988, both Houses again agreed to resolutions adopt-ing rules for the joint meeting, including rules for the maintenance of order. Before the 1981 meeting, the Houses also adopted resolutions in similar terms to the resolution agreed to before the 1974 joint sitting but applying specifically to meetings held pursuant to the electoral law, declaring such meetings to be proceedings in Parliament and that the powers, privileges and immunities applying to each of the Houses would apply to their members at the joint meeting.Various laws were also amended, as they had been in 1974, to extend their application to joint meetings of this character.These included the Parliamentary Papers Act 1908, the Evidence Act 1905 and the Parliamentary Proceedings Broadcasting Act 1946.
The validity of holding joint meetings pursuant to statute, rather than under the direct authority of the Constitution, was never challenged, although doubts about the constitutionality of the meetings were raised at the time. It is arguable that the power of the legislature does not extend to autho-rising by statute a form of parliamentary meeting that is reserved for the special circumstances arising out of section 57. The members of the two Houses may be appointed as an electoral college to appoint territory senators but, arguably, that meeting is not a meeting of the Houses as constituted in Chapter 1 of the Constitution, and its proceedings are therefore not proceed-ings in Parliament, notwithstanding resolutions of the Houses declaring them to be such.
Joint meetings held pursuant to resolution
Aspects of the arrangements for the joint sitting in 1974 and the joint meet-ings held under the electoral laws in 1981 and 1988 were troubling in theory only. Although the 1988 joint meeting was robust in character, no issue arose at either this or the previous meetings to test the validity of the arrangements that had been agreed to. No further joint sittings or joint meetings pursuant to statute occurred, but during the 1990s and into the new century a practice developed of holding joint meetings pursuant to resolution, for ceremonial purposes.
On the occasion of the centenary of the first meeting of the Commonwealth Parliament in Melbourne on 9 May 1901, the Senate and House of Representatives met together in the Royal Exhibition Buildings in Melbourne. Proceedings followed the order of business set out in the resolu-tions agreed by each House; namely, addresses by various personages.There was, in effect, no chair of the meeting and at its conclusion the Speaker adjourned the House and the President of the Senate separately adjourned the Senate. It had been an inclusive and harmonious ceremony of national celebration at which best behaviour was on display.
On four other occasions since 1992 the Senate and the House of Representatives have met together by resolution, in the House of Representatives chamber, to receive addresses from foreign heads of state. These meetings were modelled on the practice of the United States of America. Australian Prime Ministers Menzies and Hawke had been invited to address the US Congress, and the Australian government reciprocated by inviting Presidents George Bush (1992) and Bill Clinton (1996) to address the Australian Parliament, each House of which was then asked to agree to resolutions issuing the invitation and setting out arrangements for the meeting. Prime Minister Howard also addressed Congress in June 2002 and a recipro-cal invitation was issued to President George W. Bush for 23 October 2003.
The joint meetings of October 2003
There had been some debate in the Senate over the years about whether the practice should extend to other heads of state but this idea had generally been rejected on the basis that Australia was simply reciprocating US hospi-tality. Indeed, a motion moved by Senator Brown (Australian Greens, Tasmania), noting the addresses by US Presidents in 1992 and 1996 and favouring the extension of similar invitations to heads of other states “where a special relationship is recognised or a special occasion is to be honoured”, was rejected by a vote of 43 to 2 on 16 September 2003, before the October invitations had been mooted. However, the President of the People’s Republic of China, Hu Jintao, was to be in Australia on 24 October 2003, the day following the US President, and a similar invitation was issued to President Hu. Neither invitation was without controversy given that popular opinion was divided on Australia’s participation with the US in the war in Iraq, and that President Hu did not head a democratic regime. The govern-ment had taken parliamentary approval of the invitations for granted, meaning that failure by either House to agree to the resolutions would have been acutely embarrassing.
The resolutions of each House inviting the two presidents and setting out the order of business for the meetings took virtually the same form as the resolutions convening the earlier joint meetings to receive addresses from US Presidents in 1992 and 1996. For the 2003 meetings, the House of Representatives sent messages to the Senate indicating that the House had invited the relevant president to address a meeting of the House, inviting the Senate to meet with it for that purpose and providing for arrangements for the conduct of the meetings. The Speaker of the House of Representatives was to preside over the meetings of the two Houses and the only business to be conducted was the delivery of welcoming remarks by the Prime Minister and Leader of the Opposition, the address by the invited president and the adjournment of the meeting. No senator had a speaking role and the proce-dures of the House of Representatives were to apply “so far as they [were] applicable”. On receipt of the messages, the Senate also invited the relevant president to address a meeting of the Senate, accepted the invitation of the House to meet with it, and concurred with the resolution of the House in relation to the conduct of the meeting. Amendments moved in the Senate to alter the location of the meeting to the Great Hall in Parliament House, to provide for welcoming remarks by a representative of the Australian Greens and for the presidential address to be followed by five minute contributions and questions from other members and senators were defeated. These amendments signalled that the occasions would not be as free from contro-versy as those of 1992 and 1996.
Under the terms of the resolutions, these were separate but simultaneous and co-located meetings of the Senate and the House of Representatives, presided over by the Speaker of the House and following House procedures “so far as they [were] applicable”. Unlike the Melbourne centenary meeting, however, the device of holding separate meetings was not reinforced by sepa-rate adjournments of each House.
Given the ceremonial character of these joint meetings, it is apparent that the possible need to deal with questions of order was dismissed as unlikely and, in any event, was presumed to be covered by the agreement to follow House of Representatives procedures “so far as they [were] applicable”. Questions of the interpretation of this phrase had been raised in 1991 before the first such address by a US President early in 1992 but had not been revis-ited in any systematic fashion. How to resolve a question of order that might arise during a meeting of the Senate presided over by the Speaker of the House of Representatives, and possibly involving members of the House of Representatives voting on what occurred in a meeting of the Senate, remained unaddressed except by the highly problematic agreement that the procedures of the House would apply “so far as they [were] applicable”.
During President George W. Bush’s address on 23 October 2003, the two Australian Greens senators, Senators Brown and Nettle, both interjected and were ordered by the Speaker to leave the chamber. They did not do so, nor did they leave when approached by the Serjeant-at-Arms, who had been instructed to carry out the Speaker’s order. One of their guests in the public gallery also rose in his place and called out. After the address, the Speaker stated that the two senators had committed an offence and called on the Leader of the House, who moved that they be suspended from the service of the House (sic), and the Speaker declared the motion carried. It was later claimed that the Speaker had ignored calls for a division, made by the required number of members under the procedures of the House. Under those procedures, a first offence of this kind carries a suspension of 24 hours and it was subsequently claimed by the Speaker that the effect of the resolu-tion was that Senators Brown and Nettle were held to be excluded from the address by President Hu Jintao the following day.
As President Bush left the chamber but before the meeting was adjourned, he was greeted by various members and senators, and Senator Nettle sought to approach him to present him with a letter from the wife of one of the Australians detained at Guantanamo Bay in Cuba. She was prevented from doing so by an apparent crush of members and senators and in the jostling that followed, a member of the House of Representatives chamber staff was seen to put a hand on her arm or jacket, apparently in an attempt to restrain her. All of this was caught on camera by a US television crew which had filmed the incident from the public gallery. This action in itself was a breach of the rules of the House which require all television footage of the chamber to be taken from the official house monitoring system. The presence of the camera in the gallery was unauthorised and the subject of the filming was also contrary to rules which require cameras to focus on the person speaking and not on peripheral events.
Later that day the Speaker advised the President of the Senate that Senators Brown and Nettle would not be permitted in the House of Representatives chamber for President Hu’s address the following day. The President advised the two senators and both Presiding Officers signed a directive to security staff that Senators Brown and Nettle were not to enter the House of Representatives chamber and, if necessary, “preventative force” should be used to stop them. The Speaker also decided that guests of the Australian Greens senators and their House of Representatives colleague would not be allowed into the public gallery, from where they might disrupt proceedings, but should be redirected to the glazed gallery on the upper floor. It later emerged that Chinese officials had expressed concern to the Presiding Officers that there be no embarrassing incidents during or surrounding President Hu’s address. On 24 October Chinese security offi-cials joined Australian security officials in the chamber galleries and precincts, as US security officials had the day before. The address by the Chinese President passed without incident.
The aftermath
The Senate referred various aspects of these events to its Committee of Privileges on 29 October 2003. The question of rules for any further joint meetings had been referred to its Procedure Committee on the previous day. Arrangements for the joint meetings and what transpired were also examined by the Senate Finance and Public Administration Legislation Committee during the course of its supplementary hearings on the Budget estimates on 3 and 4 November 2003. At these hearings, evidence was given by the President of the Senate, officers of the Department of the Senate and the Joint House Department (as it then was) which was responsible for security, as well as by the Minister representing the Prime Minister, and officers of the Department of the Prime Minister and Cabinet which had been responsible for the bulk of the arrangements for the ceremonial meetings. Neither the Senate nor any of its committees could examine the actions of the Speaker or officers of the Department of the House of Representatives, but the Speaker did contribute a submission to the inquiry by the Committee of Privileges, consisting of his statements to the House and his answers to questions asked by members.
Questions
A threshold issue that arises is whether there is any constitutional basis for joint meetings of the Senate and the House of Representatives, other than joint sittings held pursuant to section 57 of the Constitution. On one view, the answer is no, and the reference in section 50 of the Constitution to the order and conduct of the proceedings of a House “either separately or jointly with the other House” is a reference to a joint sitting under section 57, not to any other sort of joint meeting. The opposing view is that section 50 autho-rises joint meetings of any kind. The issue has never been adjudicated, but if there is no constitutional basis for such a meeting, the question which follows is whether such meetings may nonetheless be “proceedings in Parliament” on some other basis. How does parliamentary privilege apply to such meet-ings? Can it apply to a joint meeting of the two Houses as distinct from meet-ings of the individual Houses? Did the acceptance by the Senate of the procedures of the House of Representatives “so far as they [were] applica-ble” amount to a “waiver” of privilege, or of the Senate’s control of its own proceedings, to any extent. Indeed, is such a waiver conceptually, let alone legally, possible?
A further threshold issue is whether a resolution applying the procedures of the House of Representatives to the meeting, necessarily authorised the powers of the House to be applied to a meeting of the Senate, thereby autho-rising the Speaker to “name” apparently disorderly senators and call for a motion to be moved to suspend the senators “from the service of the House” (sic), which also had the effect of suspending them from a meeting of the Senate without a vote of the Senate. On what basis may one House enforce orders against the members of another House who are participating in a meeting of their own House?
There is also a difficulty for the Senate in investigating what might have happened at the joint meeting because of the jurisdictional limits which prevent one House from inquiring into the affairs of another. While each House is the guardian of its own powers, privileges and immunities, it is impossible to determine how the powers, privileges and immunities of the Houses interrelate when they hold simultaneous meetings in one location.
Both Senate committees inquiring into the joint meetings came to the same conclusion.The answers were impossible to determine, but the solution was clear: there should be no such joint meetings in the future. If an invita-tion were to be issued to a head of state to address “the Parliament”, in a parliamentary setting, then an invitation should be issued by the House of Representatives alone, in effect, by the government which controls that House. Senators could be invited to attend, but there would be no concur-rent meeting of the Senate and their status as guests of the House and the authority of the Speaker over the proceedings would be clear.The Senate has yet to consider the committees’ reports.
The final question that arises is “why does it matter?” A practical example may provide the best illustration. After the joint meetings, a story was circu-lated that the exclusion of the two Greens senators had the effect of exclud-ing one of them from subsequent meetings of the Senate, because he had earlier in the year been suspended from a sitting of the Senate and, under Senate rules, a second offence in a year attracts a seven day suspension. It could have been easier for the government to obtain a Senate majority for the passage of legislation. No attempt was made to raise this argument in the Senate, probably because of the enormity of its implications. If, during the period that one or two senators were suspended by the means described above, the Senate passed a contentious bill that would otherwise have been defeated by the votes of those senators, the consequences would be self-evidently serious. Such a situation would certainly have resulted in a legal challenge, and the High Court, however reluctantly, would have been called upon to determine these difficult questions.
This paper was originially part of The Table: The Journal of the Society of Clerks-at-the-table in Commonwealth Parliaments, Volume 72.