Chapter 7 - Parliamentary Control over Parliament
Some prerogative powers of the Crown were written in to section 5 of the Constitution and stated to be exercisable by the Governor-General. They are:
▸ Control over the times at which Parliament sits;
▸ The power to “prorogue” Parliament, which means to suspend its activities; and
▸ The power to dissolve the House of Representatives and cause an election.
These powers prevent our Parliament from fully controlling its own activities. The Advancing Democracy model would remove these powers and grant each House full control over what it does.
Control over When Parliament Meets
If the Governor-General exercises the s.5 powers on the advice of the Government, then it is the Government - the executive - which determines whether Parliament - the legislature - meets or not. When the Government represents the majority in the House of Representatives, it is not unreasonable that it determine the sitting times in the House. But why should it control the sitting times in the Senate? In a dispute between the House and the Senate, this power could be used to prevent the Senate from meeting to discharge its legitimate functions, such as disallowing regulations. For example:
▸ Presently section 12 of the Legislative Instruments Act 2003 states that regulations for most purposes take effect on the date they are registered in the Federal Register of Legislative Instruments, unless a later date is specified in the regulations.
▸ Section 38 requires them to be tabled in each House of Parliament within 6 sittings days of registration. Either House then has 15 days within which to lodge a notice of motion disallowing the regulations, and if the motion is passed or not called on for debate within that time the regulation ceases to have effect: s.42.
▸ If the Government advises the Governor-General to direct the Senate not to sit as soon as the regulations are tabled, and before any notice of motion has been given, the Senate will then have no opportunity to disallow the regulations. (Subsection 42(3) does not overcome this problem). By the time the Senate is next allowed to sit, the Government may well have achieved the objective the regulations sought to achieve.
Scenarios of this kind are unlikely to become commonplace. The partisan use of s.5 is the sort of surprise tactic a Government could use when under pressure to gain an advantage, either by bringing into effect a regulation which does not have the support of the Senate or by preventing scrutiny of its actions by the Senate.
The source of the problem is that powers over the legislature - Parliament - once held by the Crown were ceded to the executive - the Government. It is strange that conservatives who fret about the extent of Government power are quite happy with a Constitution where the remnants of monarchical power are usually exercised by the Government, not Parliament.
So far we have been considering what happens if the Governor-General follows convention and acts on the advice of the Government. The 1975 crisis showed that conventions do not have the force of law. In a contest between the written word and the unwritten rule, the former prevails.
That leaves us with a problem if the Governor-General exercises the s.5 powers in breach of constitutional convention, either without or in defiance of the wishes of the Government. The Governor-General could prevent either House from sitting if he or she did not approve of the business the Houses intended to transact. This is a power which is not likely to be used in isolation, unless perhaps the business the House intended to consider was a motion to investigate or criticise the Governor-General. It is more likely to be used to suppress Parliament as part of action in another dispute, perhaps one of the scenarios set out in Appendix 1.
There is even less justification for an unelected official to dictate when Parliament should sit than there is for the executive to make the decision. Each House should control its own proceedings. This is what the Advancing Democracy model does through proposed sections 6A, 58A(i) and 59A(i).
The proroguing of Parliament ends all business it is transacting. The standing orders make limited provision for the business to be revived in the next session of Parliament. Committee work ceases unless in the decision establishing the committee it was resolved that it continue during any Parliamentary recess (and this has become much more frequently the case in modern times).
In general, the same arguments that apply to control of the sitting times apply with equal force to prorogations. Why should the executive Government, or an unelected person such as the Governor-General, have the power to interfere with what the people’s representatives wish to do if the Parliamentary term has not expired?
The Advancing Democracy model would give each House of Parliament complete autonomy over when it meets. Each House would determine its meeting times by a majority vote: see proposed s.6A.
Dissolution of the House of Representatives
There are similar problems with the power to dissolve the House of Representatives and call an election. Candidates strive for years to be elected, yet once there their terms may be cut short without them having a vote on the matter.
If the Governor-General dissolves the House in accordance with the Prime Minister’s advice, the Prime Minister can call an early House of Representatives election whenever he or she wants. In 1977, 1983 and 1984 Prime Ministers called elections before the House’s three year term expired simply because it maximised their chances of winning a further term in office. Premiers in several States adopted the same approach. The advantage this gives an incumbent Government has been much criticised, and was the origin of proposals for fixed terms of office. Though out of vogue at present, early elections to the advantage of the Government are likely to recur in the future.
The Advancing Democracy model partially overcomes this problem without imposing fixed terms. Unless the House’s three year term has expired, or the House cannot decide for 60 days who should form the Government, the House of Representatives cannot be dissolved except by a majority resolution in favour of a new election: proposed s.58A(iii)(a). This means the Government must convince its backbenchers in marginal seats that an early election is warranted before one can occur.
Section 57 - Disagreement Between the Houses
Each general election is an election of all members of the House of Representatives. However only half the Senators are elected every 3 years, and there is no guarantee that half Senate elections will take place at the same time as the election for the House, (because the voters have twice rejected Constitutional amendments to provide for simultaneous elections).
The only time that all members of both Houses of Parliament face the voters at one time is when there is a double dissolution pursuant to section 57 of the Constitution. Section 57 is the only provision dealing with the resolution of a deadlock between the House of Representatives and the Senate. In summary it provides that if the House twice passes a proposed law which the Senate rejects or fails to pass, and more than 3 months have elapsed between the two attempts, the Governor-General may dissolve both Houses. (This is the only power the Governor-General has to force the Senate to an early election. The power of dissolution in s. 5 does not apply to the Senate). If following the election the House again passes the proposed law and the Senate again rejects or fails to pass it, the Governor-General may convene a joint sitting of both Houses - that is, a meeting of all Senators and members of the House of Representatives, at which the proposed law becomes law if passed by an absolute majority.
There were double dissolutions under s.57 in 1914, 1951, 1974, 1975, 1983 and 1987. However, there has been only one joint sitting, following the 1974 election, in which the Whitlam Government succeeded in having 6 bills passed into law - the bills establishing Medibank, the forerunner of the present Medicare, the bills giving the ACT and Northern Territory representation in the Senate and bills establishing the Petroleum and Minerals Authority. Various conservative State Governments challenged the laws claiming the correct procedure under s.57 had not been followed. The resulting cases are the only opportunity the High Court has had to interpret section 57. (Only the challenge to the PMA legislation succeeded. The cases failed to clarify a number of important issues and section 57 remains open to the criticism that it is a manifestly inadequate way to deal with a deadlock between the two Houses).
The Advancing Democracy model does not attempt to fix most of the problems with section 57. That must be left to another referendum which addresses the balance of power between the House of Representatives and the Senate. This model attempts to remove the Senate’s power to force the Government to an early election by blocking supply while otherwise keeping the balance of power between the houses of Parliament in its present state.
One change to the section is however necessary. There has been debate as to whether by using the words “the Governor-General may dissolve” and “the Governor-General may convene a joint sitting”, the section gives the Governor-General a power to use his or her own discretion, or whether he or she should not dissolve or convene except in accordance with the advice of the Government. (In practice, the Governor-General has followed the Government’s advice on each of the 6 occasions that the section has been implemented).
As democracy requires majority rule, the Advancing Democracy model removes any discretion from the Governor-General, and requires him or her to act in accordance with any request by the majority of the House of Representatives. The words ‘may dissolve / convene’ will be replaced with “must at the request of the House of Representatives” dissolve / convene. Since it is the Representatives which, by persisting with legislation the Senate rejects, is the protagonist in the dispute, it is appropriate that the House decides whether the dispute should be taken as far as a double dissolution and joint sitting.
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