Lining up the Bills: Preparing for a Double Dissolution
Double Dissolutions and Joint Sittings of Federal Parliament
Professor Emeritus Geoffrey de Q. Walker
The Federal Constitution's Approach to Deadlocks
The range of options
All bicameral legislatures must confront the problem that
arises when the two chambers firmly disagree over whether or
not a particular bill should become law. There are several ways
in which constitutions deal with that contingency.
The first approach is to do nothing.
The constitutions of the United States and Canada fall into that
category, leaving deadlocks to be resolved by negotiation and
compromise. This means relying on what Professor Brian Galligan
calls "reflexivity", the development of norms of conduct
that tend to restrain politicians from pushing the system of
government to breakdown.
A second approach is to allow one house, usually the more
numerous one, to carry the day in the event of conflict. Since
the Parliament Act 1911, Britain's unelected House of Lords has
only inconsequential delaying powers which it seldom considers
it worthwhile to use. The United Kingdom thus effectively has
a unicameral parliament.
third solution, and the most democratic one, is to provide that
after two or more rejections by the upper house, the disputed
bill is submitted to a referendum, giving the people as a whole
the final say on whether it should become law. This approach
was advocated at the 1897 federal convention. It was later adopted
by Queensland when that state still had a bicameral legislature, and in a modified form by New South
Wales, where it still applies.
After extensive debate, the Founders
of our federation eventually opted for a fourth way which combined
aspects of the United States and British systems. At the time
it was considered highly innovative. While not giving the House
of Representatives the final say, s 57 of the Constitution does
yield the lower house an advantage if the deadlock-breaking procedure
is pursued to its conclusion, the joint sitting of both houses.
The two to one ratio of representatives to senators established
by s 24 means that when the two
chambers sit together, the more numerous lower house representatives
are more likely to have a majority, especially as large majorities
are rare under the Senate's proportional representation system.
The lower house also enjoys the advantage that only bills originating
in the House of Representatives can trigger the s 57 mechanism.
On the other hand, s 57 creates a protracted, multi-stage process
which is designedly not easy to trigger (partly because it is
the only way in which the Senate, otherwise a continuing body,
can be dissolved). This is intended to encourage negotiation
and compromise of the kind relied on in the United States and
The wording of s 57 has been criticized as imprecise, but
while uncertainties do remain, the essentials of the mechanism
were clarified in a trio of High Court cases that arose under
the Whitlam government.
One potentially important limitation
of the s 57 system should be noted at the outset: it applies
only to Acts, not to regulations or other subordinate legislation.
This means that the Senate's power to disallow regulations is
absolute. A government wishing to use s 57 to enact its legislative
program must ensure that bills are worded in such a way as not
to depend for their efficacy on the making of regulations that
might be disallowed by a hostile Senate. That was the rock that
sank the Hawke government's ID card legislation after a double
dissolution election had been held and a joint sitting was in
The High Court's role
the courts consider the internal proceedings of parliament to
be non-justiciable and will not intervene to ensure compliance
with standing orders or similar rules. But because s 57 establishes
a special law-making procedure with specific requirements, the
High Court takes the view that it has the right and the duty
to intervene if those requirements have not been met. It may
do so at any stage, but will not examine the course of the s
57 process before a proposed law is passed by a joint sitting,
in any case where the proposed law can be declared invalid if
s 57 has not been complied with.
As that will usually be possible, judicial intervention before
the formal enactment of a law will be rare.
the other hand, even if the requirements of s 57 have not been
complied with, the double dissolution, the subsequent election
and any other legislation passed by the new parliament will not
be declared invalid. It is only
the particular Act or Acts passed by the joint sitting that will
be nullified. Further, the Governor-General's exercise of any
discretionary powers under s 57 is non-justiciable.
in the s57 Procedure
1. The House of Representatives passes
a proposed law.
At one time it was thought that
the deadlock procedure could only be activated when the governmental
system was being prevented from working properly, such as when
an appropriation bill was held up. It is now accepted, however,
that it can be invoked in the case of any proposed law.
2. The Senate (a) rejects or (b) fails
to pass the proposed law or (c) passes it with amendments to
which the Representatives will not agree.
the three terms describing negative action by the Senate, "rejects"
is the clearest and describes at least the standard situation
of a motion to pass the bill being lost. "Fails to pass"
is broader and more uncertain, as it describes an omission. The
High Court has interpreted it in the context of the normal pattern
of parliamentary deliberation, so that an adjournment for the
usual Christmas-New Year break will not satisfy the language
of s 57, nor, by itself, would referring the bill to a select
committee. The Senate must be allowed adequate time for deliberation
and debate. But a resolution
postponing the bill's second reading for six months would qualify
as a failure to pass. Under Senate standing orders that is a
traditional way of rejecting a bill and has the effect of finally
disposing of it.
Whether the Senate has failed to pass a bill thus involves
examining its overall treatment of the bill. Justice Stephen
in PMA stated that "No conclusive test can be devised
which, by its application, in all circumstances will provide
a ready answer to the question whether in any particular instance
parliamentary conduct involves a failure to pass for the purposes
of s. 57 ... [T]he methods that may be adopted are various and
may involve no more than the excessive use of otherwise appropriate
and usual parliamentary procedures, filibustering provides an
example; thus it may not be the character of the particular parliamentary
conduct but rather its excessive employment that may identify
it as a failure to pass".
The question is whether there
has been "a calculated use of parliamentary procedures with
a view to delay". That involves considering, among other
things, "the importance, complexity and, perhaps, novelty
of the measure in question".
(Genuine urgency could also be relevant.) The same procedural
step could be regarded as a failure to pass, or not, depending
on the Senate's entire conduct in relation to the bill, Chief
Justice Barwick explained in the same case. Referring a bill
to a select committee was considered mere prevarication in 1951,
but in different circumstances it might not be.
"But it will be the conduct
of the Senate itself", Barwick added, "and not the
conduct or opinions or anticipatory statements of individual
Senators, whatever may be their party standing or party authority,
which can have any relevance to the question". The Court
will look only at the action or inaction of the Senate as a body.
The third possibility, "pass[ing]
it with amendments to which the House of Representatives will
not agree", has not so far presented any problems. It might,
though, if the Senate were to pass a bill so heavily amended
that it could not be regarded as an altered version of the original
but constituted different bill altogether.
3. There is an interval of three months.
The three-month interval is designed as a cooling-off period
to allow for second thoughts on both sides and for enabling public
opinion to come to bear on the issue.
The three-month period is calculated,
not from when the House of Representatives passed the bill, but
from the time of the Senate's negative action, whether rejection,
failure to pass, or passing with amendments with which the Representatives
will not agree. The clock stops
when the House of Representatives passes the bill a second time.
4. The House of Representatives, in the
same or the next session, again passes the proposed law, with
or without any Senate amendments.
For practical purposes we can
ignore the reference to "the same or the next session".
In the 1920s federal parliament abandoned the practice of having
annual sessions that end with prorogation. The practice now is
to have a single session that lasts for the three-year term of
the House of Representatives. It is broken into sittings that
are ended by adjournment, not by prorogation.
It is essential that the proposed law passed a second time
by the House of Representatives should be identical with the
one previously rejected by the Senate, except for any amendments
made by the Senate. The House of Representatives cannot amend
it in any way.
This requirement did not attract much attention until the
1980s, because in previous s 57 processes the government's real
aim was to secure a double dissolution, and the details of the
bills used were of secondary importance.
in 1982 a sales tax bill had to be resubmitted to the Senate
with a built-in commencement date that had already passed because
the date could not be amended in the lower house without destroying
the bill's value as a double dissolution trigger.
Similar considerations led the Hawke government in 1987 to drop
some proposed amendments when it introduced its ID card legislation
for the second time.
Although the requirement of identical
bills has never squarely arisen before the High Court, it was
alluded to by Justice Gibbs in the Territorial Senators
case and is accepted by all
commentators. There is still
a possible question, however, as to whether literal identity
between the two bills is enough. It could happen, for example,
that the second bill, though in terms the same as the first,
could have a substantially different operation because of some
intervening event, such as the repeal of other legislation on
which the effect of the first bill depended.
Would the altered operation of the second bill mean it was no
longer the same proposed law? Governments seeking to use s 57
will need to keep that possible issue in mind.
5. The Senate again rejects or fails to
pass the proposed law, or passes it with amendments to which
the House of Representatives will not agree.
It becomes necessary again to
identify the point at which the Senate defeats the bill, not
for the purpose of measuring a three-month period as in the first
instance, but because that is the point at which the Governor-General's
power to dissolve both chambers arises.
This could present the same problems of identification as the
criteria of rejection raised at the first stage.
It is clear, though, that several
bills can be dealt with simultaneously; there is no need to go
through the same process separately for each one. "One instance
of double rejection suffices" Justice Stephen pointed out
in Cormack v Cope, "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
Nor does there appear to be a
limit to the number of bills - in November 1975, 21 bills had
worked their way through the s 57 process. The High Court has
acknowledged that these interpretations make considerable inroads
into the basic concept of the Constitution which provides for
a bicameral parliament, but considers that reading limitations
of that kind into s 57 would involve a strained and unwarranted
Once the bills have complied with
the steps outlined so far, they can be used at any time to bring
on a double dissolution. There is no need for a current deadlock
or dispute over them. In Territorial Senators, the High
Court held that no disqualification for "undue delay"
could be implied in s 57. Justice Gibbs explained the point in
this way: "If ... the House of Representatives has twice
passed a proposed law and the Senate has twice rejected it, it
is apparent that the two Houses are in disagreement on the question
whether that proposed law should be passed, and it is not correct
to say that they have ceased to disagree simply because some
time elapses during which no action is taken to resolve the disagreement".
The only time limit is the express
one, that a double dissolution cannot be granted if the House
of Representatives term has less than six months to run. Subject
to that, any number of bills can be "stockpiled". Nevertheless,
it is customary for prime ministers in their request to the Governor-General
for simultaneous dissolutions to stress the special importance
of the legislation and the unworkability of the parliament with
the current party numbers.
6. The Governor-General simultaneously
dissolves the Senate and the lower house.
is not clear whether the Governor-General has any independent
discretion in relation to the exercise of the power in s 57.
Two of the Justices in Territorial Senators thought the
power had to be exercised in accordance with the advice of the
Federal Executive Council, meaning
in practice the prime minister. But the lack of any reference
to the Council in s 57, together with the use of the verb "may",
rather suggests the opposite. Certainly, Justice Stephen, when
he became Governor-General, took the view in relation to the
1983 and 1987 double dissolutions that he had an independent
discretion and that the government had to make out some sort
At all events, in practice all six requests for double dissolutions
made to date have been granted.
7. A general election for both houses takes
If the government is defeated at the election, the question
lapses. If it is re-elected with control of the Senate, s 57
becomes irrelevant. If it still lacks that control, the proposed
law or laws proceed to the next stage.
8. The newly-elected House of Representatives
passes the proposed law, with or without any Senate amendments.
9. The newly-elected Senate rejects or
fails to pass the proposed law, or passes it with amendments
to which the House of Representatives will not agree.
The lower house's rejection of
the Senate's amendments will need to be evidenced by a resolution
of some kind; a mere statement to that effect by the prime minister
will not be enough.
10. The Governor-General convenes a joint
sitting of the two houses.
Only one joint sitting has so
far been held, and that was the 1974 one, which was challenged
in Cormack, Territorial Senators and PMA. The Governor-General's
decision to convene a joint sitting has so far been made on the
advice of the prime minister (nominally the Federal Executive
Council), though the same argument
can be made for the existence of an independent discretion as
in the case of the dissolution of both houses. It is hard, however,
to imagine how a Governor-General could justify denying a joint
sitting if the legal prerequisites had been met.
The Governor-General has no power
to proclaim what is to be voted on at the joint sitting or otherwise
to control its agenda. In calling the 1974 joint sitting the
Governor-General erred in that respect, but the defect was held
not to have affected the proclamation's validity.
11. The members of the Senate and the house
of Representatives at the joint sitting deliberate and vote together
on the proposed law as last proposed by the Representatives,
and any amendments; if the proposed law with amendments is affirmed
by an absolute majority of the total membership, it is taken
to have been duly passed by both houses.
The most difficult problem at this stage relates to the amendments
that may be put to the vote at the joint sitting. The section
in terms requires the joint sitting to vote on the bill "and
upon amendments, if any, which have been made therein by one
House and not agreed to by the other". There are several
views as to what that might mean:
(i) One view is that any amendment
by either house proposed at any stage can be put to the joint
sitting. This broad interpretation is open to the objection that
it seriously weakens the position of the less numerous Senate.
(ii) A second possibility is that
the House of Representatives could amend the bill during the
period following its third Senate rejection but before the joint
sitting. This is thought to be inconsistent with the requirement
that the bill maintain its identity throughout the process.
(iii) Thirdly, the clause could
mean that the House of Representatives is able to propose amendments
during the third passage of the bill, and those amendments may
be put to the joint sitting.
This is perhaps the view most likely to commend itself to the
present High Court, as it gives the language of s 57 full operation
according to its tenor while allowing the Senate a proper opportunity
to consider in the normal way a serious list of government amendments,
excluding possible wildcat proposals floated for a variety of
reasons at earlier stages.
The bill and amendments will pass if they are supported by
an absolute majority, that is, a majority of the total number
of representatives and Senators entitled to vote, whether actually
present and voting or not.
12. The proposed law is then presented
to the Governor-General for assent.
This completes the process. The bill has now become law.
The machinery established by s
57 has proved to be a workable means of resolving deadlocks between
the two houses of federal parliament. Some argue that it has
never been used, and is never likely to be used, as a means of
solving a dispute over specific legislation, but as a means of
obtaining an early election.
But as some politicians now realize, the voters resent the blatant
manipulation involved in early elections and are liable to punish
an opportunist government that seeks an advantage in that way.
Today a government is more likely to have the genuine goal of
overcoming what it sees as Senate obstructionism.
Court's interpretation of s 57 has had the effect of making the
section somewhat easier to invoke than it was earlier believed
to be. While that can be seen as making the Senate more accountable
for its actions, it has also
given governments what amounts to a de facto power to dissolve
the Senate, a power they were never meant to have. That in turn
has increased the executive's control over parliament,
a control that has made the concept of "responsible government"
into a legal fiction. All things considered, the referendum option
canvassed at the 1897.
Steps in the s 57 Process
1. The House of Representatives passes a proposed law.
2. The Senate (a) rejects or (b) fails to pass the proposed
law or (c) passes it with amendments to which the Representatives
will not agree.
3. There is an interval of three months.
4. The House of Representatives, in the same or the next session,
again passes the proposed law, with or without any Senate amendments.
5. The Senate again rejects or fails to pass the proposed
law, or passes it with amendments to which the House of Representatives
will not agree.
6. The Governor-General simultaneously dissolves the Senate
and the lower house - no later than 6 months before the expiry
of the House of Representatives' term.
7. A general election for both houses takes place.
8. The newly-elected House of Representatives passes the proposed
law, with or without any Senate amendments.
9. The newly-elected Senate rejects or fails to pass the proposed
law, or passes it with amendments to which the House of Representatives
will not agree.
10. The Governor-General convenes a joint sitting of the two
11. The members of the Senate and the House of Representatives
at the joint sitting deliberate and vote together on the proposed
law as last proposed by the Representatives, and any amendments;
if the proposed law with amendments is affirmed by an absolute
majority of the total membership, it is taken to have been duly
passed by both houses.
12. The proposed law is then presented to the Governor-General
Brian Galligan, "Federal Renewal, Tax Reform and the States"
(1998) 10 Upholding the Australian Constitution 221, 237-38.
Parliamentary Bills Referendum Act 1908 (Qld., repealed).
Act 1902 (NSW) s 5B.
statute, Territory senators are not counted in the calculation
of the two to one ratio.
Carney, "Section 57 of the Constitution - the Sixth Double
Dissolution" (1989) 18 Fed. L. Rev. 178, 179.
v Cope (1974) 131 CLR 432, 452-54, 464-65, 466-67; Victoria v
Commonwealth (Petroleum and Minerals Authority ("PMA")
Case) (1975) 134 CLR 81, 118-20, 156-57, 163-64, 178-80, 183-84;
Odgers' Australian Senate Practice, Harry Evans ed., Department
of the Senate, Canberra, 10th edn. 2001, 86.
S. Ratnapala, Australian Constitutional Law: Foundations and
Theory, Oxford University Press, South Melbourne 2002, 62.
PMA case, 134 CLR at 120, 157, 178, 184; Ratnapala, n 7 above,
P.H. Lane, Lane's Commentary on the Australian Constitution,
2nd edn., LBC, Sydney 1997, 408; Ratnapala, n 7 above, 62.
 19 Laws of Australia, LBC,
Odgers, n 6 above, 84-85; G. Moens, J. Trone, Lumb
and Moens's Annotated Constitution of the Commonwealth of Australia,
6th edn., Butterworths, Chatswood NSW 2001, 204.
PMA case, 134 CLR at 124, 154-55, 170, 187; Lumb and Monens,
n 11 above, 204.
PMA , 134 CLR at 116, 121, 145.
PMA, 134 CLR at 171-72.
PMA, 134 CLR at 122, 150-52.
Colin Howard, Australian Federal Constitutional Law, 3rd
edn., Law Book Co, North Ryde NSW 1985, 101.
PMA case, 134 CLR at 124, 154-55, 170, 187.
Odgers, n 6 above, 167-68.
Carney, n 5 above, 182.
Western Australia v Commonwealth (Territorial Senators case)
(1975) 134 CLR 201, 237.
Carney, n 5 above, 180.
C.K. Comans, "Constitution, s 57 - Further Questions"
(1985) 15 Fed. L. Rev. 241.
Howard, n 16 above, 106.
Cormack v Cope, 131 CLR at 469; see also 456, 463-64, 468, 474.
Cormack, 131 CLR at 456; Territorial Senators, 134 CLR at 251.
134 CLR at 236, see also 265; but see Stephen J's qualification
Odgers, n 6 above, 84-85.
134 CLR at 278, 293; see Ratnapala, n 7 above, 64.
Peter Hanks, Constitutional Law in Australia 2nd edn.,
Butterworths, North Ryde NSW 1996, 126; Lane, n 9 above, 409.
Cf. Odgers, n 6 above, 87; Howard, n 16 above, 104.
Howard, n 16 above, 108.
Cormack, 131 CLR at 458-59, 462-63, 468, 471.
Carney, n 5 above, 184.
Howard, n 16 above, 106.
Odgers n 6 above, 117; cf. Ratnapala, n 7 above, 62-63.
Odgers, n 6 above, 117.