Double dissolution

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A double dissolution is a procedure permitted under the Australian Constitution to resolve deadlocks between the House of Representatives and the Senate. If the conditions are satisfied (called a trigger), the government of the day can request the Governor-General to dissolve both houses of parliament and call a full election. If after the election the legislation is still not passed by the two houses, then a joint sitting of the two houses of parliament can be called to vote on the legislation. If the legislation is passed by the joint sitting, then the legislation is deemed to have passed both the House of Representatives and the Senate. A double dissolution is the only circumstance in which the entire Senate can be dissolved.

Similar to the United States Congress, but unlike the British and Canadian Parliaments, Australia's two parliamentary houses generally have equal legislative power. The only exception is that appropriation (money) bills must originate in the House of Representatives and cannot be amended by the Senate (although they may be rejected outright). With the Senate having more or less equal power, governments, which are formed in the House of Representatives, can be seriously frustrated by Senate majorities determined to reject their legislation. This can be the case even when a government has a very strong majority in the House of Representatives.

Malcolm Fraser is the only Prime Minister to have advised two double dissolutions (1975 and 1983), and Sir Ninian Stephen is the only Governor-General to have approved two double dissolutions (1983 and 1987).

Constitutional basis[edit]

Part of section 57 of the Constitution provides as follows:

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.

Section 57 also provides that, following the election, if the Senate a third time rejects the bill or bills that were the subject of the double dissolution, the Governor-General may convene a joint sitting of the two houses to consider the bill or bills, including any amendments which have been previously proposed in either house, or any new amendments. If a bill is passed by an absolute majority of the total membership of the joint sitting, it is treated as though it had been passed separately by both houses, and is presented for Royal Assent. The only time this procedure was invoked was in the 1974 joint sitting.

Trigger event[edit]

The double dissolution provision comes into play if the Senate and House twice fail to agree on a piece of legislation (in section 57 called "a proposed law", and commonly referred to as a "trigger"). The government may use this trigger (or any number of triggers) to recommend the Governor-General dissolve the House and the entire Senate – pursuant to section 57 of the Constitution – and issue writs for an election in which every seat in the Parliament is contested.

The conditions stipulated by section 57 of the Constitution are—

  • The trigger bill originated in the House of Representatives.
  • Three months elapsed between the two rejections of the bill by the Senate ("rejection" in this context can extend to the Senate's failure to pass the bill, or to the Senate passing it with amendments to which the House of Representatives will not agree).
  • The second rejection occurred in the same session as the first, or the subsequent session, but no later.

There is no similar provision for resolving deadlocks with respect to bills that have originated in the Senate and are blocked in the House of Representatives.

Though the Constitution refers to the Governor-General doing certain things, it had until the 1975 Australian constitutional crisis been believed that convention required the Governor-General to act only on the advice of the Prime Minister. However, as the 1975 constitutional crisis demonstrated, the Governor-General is not compelled to follow the Prime Minister's advice. In these cases, he or she must be personally satisfied that the conditions specified in the Constitution apply, and is entitled to seek additional information or advice before coming to a decision.

Elections[edit]

Each state will elect their entire 12-seat senate delegation, while the two territories elect their two senators as they would in a regular federal election. As a result of all seats being contested, it is easier for smaller parties to win seats under the Senate proportional voting system: the quota for the election of each senator in each Australian state in a full Senate election is 7.69% (1/(12+1)), while in a normal half-Senate election the quota is 14.28% (1/(6+1)).

Unlike in a normal half-Senate election, the newly-elected Senate also takes office immediately. The Senate cycle is altered, with the next change of Senate membership scheduled for the second date that falls on 1 July after the election. The 12 senators from each state are divided into two classes: the first three senators to be elected from the state will serve a 5-6 year term until the second Senate changeover, while the other three senators serve a 2-3 year term until after the next Senate changeover (both of these may be interrupted by another double dissolution). Thus for the Parliament elected in the March 1983 double dissolution election, the next two Senate changeovers would be due on 1 July 1985 and 1 July 1988, while the term of the new House of Representatives would expire in 1986. Bob Hawke decided to call a regular federal election for December 1984 after only 18 months in office, in order to bring the two election cycles back into synchronization.

History[edit]

There have been 6 double dissolutions: in 1914, 1951, 1974, 1975, 1983, and 1987. However, a joint sitting following a double dissolution pursuant to section 57 has only taken place once, and that was in 1974.[1]

In 1914, the Joseph Cook Commonwealth Liberal Party sought to abolish preferential employment for trade union members in the public service,[2] resulting in a double dissolution on 30 July 1914. In the election on 5 September 1914 the government was defeated by the opposition, Andrew Fisher's Australian Labor Party,[3] and the bill was not pursued.

In 1951, the Robert Menzies Liberal-Country Party coalition government sought to reverse the proposed nationalisation of the banks put in place by the Australian Labor Party led by Ben Chifley when it was still in government.[4] The repeal was opposed by the Labor Party in the Senate. Parliament was dissolved on 19 March 1951. In the election on 28 April 1951, the government was returned with a reduced majority in the lower house, but now with a majority in the Senate. The Commonwealth Bank Bill was presented to Parliament again on 26 June 1951 and passed both houses.[5][6]

In 1974, the Gough Whitlam Labor government was unable to pass a large number of bills through a hostile Senate. The government had announced a half-Senate election, but in the wake of the Gair Affair, Whitlam decided to call a double dissolution on 11 April 1974, citing six bills as triggers for a double dissolution.[7] The bills included representation of the territories and for the setting up of Medibank. At the election of 18 May 1974, the government was returned, but still without a majority in the Senate. Sir Paul Hasluck's term as Governor-General ended on 11 July and the new Governor-General Sir John Kerr took office. The trigger bills were reintroduced and again rejected by the Senate and on 30 July Kerr approved Whitlam's request for a joint sitting. The coalition parties applied to the High Court on 1 August to prevent the joint sitting. One of the grounds was that the dissolution writs did not set out which "proposed laws" were the subject of the dissolution and that only one bill could be dealt with at a joint sitting. The court delivered a unanimous decision on 5 August 1974 and ruled that the sitting was constitutionally valid, that the joint sitting may deal with any number of trigger bills, and that provided the circumstances set out in section 57 had been satisfied then the Governor-General need not specify which "proposed laws" were to be the subject of a future joint sitting.[8] The joint sitting took place on 6–7 August 1974, and it passed the 6 trigger bills.[9] Thirteen months later, four states challenged the validity of the Petroleum and Minerals Authority Act 1973 in the High Court on the grounds that correct constitutional procedure had not been followed: it had not been one of the 'proposed laws' in dispute when the double dissolution was called and could not therefore be voted on by the joint session. The states were Victoria,[10] New South Wales,[11] Queensland[12] and Western Australia.[13] The High Court ruled that the Act was not eligible for the double dissolution process, as the Senate had not had sufficient time to "fail to pass" it.[14]

In 1975, the Whitlam government was again frustrated by a hostile Senate. The government had accumulated a total of 21 trigger bills,[15] but did not call for a double dissolution. However, the Whitlam government was unable to obtain passage of appropriation bills through the hostile Senate and leading to the 1975 Australian constitutional crisis. On 11 November 1975, in an attempt to break the deadlock, Whitlam intended to call a half-Senate election, but instead was dismissed by the Governor-General, Sir John Kerr, who then appointed Malcolm Fraser, the Leader of the Liberal-Country coalition Opposition, caretaker Prime Minister. The Fraser minority government immediately passed the Supply bills through the Senate (it had already passed the House of Representatives) before losing a no-confidence motion in the House of Representatives. Kerr then dissolved both houses of Parliament on the "advice" of the caretaker Prime Minister citing the trigger bills, even though Fraser had opposed the bills. (Commentators have since noted that the trigger bills also put the loaded gun in the hands of the Governor-General.[citation needed]) Fraser remained the caretaker Prime Minister during the election campaign. In the election on 13 December 1975 the Fraser government was elected with a majority in both houses[16] and the trigger bills were not brought up after the election.

On 3 February 1983, the Fraser government called a double dissolution, citing 13 trigger bills.[17] When Fraser called the election, he expected he would be facing Bill Hayden as the alternative prime minister. But unbeknown to Fraser, Labor had changed leadership from Hayden to Bob Hawke earlier that same morning. The Fraser coalition government was defeated by the Labor Opposition led by Hawke at the election on 5 March 1983,[18] and the bills were not pursued.

On 5 June 1987, the Hawke government called a double dissolution after the rejection of the Australia Card Bill 1986. The government was returned at the election of 11 July 1987, but still without a Senate majority. The bill was reintroduced in September 1987, and a vote in the Senate was planned for 7 October. A retired public servant, Ewart Smith, pointed out that the Australia Card Bill was unworkable because the implementation date would have needed to be the subject of a regulation, which would have required the concurrence of the Senate, which was hostile to the legislation. Even if the bill had been passed by the parliament at a joint sitting, the Opposition could still have prevented it from being implemented as long as it held a majority in the Senate. In these circumstances, Hawke decided to abandon the bill.[19][20]

Summary[edit]

The following table is a summary of the relevant details:

Date of double dissolution Date of election Governor-General Prime Minister Leader of the Opposition Relevant bills Circumstances and outcome
30 July 1914 5 September 1914 Sir Ronald Munro Ferguson Joseph Cook Andrew Fisher Government Preference Prohibition Bill 1913 The bill sought to abolish preferential employment for trade union members in the public service. The Cook Commonwealth Liberal Party government was defeated by Andrew Fisher's Australian Labor Party.[3]
19 March 1951 28 April 1951 William McKell Robert Menzies Ben Chifley Commonwealth Bank Bill 1950 [No. 2] The Menzies Liberal-Country Party coalition government was opposed by Chifley's Labor Party. It was returned with a reduced majority in the lower house, but crucially it now had a majority in the Senate as well. The Commonwealth Bank Bill was presented to Parliament again and passed both houses.[5]
11 April 1974 18 May 1974 Sir Paul Hasluck Gough Whitlam Billy Snedden 6 bills[7] The Whitlam Labor government was returned, but still without a majority in the Senate. The bills were reintroduced and again rejected by the Senate. Sir Paul Hasluck's term ended on 11 July and the new Governor-General Sir John Kerr approved Whitlam's request for a joint sitting. This was held on 6–7 August 1974, and it passed all the bills. Subsequently, the High Court ruled that the Petroleum and Minerals Authority Bill had not been eligible for the double dissolution process, as the Senate had not had sufficient time to "fail to pass" it.[9]
11 November 1975 13 December 1975 Sir John Kerr Malcolm Fraser (caretaker) Gough Whitlam 21 bills[15] Fraser had opposed the bills as Leader of the Liberal-Country coalition Opposition. He had been appointed caretaker Prime Minister when the Whitlam government was dismissed by Sir John Kerr after being unable to obtain passage of its appropriation bills. The Fraser minority government immediately lost a no-confidence motion in the lower house; but Kerr dissolved the Parliament on Fraser's advice (a condition of his appointment). Fraser remained the caretaker Prime Minister during the election campaign. On 13 December the Fraser government was elected in its own right with a record majority.[16]
3 February 1983 5 March 1983 Sir Ninian Stephen Malcolm Fraser Bob Hawke 13 bills[17] When Fraser called the election, he expected he would be facing Bill Hayden as the alternative prime minister. But unbeknownst to Fraser, Labor had changed leadership from Hayden to Bob Hawke earlier that same morning. The Fraser coalition government was defeated by the Labor opposition led by Hawke.[18]
5 June 1987 11 July 1987 Sir Ninian Stephen Bob Hawke John Howard Australia Card Bill 1986 The Hawke government was returned for its third term, but still without a Senate majority. The bill was reintroduced in September, and a vote in the Senate was planned for 7 October. A retired public servant, Ewart Smith, pointed out that the Australia Card Bill was unworkable because the implementation date was a matter of regulation, requiring the concurrence of the Senate alone, which was hostile to the legislation. Even if the bill had been passed by the parliament at a joint sitting, the Senate could still have prevented it ever being implemented in practice. In these circumstances, Hawke decided to abandon the bill.[19][21]

References[edit]

  1. ^ Note: Joint sittings sometimes occur under different circumstances that have nothing to do with S. 57. For example, see Casual Senate vacancies in the representation of the Territories. Also, the Parliament is always opened by the Governor-General (or the Queen when she is visiting Australia) by an address to a joint sitting; the Parliament met in secret joint session on some occasions during World War II; and informal joint sittings are sometimes convened to receive an address by a visiting head of state. For comprehensive details, see Joint meetings of the Australian Parliament.
  2. ^ Government Preference Prohibition Bill 1913
  3. ^ a b "Parliament of Australia: Senate: Publications: Odgers' Guide to Australian Senate Practice - Twelfth Edition - Chapter 21 - Relations with the House of Representatives - Simultaneous dissolutions of 1914". Aph.gov.au. Retrieved 2010-08-26. 
  4. ^ Commonwealth Bank Bill 1950 [No. 2]
  5. ^ a b "Parliament of Australia: Senate: Publications: Odgers' Guide to Australian Senate Practice - Twelfth Edition - Chapter 21 - Relations with the House of Representatives - Simultaneous dissolutions of 1951". Aph.gov.au. Retrieved 2010-08-26. 
  6. ^ Cairns Post, June 26, 1951
  7. ^ a b The six bills were:
    • Commonwealth Electoral Bill (No. 2) 1973
    • Senate (Representation of Territories) Bill 1973
    • Representation Bill 1973
    • Health Insurance Bill 1973
    • Health Insurance Commission Bill 1973
    • Petroleum and Minerals Authority Bill 1973.
  8. ^ Cormack v Cope (1974) 131 CLR 432.
  9. ^ a b "Parliament of Australia: Senate: Publications: Odgers' Guide to Australian Senate Practice - Twelfth Edition - Chapter 21 - Relations with the House of Representatives - Simultaneous dissolutions of 1974". Aph.gov.au. Retrieved 2010-08-26. 
  10. ^ Victoria v. The Commonwealth and Connor (1975) 134 CLR 81
  11. ^ New South Wales v. The Commonwealth (1975) 135 CLR 337
  12. ^ Queensland v. The Commonwealth (1975) 134 CLR 201
  13. ^ Western Australia v. The Commonwealth (1975) 134 CLR 201
  14. ^ Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201 (17 October 1975)
  15. ^ a b The 21 bills were:
    • Health Insurance Levy Bill 1974
    • Health Insurance Levy Assessment Bill 1974
    • Income Tax (International Agreements) Bill 1974
    • Minerals (Submerged Lands) Bill 1974
    • Minerals (Submerged Lands) (Royalty) Bill 1974
    • National Health Bill 1974
    • Conciliation and Arbitration Bill 1974
    • Conciliation and Arbitration Bill (No. 2) 1974
    • National Investment Fund Bill 1974
    • Electoral Laws Amendment Bill 1974
    • Electoral Bill 1975
    • Privy Council Appeals Abolition Bill 1975
    • Superior Court of Australia Bill 1974
    • Electoral Re-distribution (New South Wales) Bill 1975
    • Electoral Re-distribution (Queensland) Bill 1975
    • Electoral Re-distribution (South Australia) Bill 1975
    • Electoral Re-distribution (Tasmania) Bill 1975
    • Electoral Re-distribution (Victoria) Bill 1975
    • Broadcasting and Television Bill (No. 2) 1974
    • Television Stations Licence Fees Bill 1974
    • Broadcasting Stations Licence Fees Bill 1974.
  16. ^ a b "Parliament of Australia: Senate: Publications: Odgers' Guide to Australian Senate Practice - Twelfth Edition - Chapter 21 - Relations with the House of Representatives - Simultaneous dissolutions of 1975". Aph.gov.au. Retrieved 2010-08-26. 
  17. ^ a b The 13 bills were:
    • 9 Sales Tax Amendment Bills (Nos 1A to 9A) 1981
    • Canberra College of Advanced Education Bill
    • States Grants (Tertiary Education Assistance) Amendment Bill (No. 2)
    • Australian National University Amendment Bill (No. 3)
    • Social Services Amendment Bill (No. 3) 1981
  18. ^ a b "Parliament of Australia: Senate: Publications: Odgers' Guide to Australian Senate Practice - Twelfth Edition - Chapter 21 - Relations with the House of Representatives - Simultaneous dissolutions of 1983". Aph.gov.au. Retrieved 2010-08-26. 
  19. ^ a b Roger Clarke (1987). "Just Another Piece of Plastic for your Wallet: The 'Australia Card' Scheme". Xamax Consultancy Pty Ltd. Published in Prometheus 5,1 (June 1987). Republished in Computers & Society 18,1 (January 1988), together with an important Addendum, published in Computers & Society 18,3 (July 1988). Retrieved 23 July 2010. 
  20. ^ "Parliament of Australia: Senate: Publications: Odgers' Guide to Australian Senate Practice - Twelfth Edition - Chapter 21 - Relations with the House of Representatives - Simultaneous dissolutions of 1987". Aph.gov.au. Retrieved 2010-08-26. 
  21. ^ "Parliament of Australia: Senate: Publications: Odgers' Guide to Australian Senate Practice - Twelfth Edition - Chapter 21 - Relations with the House of Representatives - Simultaneous dissolutions of 1987". Aph.gov.au. Retrieved 2010-08-26. 

See also[edit]