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High Court of Australia |
VICTORIA v. THE COMMONWEALTH AND CONNOR ;
NEW SOUTH WALES v. THE COMMONWEALTH ;
QUEENSLAND v. THE COMMONWEALTH ;
WESTERN AUSTRALIA v. THE COMMONWEALTH [1975] HCA 39; (1975) 134 CLR 81
Constitutional Law (Cth)
High Court of Australia
Barwick C.J.(1), McTiernan(2), Gibbs(3), Stephen(4), Mason(5) and Jacobs(6)
JJ.
CATCHWORDS
Constitutional Law (Cth) - Parliament of the Commonwealth - Deadlock between Houses - Joint sitting of members of Senate and of House of Representatives - Rejection or failure to pass proposed law by Senate - Interval of three months to elapse before House of Representatives passes proposed law second time - Whether interval measured from Senate's rejection or failure to pass or from first passing by House of Representatives - Proclamation of Governor-General convening joint sitting - Whether conclusive of due compliance with constitutional requirements - Justiciability - Whether requirements mandatory or directory - Royal assent to Bill - Whether a valid Act - The Constitution (63 & 64 Vict. c. 12), s. 57 - Petroleum and Minerals Authority Act 1973 (Cth).
HEARING
Melbourne, 1975, February 24-27.DECISION
September 30.
2. The State of Victoria and the Attorney-General for the State of Victoria
("the plaintiffs") have sued in this Court for a declaration
that the Bill as
thus affirmed, and to which the Queen's assent has been given, is not a valid
law of the Commonwealth for the reason
that at the time of the joint sitting
it was not a "proposed law" within the meaning and operation of s. 57 of the
Constitution. (at p109)
3. The plaintiffs claim that, having been passed by the House of
Representatives and rejected by the Senate, an interval of three
months
thereafter had not elapsed before it was again passed by the House of
Representatives as required, according to the plaintiff's
submission, by s.
57. Accordingly, it was claimed that it was not a proposed law which could
properly be submitted to a joint sitting following upon a
double dissolution
of the Houses of the Parliament. (at p109)
4. No challenge was made in the suit by the plaintiffs to the propriety or
the validity of the double dissolution consequent upon
which the joint sitting
had been held, or to the validity of the joint sitting itself. The question
raised was simply that the Senate
had not rejected or failed to pass the Bill
three months or more before the House of Representatives had again passed the
proposed
law. Put another way, at the date of the simultaneous dissolution of
the House of Representatives and the Senate, the Bill did not
satisfy the
requirements of the first paragraph of s. 57, and thus could not itself have
afforded a reason for that dissolution or be the subject of debate and
affirmation at a joint sitting.
(at p110)
5. The Commonwealth contested this proposition. Its defence to the suit was
that, upon the proper construction of s. 57, the Bill did comply with the
description of a proposed law for the purpose of the joint sitting, and that
in any case the question
raised by the plaintiff was not justiciable. I shall
later refer to the detail of this defence. (at p110)
6. The plaintiffs by summons before a Justice of the Court had sought to
strike out portions of the statement of defence as being
embarrassing and
calculated to delay the fair trial of the suit: but the plaintiffs also
demurred to the statement of defence.
My brother Stephen heard the summons
and pursuant to s. 18 of the Judiciary Act 1903-1969 reserved for the
consideration of the Court
a number of questions as follows:
"1. Whether par. 6(c) of the defendants' defence should be
struck out on the ground that the allegations contained
therein are, within the meaning of O.20, r.29 of the
High Court Rules, unnecessary or may tend to prejudice
embarrass or delay the fair trial of the action.
2. Whether the whole of the said defence ought to be struck
out pursuant to O.26, r. 18 of the said Rules on the
ground that it does not disclose a reasonable answer to
the plaintiffs' claim.
3. Whether pursuant to O.26, r.5(2) of the said Rules the
issues of fact in the action should be disposed of before
the demurrer." (at p110)
7. Each of the States of New South Wales, Queensland and Western Australia
commenced similar suits against the Commonwealth for
the same declaration of
invalidity. The statement of defence to each of the statements of claim in
these suits was in substance
in the same terms as those in the suit brought by
the plaintiffs. Summonses to strike out portions of the pleading were issued
on
behalf of these three States and came on to be heard before my brother
Stephen along with the summons issued by the plaintiffs.
In respect of each
of those summonses, like questions were submitted to the Court. However, none
of these three States demurred
to the statement of defence filed in its suit.
(at p111)
8. Upon the questions coming on for hearing before the Full Court, it was
decided that the proper course was to hear the plaintiffs'
demurrer giving
each of the other States leave to intervene in the argument thereon. The
Court indicated that, in the event that
the demurrer was not upheld, the
parties would remain in the position in which they presently stood in relation
to the pleadings
including their ability to amend, subject of course to the
consequences of anything the Court might relevantly say in its decision
on the
demurrer. (at p111)
9. In order to make my reasons comprehensible by a person who does not have a
copy of the Constitution of Australia beside him, I think it will be
convenient, even at the expense of lengthening the text, to set out the terms
of ss. 57 and 58 and part of s. 128 of the Constitution, and at a later stage
to set out those portions of the Standing Orders of the Senate to which
reference was made in argument and
which may have some bearing upon the result
of the demurrer. (at p111)
10. Section 57 of the Constitution is as follows:
"57. 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.
If after such dissolution the House of Representatives
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 convene
a joint sitting of the members of the Senate and of the
House of Representatives.
The members present at the joint sitting may deliberate
and shall vote together upon the proposed law as last proposed
by the House of Representatives, and upon amendments,
if any, which have been made therein by one House
and not agreed to by the other, and any such amendments
which are affirmed by an absolute majority of the total number
of the members of the Senate and House of Representatives
shall be taken to have been carried, and if the proposed
law, with the amendments, if any, so carried is affirmed by
an absolute majority of the total number of the members of
the Senate and House of Representatives, it shall be taken
to have been duly passed by both Houses of the Parliament,
and shall be presented to the Governor-General for the
Queen's assent." (at p112)
11. Section 58 is as follows:
"58. When a proposed law passed by both Houses of the
Parliament is presented to the Governor-General for the
Queen's assent, he shall declare, according to his discretion,
but subject to this Constitution, that he assents in the
Queen's name, or that he withholds assent, or that he reserves
the law for the Queen's pleasure.
The Governor-General may return to the house in which
it originated any proposed law so presented to him, and may
transmit therewith any amendments which he may recommend,
and the Houses may deal with the recommendation." (at p112)
12. Because of the similarity in the language and also of what I conceive to
be the purpose behind its use, it is important to have
in mind the provisions
of s. 128 of the Constitution which deals with its alteration. (at p112)
13. Section 128 says that the Constitution shall not be altered except in the
specified manner. The first paragraph of the section provides for a passage
of a proposed law
for the alteration of the Constitution by each House. The
second paragraph of s. 128 provides as follows:
"But if either House passes any such proposed law by
an absolute majority, and the other House rejects or fails
to pass it, or passes it with any amendment to which the
first-mentioned House will not agree, and if after an interval
of three months the first-mentioned House in the same or the
next session again passes the proposed law by an absolute
majority with or without any amendment which has been
made or agreed to by the other House, and such other
House rejects or fails to pass it or passes it with any amendment
to which the first-mentioned House will not agree, the
Governor-General may submit the proposed law as last proposed
by the first-mentioned House, and either with or without
any amendments subsequently agreed to by both Houses,
to the electors in each State qualified to vote for the election
of the House of Representatives." (at p112)
14. It is now necessary to recite the relevant chronology. The Bill was
passed by the House of Representatives on 12th December
1973. On the next
day, the Speaker transmitted the Bill to the Senate with a covering message in
accordance with Standing Order
243 of the Standing Orders of the House of
Representatives, requesting the concurrence of the Senate in the Bill. (at
p113)
15. Standing Order 231 of the Standing Orders of the Senate provides that
Public Bills, which this Bill was, coming to the Senate
for the first time
from the House of Representatives shall be proceeded with in all respects as
similar Bills presented in pursuance
of Orders of the Senate. (at p113)
16. According to Standing Order 189 of the Standing Orders of the Senate, on
receipt of the Bill, the question that the Bill be
now read a first time shall
immediately be put by the President. This question is to be determined without
amendment or debate. Standing
Order 191 provides that for the reading of the
Bill, the title only shall be read. (at p113)
17. After the first reading a future day is usually appointed upon motion for
the second reading of the Bill which, in the meantime,
is printed. In the
ordinary course, an interval of one day must elapse after the receipt of the
Bill from the House of Representatives
seeking the concurrence therein of the
Senate, before the commencement of a debate on its second reading, and a
period of three days
is necessary before the Bill could pass all stages. See
Standing Orders 192, 197, 211 and 213. (at p113)
18. However, by Standing Order 448, it is provided:
"In cases of urgent necessity, any Standing or SessionalThus, a motion for the suspension of Standing Orders may be made without notice as under Standing Order 448 where the provisions of that Standing Order apply. If, on the other hand, the motion for suspension is on notice which has appeared on the notice paper, then the motion may be carried by a majority of voices: see Standing Order 449. It is provided by Standing Order 450 that the suspension of Standing Orders shall be limited in its operation to the particular purpose for which such suspension has been sought. (at p113)
Order or Orders of the Senate may be suspended on Motion,
duly made and seconded, without Notice: Provided that
such Motion is carried by an absolute majority of the whole
number of Senators."
19. The 13th December 1973, the day on which the Bill was transmitted by the
House of Representatives to the Senate, was the last
day on which the Senate
was likely to sit in 1973 before adjourning until the Autumn Session: a fact
most certainly known to the
House of Representatives. It ought to be observed
that it is the practice of the Parliament to have two sessional periods each
year,
an Autumn Session beginning normally in February and a Spring Session
beginning in general on some day in August. (at p114)
20. Standing Order 92 of the Standing Orders of the House of Representatives
makes provision for an occasion when a Minister may
declare that a Bill is an
urgent Bill. This declaration, as would a declaration under Senate Standing
Order 407B, would open the
way to limitation of debate upon its provisions.
Whether or not resort was had to this Standing Order of the House of
Representatives
in relation to the Bill does not appear, though perusal of the
parliamentary debates (see Weekly Hansard for the House of Representatives
no.
25, 12th December 1973, at pp. 4628, 4633) might suggest that some limitation
of debate of the Bill was imposed in the House.
(at p114)
21. There is no specific provision in the Standing Orders of either House
whereby the House of Representatives may request the Senate
to treat a Bill
transmitted to it as an urgent Bill. But it may be that a message requesting
urgency may be sent by the House to
the Senate. (See J.R. Odgers: Australian
Senate Practice, 4th ed. (1972), p. 509.) However, no such message was sent.
(at p114)
22. However, on the day of the receipt of the Bill the Senate duly resolved
to suspend Standing Orders in order to permit the Bill
to pass through all its
stages "without delay". This resolution of the Senate made it possible for a
motion for the second reading
of the Bill to be made that day if notice of
motion therefor had been given, whereas, but for the suspension of the
Standing Orders,
no motion for the second reading could have been made until
at least the following day. A contingent notice of motion for a second
reading of the Bill had been given by a Senator before the receipt of the Bill
from the House of Representatives. It was thus possible
on 13th December to
move the second reading of the Bill. But the Bill was not declared an urgent
Bill pursuant to Standing Order
407B of the Standing Orders of the Senate. (at
p114)
23. The pleadings show that a motion was made on 13th December by the
senator, who was the Leader of the Government in the Senate
and who had given
contingent notice of that motion, that the Bill be now read a second time.
The pleadings further show that the
debate upon this motion was adjourned, on
the motion of an Opposition senator, its resumption being made an order of the
day for
a later time that day. It must be understood that it is regular form
in the case of a motion not on the order paper for the day,
for its
consideration to be made an order of the day. (at p114)
24. When the motion was called on in due course on 13th December, there was a
motion by the Opposition that the debate on the motion
be adjourned and the
resumption of the debate be an order of the day for the first sitting day in
February 1974. Standing Order 434
provides that a debate may be adjourned
either to a later hour of the same day, or to any other day. Standing Order
435 provides
that the Senator, upon whose motion any debate is adjourned,
shall be entitled to pre-audience on the resumption of the debate.
The
securing by the Opposition of the adjournment of the debate of a motion by a
Minister or Government senator for a second reading
is standard parliamentary
practice. The mover of the motion for a second reading may explain the
principle of the Bill unless he
feels that, as it has come from the other
House, its purposes are already sufficiently known. In the case of the Bill,
the text
of the second reading speech in the House of Representatives was by
leave incorporated in the proceedings of the Senate. The adjournment
of the
debate is to enable members or senators, as the case may be, to consider the
provisions of the Bill and to prepare for debate.
It is said to be customary
for the selection of the day for the resumption of the debate to be the
privilege of the mover of the
motion for the second reading. In this instance
the debate was adjourned to a day nominated by an Opposition senator. But
nothing,
in my opinion, turns on this departure from practice, if indeed it
should be regarded as such. (at p115)
25. According to the assertions of fact in the statement of defence, which
upon demurrer must be taken to have been admitted for
the purposes of
demurrer, certain statements were made by individual members of the Senate
during proceedings on 13th December. Two
sub-paragraphs of par. 6 of the
statement of defence sufficiently indicate the general nature of these
assertions:
"(c)(ii) The statements of opinion and intention expressed
in pars (iii) to (xxix) hereof were the opinions and
intentions held by all members of the Opposition parties in
the Senate on 13th December 1973 as well as prior to and
after that date and were on 13th December 1973 given
effect to by the resolution referred to in par. 10 of the
statement of claim.
(c)(iii) Upon the resumption in the Senate of the debate
upon the motion (as alleged in par. 10 of the statement of
claim), at a later hour of the day, namely 13th December
1973, the said Senator Durack said in the Senate the words
following, that is to say - 'As I think is probably well known,
it is the intention of the Liberal Party Opposition to oppose
totally this Bill, and it will be voting against it.'" (at p116)
26. In the sub-pars referred to, in (c)(ii) above there are a number of
statements attributed to party leaders in the Senate to
the effect that it was
the Opposition's intention by rejection of certain measures to pave the way
for a double dissolution. It
was these assertions of fact which were sought
to be struck out of the statement of defence: see the first question reserved
for
the consideration of the Full Court. (at p116)
27. On 13th December 1973 the Senate resolved that at its rising that day,
the Senate be adjourned to a day and hour to be fixed
by the President, such
day and hour to be notified to each senator by telegram or letter. This is
the usual course taken on the
adjournment of the Senate to the next sessional
period. In fact, the day subsequently fixed for the resumption of the Senate
was
28th February 1974. (at p116)
28. On 14th February 1974 the Governor-General duly prorogued the Parliament
till 28th February 1974. On the prorogation of the
Parliament, Bills then
before the House and then before the Senate lapsed, but might be proceeded
with and restored to the notice
paper by resolution of the House in possession
of the Bill and when in receipt of the consent of the originating House. (See
Odgers,
op. cit., at p. 288.) (at p116)
29. On 7th March 1974 the House of Representatives resolved that a message be
sent to the Senate requesting the Senate to resume
consideration of the Bill.
Accordingly, such a message was sent to and received by the Senate, the
message including the statement
"the proceedings on such Bill having been
interrupted by the Prorogation of the Parliament" (see Standing Order 243).
The Senate
concurred in the resumption of the consideration of the Bill.
Consequently, the motion for the second reading of the Bill was debated
by the
Senate on and after 19th March. On 2nd April, the Senate negatived the
motion. On 8th April, the House of Representatives
again passed the Bill,
which on the same day was transmitted to the Senate for its concurrence. On
10th April, upon a motion made
on 8th April for a second reading of the Bill,
the Senate resolved that the Bill for a number of reasons be deferred "till
this day
six months": see Standing Order 194 of the Standing Orders of the
Senate. The Bill was thus finally rejected by the Senate on 10th
April 1974.
(at p116)
30. I have now sufficiently set out the relevant chronology. (at p116)
31. The plaintiffs submit that upon the true construction of s. 57, the
interval of three months referred to in the first paragraph
of the section is
a period which begins at the time at which the Senate rejects, or fails to
pass, or passes with amendments which
ultimately proved unacceptable to the
House of Representatives; that the Senate had not rejected the Bill, failed to
pass it or passed
it with unacceptable amendments before 2nd April 1974; and
that, unless the interval of three months had elapsed thereafter before
the
House again passed the Bill, it would not qualify as a proposed law for the
purposes of the third paragraph of s. 57. (at p117)
32. The submissions of the defendants are:
"(A) That the resolutions and orders of the Senate on
13th December 1973 without more may amount to a rejection
or failure by it to pass the proposed law.
(B) That in determining whether the Senate rejected or
failed to pass any proposed law regard may be had not only
to any relevant resolutions of the Senate but to all relevant
facts. Speeches of senators within the Senate may be such.
Statements whether by senators or others outside the Senate
may also be relevant. All the sub-paragraphs of par. 6(c) of
the defence contain relevant facts.
(C) That the interval of three months referred to in s. 57
is from the first passing of the proposed law by the House
of Representatives.
(D) That the words of condition in the first paragraph
of s. 57 are used in a directory sense.
(E) Statement of claim raises non-justiciable issues." (at p117)
33. The Commonwealth in the last submission advanced an argument of great
significance. The submission was that this Court has
no power to declare that
a law which had not been passed in accordance with the law-making requirements
of s. 57 of the Constitution was invalid, a submission somewhat akin to,
though not identical with, but of like consequence to, a submission which had
been made
by the Commonwealth in Cormack v. Cope [1974] HCA 28; (1974) 131 CLR 432 . (at
p117)
34. It is as well that I should deal, first, with this large proposition of
the Commonwealth. It was, of course, conceded that
the Court may declare
invalid a law which does not fall within one of the topics assigned to the
Parliament by the Constitution. But it was claimed that as long as an Act has
received the Royal assent the Court cannot entertain the question whether it
was
passed in accordance with the constitutional requirements relating to the
law-making processes. The argument had two distinct bases:
first, that the
question whether the constitutional law-making processes had been followed is
not in any case a justiciable matter;
second, that the decision of the
Governor-General that the Bill was a proposed law within the operation of s.
57, a decision to be
implied from his assent to the Bill, was decisive and
unexaminable by the Court. There was another somewhat cognate
submission,
namely,
that in any case the provisions of s. 57 are directory only, so that
failure to observe them will not produce invalidity. (at p118)
35. The argument presented on behalf of the Commonwealth in the interlocutory
proceedings in Cormack v. Cope was of a different
kind, though, as I have
said, bent to the same conclusion as to the Court's competence. It was not
repeated in terms in this case
and in any case, for my part, it is
sufficiently dealt with in that case. But the undeniable assertion there made
that this Court
is the guardian of the Constitution, and the authorities there
cited, are fully relevant to the resolution of the submissions made in this
case. Part of that Constitution provides for law-making processes. Section
57 is a notable example of that prescription. The Court, in my opinion, not
only has the power but, when approached by a litigant with
a proper interest
so to do, has the duty to examine whether or not the law-making process
prescribed by the Constitution has been followed and, if it has not, to
declare that that which has emerged with the appearance of an Act, though
having received
the Royal assent, is not a valid law of the Commonwealth.
Whether the Court should intervene before the Bill has received the Royal
assent is a matter which does not now arise. I have already expressed my
opinion that the Court has power to do so. Indeed, the
Supreme Court of New
South Wales did intervene before assent in Trethowan v. Peden (1930) 31 SR
(NSW) 183 without any dissent by
the Privy Council. So much was also conceded
in McDonald v. Cain [1953] VicLawRp 62; (1953) VLR 411, at pp 419, 426, 438 . However, I would
like to
add that I agree entirely with Lord Diplock in his view of the
observations made in Clayton v. Heffron [1960] HCA 92; (1960) 105
CLR 214, at p 235
. It is
one thing by judicial restraint not to exercise a power, and quite another
thing to deny the
existence
of the power. I agree
with his Lordship when he
says in substance that the decision not to exercise a power in point of
discretion
is indeed an exercise
of the power. See Rediffusion (Hong Kong)
Ltd. v. Attorney-General (Hong Kong) (1970) AC 1136,
at p 1156 .
(at p118)
36. But the Bill has received Royal assent. The majority of the Justices who
participated in Cormack v. Cope [1974] HCA 28; (1974)
131 CLR 432
clearly were of opinion
that when a Bill affirmed at a joint sitting had received the assent, it could
be declared
invalid
by the
Court if the provisions of s. 57 had not been
observed. In my reasons for judgment in Cormack v. Cope (1974) 131 CLR, at p
452 .
I referred to the authoritative
statement of Lord Pearce in Bribery
Commissioner V. Pedrick Ranasinghe [1964] UKPC 1; (1965) AC 172, at p 198 .
I have no need
to repeat what I
there said or cited. Nor is there need, in my opinion, for
further citation,
though I should remark
that nothing said in Clayton
V.
Heffron [1960] HCA 92; (1960) 105 CLR 214 , in my opinion, casts any doubt on the Court's
power to declare the invalidity
of
that which does not conform
to
Constitutional requirements. (at p119)
37. The defendants' further submission was that the "decision" of the
Governor-General that the Bill was one which could be affirmed
at the joint
sitting and, thereafter, that it was proper for the receipt of the Royal
assent, was not examinable by the Court and
was decisive of the validity of
the Act. In other words, it was submitted that the Governor-General had the
power unexaminably to
decide whether or not the conditions of s. 57 had been
satisfied. With that submission I express my complete disagreement. The
powers
given to the Governor-General by s. 57 are statutory powers - the
statute being an organic instrument - conditioned on the existence
of facts.
Any prerogatives in relation
to the dissolution of Parliament which otherwise
have been thought to exist would be conditioned
and controlled by the express
terms
of the Constitution. They are not in any wise conditioned on the
Governor-General's opinion as to the facts. I can see no basis on which the
Constitution can be read as giving the Governor-General a power to decide the
facts on which the legality of his own actions or the validity of
an Act may
depend. Of course, the Governor-General must form a view for himself as to
whether the circumstances of the proposed law
satisfy the requirements of the
first paragraph of s. 57. But his power is contingent on the existence in
fact of the conditions
which that paragraph expresses: in my opinion, the
power
to decide the fact is reposed in this Court and in this Court alone.
That
is a facet of the undoubted position of the Court as the
guardian of the
Constitution. (at p119)
38. The defendants made a related submission that the terms of s. 57 are
directory only. But there is no room, in my opinion, for the view that the
terms of s. 57 are merely directory so that failure to conform to its
requirements will not affect the validity of what is done. What is laid down
in s. 57 is a process of law-making, and s. 57 is a provision of the
Constitution. It is quite inappropriate, in my opinion, to apply to such a
section the distinctions between a directory and a mandatory statutory
provision. The Court's decision in Clayton v. Heffron does not support a
contrary conclusion: nor does the reasoning of the majority.
(at p120)
39. Argument was presented to the Court as to what would be involved when the
Governor-General dissolved the House without having
the power so to do under
the Constitution: that is to say, if he erroneously concluded that the
conditions existed on which his power to dissolve depended. The dissolution
itself is a fact which can neither be void nor be undone. If, without having
power to do so, the Governor-General did dissolve both
Houses, there would be
no basis for setting aside the dissolution or for treating it as not having
occurred. None the less, the
double dissolution would not have been
authorized, and therefore it would not satisfy the second paragraph of s. 57
and provide a warrant for a joint sitting. The joint sitting, pursuant to the
third paragraph of that section, which was dependent
upon such a dissolution,
which, though not void, was not lawful, would not have power to affirm any
law. It is not necessary, in
my opinion, to regard any part of s. 57 as
directory in order to conclude that, though the proclamation be unlawful, the
sequential dissolution in fact occurred and was
incapable of being
disregarded, reversed or undone. (at p120)
40. The Court, in my opinion, has jurisdiction to entertain this suit and, if
the occasion is proper, to make a declaration of validity
or of invalidity as
the case may be. (at p120)
41. I turn next to the question whether the Senate on 13th December 1973
failed to pass the Bill. The argument for the Commonwealth
really treats the
Senate's adjournment on 13th December of the debate of the motion for a second
reading of the Bill as no more than
a prevarication. To the fact of the
adjournment are added a number of circumstances. To these I shall immediately
make reference.
(at p120)
42. A minor matter amongst these circumstances was the suggested failure of
the Senate to give effect to the word "now" in the motion
that the Bill be now
read the second time. But the criticism was misconceived. The first step in
the process of a second reading
of a Bill is a notice of motion. Then the
motion is entered on the order paper. (at p120)
43. When called on, the motion is debated to a conclusion either on one
occasion, or after one or more adjournments of the debate
of the motion. When
the time comes to put the question which the motion raises, that is to say,
when further debate is not desired
or after a resolution that the question be
put, the question that is put by the Presiding Officer is that the Bill be now
read a
second time; that is to say, the word "now" relates to the point of
time at which the question is put; it gets its only significance
from that
point of time. On the motion being carried, the Clerk then reads the title of
the Bill (Standing Order 191). (at p121)
44. There was also some discussion in argument as to what was the effect of
an amendment to the motion to remove the word "now".
Standing Order 194
provides that amendment may be made to a motion that the Bill be now read a
second time by leaving out the word
"now" and adding the words "this day six
months" which, if carried, shall finally dispose of the Bill. Standing Order
195 provides
that no other amendment may be made to such a motion except in
the form of a resolution which is strictly relevant to the Bill; i.e.
to its
operative provisions. Thus, there is no ability to change the form of the
question to be put on the motion for a second reading
other than an amendment
which would kill the Bill. (at p121)
45. Nothing in the course of procedure in the Senate on 13th December lends
any support, in my opinion, to the proposition that
the Senate failed to pass
the Bill on 13th December. (at p121)
46. In its approach to the question whether the Senate had failed in the
relevant sense to pass the Bill on 13th December, the Commonwealth
consistently asserted that the purpose of s. 57 was to enable the will of the
House of Representatives always, and, indeed inevitably,
to prevail, and from
this it seemed to be suggested that the House of Representatives was entitled
to an immediate answer from the
Senate when on 13th December it sought the
Senate's concurrence to the Bill. (at p121)
47. It seems to me that this submission is untenable. The Senate is a part
of the Parliament and, except as to laws appropriating
revenue or money for
the ordinary annual services of the Government or imposing taxation, is
co-equal with the House of Representatives.
Bills may originate and do
originate in the Senate. Section 53 of the Constitution makes it abundantly
clear that the Senate is to have equal powers with the House of
Representatives in respect of all laws other
than those specifically excepted.
The only limitations as to the equality of the powers of the Senate with those
of the House of
Representatives are those imposed by the first three
paragraphs of that section, to the terms of which the limitations must be
confined.
(at p121)
48. It is evident from the terms of the Constitution that the Senate was
intended to represent the States, parts of the Commonwealth, as distinct from
the House of Representatives which
represents the electors throughout
Australia. It is often said that the Senate has, in this respect, failed of
its purpose. This
may be so, due partly to the party system and to the nature
of the electoral system: but even if that assertion be true it does
not
detract from the constitutional position that it was inended that proposed
laws could be considered by the Senate from a point
of view different from
that which the House of Representatives may take. The Senate is not a mere
house of review: rather it is
a house which may examine a proposed law from a
stand-point different from that which the House of Representatives may have
taken.
(at p122)
49. That a Bill needs consideration and debate is beyond question, though one
cannot but observe that due to the dominance of the
executive in the House of
Representatives and perhaps, at times, in the Senate, opportunity for debate
may be very attenuated. But,
whatever the exigencies of party politics, the
Constitution cannot be read as if laws ought to be passed by the Senate
without debate, or as if the House of Representatives may in any respect
command the Senate in relation to a Bill. Thus, in approaching the meaning of
the word "fails" in s. 57, it must be borne in mind that the Senate is both
entitled and bound to consider a proposed law and to have a proper opportunity
for debate and that its concurrence, apart from the provisions of s. 57, is
indispensable to a valid act of the Parliament. (at p122)
50. It seems to me that the word "fails" in s. 57 involves the notion that a
time has arrived when, even allowing for the deliberative processes of the
Senate, the Senate ought to
answer whether or not it will pass the Bill or
make amendments to it for the consideration of the House: that the time has
arrived
for the Senate to take a stand with respect to the Bill. If that time
has arrived and the Senate rather than take a stand merely
prevaricates, it
can properly be said at that time to have failed to pass the Bill. In
considering whether such a time has arrived,
it may be that antecedent conduct
of the Senate, particularly in relation to the proposed law, may be relevant.
But it will be the
conduct of the Senate itself 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 whether, the situation having been reached where
the Senate is called
upon to give an answer on the Bill, it has failed to pass it. (at p122)
51. There is no need for any lengthy discussion of the Commonwealth's
submission that the statements of individual senators as set
out in the
statement of defence are both relevant and definitive in the consideration of
the question whether the Senate failed on
13th December to pass the Bill.
Even if the senators who spoke did so for a majority of senators, they did not
speak for the Senate.
It is the Senate's failure which is operative under s.
57. The intention of senators to procure such a failure cannot be an
equivalent or a substitute for the action of the Senate itself.
(at p123)
52. The Solicitor-General fastened upon cautious expressions in
Attorney-General (Alberta) v. Attorney-General (Canada) (1939) AC
117, at p
131 , as if they constituted authority for the proposition that the expressed
intention of the members of a deliberative
assembly to induce or secure some
act of the assembly itself were relevant to the question whether that assembly
had performed that
act. It is enough to say that I am quite unable to so
regard the words upon which the Solicitor-General seeks to hang so much; nor
would I be inclined, in any case, to treat as authority such tentative remarks
made alio intuitu so far as concerns the present question.
In my opinion, the
statements attributed to the individual senators are neither relevant to, nor
definitive of, the question whether
on 13th December the Senate failed to pass
the Bill. (at p123)
53. In order to deny that the Senate has failed to pass the Bill, it may not
be enough to say that all the processes available to
the Senate in the
consideration of a Bill have not been exhausted. It may be that even before
those processes are exhausted the
Senate may fail to pass within the meaning
of s. 57. In 1951 the reference of the Commonwealth Banking Bill to a select
committee did not prevent the conclusion that the Senate had
failed to pass,
having regard to its entire conduct in regard to the Bill. It was said that
the reference to the select committee
in the particular circumstances was no
more than prevarication. On other occasions and in different circumstances,
the same conclusion
perhaps may not be drawn from a reference of a Bill to a
select committee. (at p123)
54. However, I have no doubt that it cannot properly be said that when the
Senate resolved on 13th December 1973 to adjourn the
debate on the motion for
a second reading until in effect the next sitting day, it had failed to pass
the Bill. In my opinion, it
could not be said that the time had arrived that
day where the Senate was in any sense obliged to express itself definitively
on
the Bill. The concept of failure to pass must, it seems to me, mean more
than "not pass". Failure in this sense imports, as I have
said, the notion of
the presence of an obligation as a House to take a definitive stand. (at
p123)
55. My conclusion therefore is that the Senate did not fail to pass the
proposed law on 13th December 1973 within the meaning and
operation of s. 57
of the Constitution. The adjournment by the Senate of the debate until what
was in effect the next day of sitting cannot be said, in my opinion, to
have
been a mere prevarication. Indeed, the suspension of Standing Orders to allow
of the making of the motion for a second reading,
scarce portends an intention
to prevaricate. (at p124)
56. The next question is whether or not the period of three months in the
first paragraph of s. 57 is to run from the date of the Senate's relevant
treatment of the Bill, or whether it runs from the first passage of the Bill
by
the House of Representatives. Reading s. 57 as a piece of English, I am
unable to see any basis upon which the words "if after an interval of three
months" could be referable
other than to the action of the Senate. There are
two conditions the existence of which in fact warrant the Governor-General
dissolving
the Senate and the House of Representatives at the same time. The
first is that the House of Representatives has passed a proposed
law and that
the Senate has rejected it, failed to pass it, or passed it with unacceptable
amendments. That, it seems to me, is one
composite condition of the power to
dissolve. There is then a second condition: it is a different and an
additional condition.
It is that after the first condition has been
fulfilled, the House in due time passes the law again and the Senate again
rejects
it, fails to pass it, or passes it with unacceptable amendment. The
second condition is composite having two elements as has the
first condition.
The natural reading of the language is that a period of three months separates
the existence in fact of the two
conditions. (at p124)
57. But, apart from reading the section as a piece of English, the purpose
behind the section, it seems to me, is to fix a period
of time after the
Senate has considered the law and taken up a definitive position with respect
to it, during which the House of
Representatives should have time to consider,
no doubt in the light of what has been said in debate in the Senate, whether
the law
should go forward again. Also, the decision of the Senate whether it
should maintain its former attitude to the Bill may well be
affected by the
lapse of time. I cannot see any policy which would be satisfied by annexing
the interval of three months to the
first passage of the proposed law by the
House of Representatives. I find no assistance in the construction of s. 57
in this respect from consideration of constitutions derived elsewhere designed
to prevent the frustration of the purposes of a lower
House by obduracy on the
part of an upper House or second chamber. (at p124)
58. If one observes the processes which may be followed where the Senate
amends a proposed law, it is immediately apparent that,
with the utmost of
goodwill between the two Houses, more than three months may elapse in the
course of a negotiation between the
House and the Senate as to the amendments.
See, in this connexion, Standing Orders 236, 237 and 238. The expression in
s. 57 is "passes it with amendments to which the House of Representatives will
not agree". Those words would not, in my opinion and with
due respect to a
contrary opinion attributed to Sir Kenneth Bailey, necessarily be satisfied by
the amendments made in the first
place by the Senate. At the least, the
attitude of the House of Representatives to the amendments must be decided
and, I would think,
must be made known before the interval of three months
could begin. But the House of Representatives, having indicated in messages
to the Senate why it will not agree, may of course find that the Senate
concurs in its view so expressed, or there may be some modification
thereafter
of the amendments made by the Senate which in due course may be acceptable to
the House of Representatives. It cannot
be said, in my opinion, that there
are amendments to which the House of Representatives will not agree until the
processes which
parliamentary procedure provides have been explored: see,
generally, Odgers, op. cit., pp. 272, 278. These considerations, in my
opinion, reinforce the view that the submission that the interval mentioned in
s. 57 commences at the time of the first passage of the Bill, is unacceptable.
(at p125)
59. A principal argument advanced by the defendants in favour of what I
consider to be an unnatural reading of the section is the
argument with which
I have already dealt, namely, that the intention of s. 57 was to secure the
effectiveness of the will of the House of Representatives in any event. But,
it seems to me, such a proposition
cannot survive analysis. There is no
question that the first paragraph of s. 57 gives the House of Representatives
the initiative both in the formulation of the proposed law and in its
re-enactment after an interval
of three months, but the purpose of a double
dissolution is not to ensure that the will of the House prevails. Rather it
is a means
by which the electorate can express itself and perhaps thus resolve
the "deadlock" which has been demonstrated to exist between the
House and the
Senate. Whether the House of Representatives returns after a double
dissolution with the same majority as aforetime
is a matter for the
electorate: nothing in the section bears on that question. Further, the
purpose of the joint sitting if the
"deadlock" continues is not to secure the
will of the House of Representatives. It is to secure the view of the absolute
majority
of the total number of the members of both Houses, which may or may
not represent the will of the House of Representatives. It is
little to the
point that it may generally be expected that the members of the more numerous
House will carry the day in a joint sitting.
But that is not a necessary
consequence. This argument on the construction of s. 57 which the Crown puts
forward is, in my opinion, untenable. (at p126)
60. I should interpolate here a brief reference to a submission by the
Commonwealth that the "proposed law as last proposed by the
House of
Representatives" of which the third paragraph of s. 57 speaks need not have
"complied" with the requirements of the first paragraph of the section. In my
opinion, there is no substance
in the suggestion. Clearly, in my opinion, the
section, though it provides for various stages in the process, relates to the
passage
into law of the proposed law mentioned in the first line of the
section. In my opinion, only a proposed law which had passed through
the
stages prescribed in both the first and second paragraphs of s. 57 could be
deliberated upon and affirmed at a joint sitting. (at p126)
61. In my opinion, the requirements of the first paragraph of s. 57 were not
satisfied in relation to the Bill. The Senate had not failed to pass it on
13th December 1973, and the interval of three
months from the date of the
Senate's rejection of the Bill which should have elapsed before the House of
Representatives again passed
the proposed law did not elapse. A consequence
is that, had there been no other proposed laws which satisfied the provisions
of
s. 57, the Governor-General would not have had authority to dissolve the
Senate and the House of Representatives simultaneously merely
because of what
occurred in the Senate on 13th December 1973 in relation to the Bill. (at
p126)
62. I therefore conclude that the Bill, though assented to by the
Governor-General, is not a valid law of the Commonwealth. The
demurrer should
be upheld. It is appropriate in the circumstances of the case that the action
should be dismissed. It becomes unnecessary
to answer the questions reserved
for the consideration of the Full Court. The summons to strike out portion of
the statement of
defence could now be dismissed by the Justice who heard the
summons, the costs of the summons to be in his discretion. (at p126)
63. The actions brought by the three States other than the plaintiff state
are not before us except to the extent of the questions
reserved for the
Court's consideration. In my opinion, there is now no need for the Court
specifically to answer the questions.
The matter in the case of those States
can best be dealt with by remitting them to the Justice who heard the summons.
No doubt,
having regard to the Court's decision on the demurrer, the actions
brought by the three States will be dismissed by consent. (at
p127)
McTIERNAN J. The plaintiffs are the State of Victoria, which is a body
politic, and the Attorney-General of the State. Section
62 of the Judiciary
Act provides that suits on behalf of a State may be brought in the name of the
State by the Attorney-General
of the State, or by any person appointed by him
in that behalf. It does not appear from the statement of claim why this suit
is
brought in the name of the State and in the name of the Attorney-General.
(at p127)
2. The plaintiffs claim, by the prayer in the statement of claim, the
following relief: 1. A declaration that the Petroleum and
Minerals Authority
Act 1973 is not a valid law of the Commonwealth. 2. A declaration that this
Act was not "duly" passed by the
Parliament of the Commonwealth
in accordance
with s. 57 of the Constitution. (at p127)
3. The declarations sought are declarations of right as against the
Commonwealth and a Minister of State for the Commonwealth, the
defendants. An
injunction is claimed against the Minister. (at p127)
4. The first claim is ambiguous. It may mean that the Act is not a valid law
because it exceeds the power of the Parliament or
because it was not duly
passed by the Parliament. There is no allegation in the statement of claim
that the Act is ultra vires.
The statement of claim gives an account of the
legislative process by which a Bill for the Act in question became law. It
appears
that the Bill originated in the House of Representatives. The Bill
was a "proposed law" passed by the House of Representatives.
It was sent to
the Senate on 13th December 1973, the day after the Bill passed the House of
Representatives. The motion that the
Bill be read a second time was moved in
the Senate in December 1973. The Senate did not agree to that motion. The
debate on the
motion was interrupted by a motion that the debate be adjourned
and upon the resumption in the Senate of the debate, the statement
of claim
says, "it was ordered that the debate be adjourned and that the resumption of
the debate be an Order of the Day for the
first sitting day in February 1974".
(at p127)
5. The statement of claim contains the text of a proclamation which it says
was issued by the Governor-General on 13th February
1974. By this
proclamation the Parliament was prorogued until 28th February 1974. Standing
Order 264 of the Standing Orders of
the House of Representatives says, "Any
bill which lapses by reasons of prorogation before it has reached its final
stage may be
proceeded with in the next ensuing session at the stage it had
reached in the preceding session ...". Standing Order 243 of the
Standing
Orders of the Senate contains a provision similar to that just quoted,
applying to any public Bill. The Bill here in question
was of course a public
Bill. It is disclosed by the statement that the "next ensuing session"
commenced on 28th February 1974. (at
p128)
6. The debate on the adjourned motion that the Bill be read a second time was
resumed in the Senate on 19th March 1974. The statement
of claim says, "On
2nd April the Senate negatived the motion ...". It is said in par. 8 of the
statement of claim that the motion
moved in the Senate was that the said Bill
be read a second time. It is said in par. 4 of the defence that the motion
referred to
in par. 8 of the statement of claim was in the following words:
"That this Bill be now read a second time", and in par. 8 of the
defence that
the motion put to the Senate and negatived by the Senate was in those words
(see Halsbury's Laws of England, 3rd ed.,
vol. 28, p. 377). The motion for
the second reading which the Minister moved was in the usual form according to
parliamentary practice.
(at p128)
7. It is shown by the statement of claim that the House of Representatives
passed a Bill (the proposed law in question) on 8th April
1974 and on that
date sent the usual message to the Senate requesting the Senate's concurrence
in the Bill, that the Bill reached
the second reading stage on 8th April 1974;
and, a motion having been proposed "that the said Bill be read a second time",
the Senate
passed another motion, namely that the debate on the motion for the
second reading be adjourned. It is shown by the statement of
claim that the
motion which was finally passed rejected the motion for the second reading and
the Senate passed a motion which reads
as follows:
"The Bill be deferred till this day six months because -
(1) this Bill was defeated in the Senate on 2nd April 1974,
which is only one week ago;
(2) this Bill is introduced not to allow for further consideration
and debate, but simply for statistical purposes;
and
(3) the Government introducing the same Bills on a number
of occasions on the one subject matter, seeks to
mislead the Australian people as to the actual numbers
of matters opposed and defeated by the Opposition.
The Senate is part of the legislative process of this
Nation and it should not be abused and used as a scoreboard
by the Government for political purposes." (at p129)
8. The statement of claim in par. 28 sets out the text of a proclamation
which was made by the Governor-General, with the advice
of the Prime Minister.
This proclamation recites the conditions upon the fulfilment of which s. 57 of
the Constitution says the Governor-General may dissolve the Senate and the
House of Representatives. The proclamation contains an averment that those
conditions had been fulfilled in respect of several proposed laws entitled -
Commonwealth Electoral Act (No. 2) 1973, Senate (Representation
of
Territories) Act 1973, Representation Act 1973, Health Insurance Commission
Act 1973, Petroleum and Minerals Authority Act 1973.
Following the averment
the proclamation continues: "Now therefore, I (The Governor-General in office)
do by this my Proclamation
dissolve the House of Representatives." (at p129)
9. The opponents of the Bill in the Senate challenged the motion that the
Bill be read a second time by voting for the motion, emanating
from the
Opposition, that the Bill be deferred for six months. The Opposition's
reasons for supporting this motion for deferment
of the Bill would seem to be
odd when it is seen to be one of six "proposed laws" in respect of which the
Governor-General dissolved
the Senate and House of Representatives as a step
in the constitutional means provided in s. 57 for resolving disagreements
between
the Senate and the House of Representatives over Bills originating in
the latter. (at p129)
10. The statement of claim continues the parliamentary history of the
proposed law after the election of a new Parliament. This
history includes
that on 11th July 1974 the Bill (the proposed law, the subject of this suit)
was again passed by the House of Representatives.
This is stated in par. 30,
but what happened to the Bill in the Senate is not mentioned. Paragraph 14 of
the defence states that
on 11th July 1974 after the Bill was sent to the
Senate from the House of Representatives, in due course it was moved on that
day:
"That the Bill be now read a second time" and that the Senate resolved
the said question in the negative. (at p129)
11. Section 57 of the Constitution provides that if after a dissolution of
the Senate and House of Representatives under this section, "The House of
Representatives
again passes the proposed law ... and the Senate rejects or
fails to pass it ... the Governor-General may convene a joint sitting
of the
members of the Senate and of the House of Representatives". (at p129)
12. It is stated in par. 31 of the statement of claim that on 30th July the
Governor-General issued a proclamation. The text of
the proclamation is set
out. The body of the proclamation is as follows:
"WHEREAS a Proclamation made on 11 April 1974 by
the Governor-General of Australia then holding office recited
that the conditions upon which the Governor-General is
empowered by s. 57 of the Constitution to dissolve the Senate
and the House of Representatives simultaneously had
been fulfilled in respect of the several proposed laws intituled:
Commonwealth Electoral Act (No. 2) 1973, Senate (Representation
of Territories) Act 1973, Representation Act 1973,
Health Insurance Commission Act 1973, Health Insurance
Act 1973, Petroleum and Minerals Authority Act 1973: AND
WHEREAS by the said Proclamation, the said Governor-General
dissolved the Senate and the House of Representatives
accordingly:" (at p130)
13. The proclamation was issued with the advice of the Governor-General. (at
p130)
14. Section 50 of the Constitution provides:
"Each House of the Parliament may make rules and
orders with respect to -
... (ii) The order and conduct of its business and proceedings
either separately or jointly with the other House." (at p130)
15. Joint Standing Orders were made. The Senate Standing Orders and the
House of Representatives Standing Orders contain standing
orders applicable to
Disagreement Between The Houses. (Constitution, s. 57.) It is provided in
these Standing Orders that "The member chosen to preside shall present to the
Governor-General for the Royal Assent
any proposed law duly passed at such
joint sitting". (at p130)
16. The Rules for the joint sitting convened by the proclamation mentioned
above were adopted on 1st August 1974. Rule 11 reads:
"Question on proposed law
(a) The question to be put from the Chair upon any proposed
law before the joint sitting shall be, 'That the
proposed law be affirmed', and a division shall be taken
on that question.
(b) The question that any proposed law be affirmed shall
be resolved in the affirmative if, and only if, an absolute
majority of the total number of the members of
the Senate and House of Representatives vote in the
affirmative." (at p130)
17. After the citation of the proclamation the statement of claim says:
"32. On the 7th August 1974 a joint sitting of the members
of the Senate and of the House of Representatives
(which is hereinafter called "the said joint sitting") resolved
to affirm the said Bill.
33. On the 8th August 1974 His Excellency the Governor-General
declared the Queen's Assent to the said Bill." (at p131)
18. Paragraph 15 of the defence says in answer to par. 32, inter alia:
"(vi) The Chairman called on the Sixth proposed Law
named in the Proclamation viz. Petroleum and Minerals
Authority Act 1973 and pursuant to rule 11 proposed the
question - that the proposed Law be affirmed.
(vii) The question that the proposed Law be affirmed
was put. The Joint Sitting voted upon the said question, the
members present voting together thereon. Ninety-five members
of the House of Representatives and the Senate voted
in favour of the question in the said Joint Sitting. Ninety-one
members of the Senate and the House of Representatives in
the Joint Sitting voted against the said question. The question
was so resolved, in the affirmative.
(viii) The Chairman thereupon declared the proposed
law affirmed by an absolute majority of the total number of
members of the Senate and of the House of Representatives
as required by s. 57 of the Constitution." (at p131)
19. It is not alleged in the statement of claim that any member of the House
of Representatives or of the Senate made any objection
to the putting of the
question from the chair that the proposed law intituled Petroleum and Minerals
Authority Act 1973 be affirmed.
The matters pleaded as to the process of law
making in the joint sitting in fact satisfy the provisions of s. 57 relating
to a joint
sitting. This provision reads:
"The members present at the joint sitting may deliberate
and shall vote together upon the proposed law as last proposed
by the House of Representatives, and upon amendments,
if any, which have been made therein by one House
and not agreed to by the other, and any such amendments
which are affirmed by an absolute majority of the total number
of the members of the Senate and House of Representatives
shall be taken to have been carried, and if the proposed
law, with the amendments, if any, so carried is
affirmed by an absolute majority of the total number of the
members of the Senate and House of Representatives, it shall
be taken to have been duly passed by both Houses of the
Parliament, and shall be presented to the Governor-General
for the Queen's assent." (at p131)
20. Royal assent was given to the "proposed law" in question in accordance
with s. 58 of the Constitution. This section applies "when a proposed law
passed by both Houses of Parliament is presented to the Governor-General for
the Queen's
Assent". (at p132)
21. The plaintiffs' challenge to the validity of the statute, the Petroleum
and Minerals Authority Act 1973, and their claim for
a declaratory judgment is
based on allegations in the statement of claim. These allegations are the
proclamation,
which dissolved
the Senate and House of Representatives, "was
void and is of no effect" to the extent that it referred to the "proposed
law"
for
this Statute; the proclamation convening the joint sitting "was void and
is of no effect", alternatively "to the extent
that it referred
to the said
proposed law"; the joint sitting had "no power to vote" on the Bill (the
proposed law); the resolution
of the joint sitting
affirming the proposed law
"was void and is of no effect"; the Royal assent to the proposed law "is of no
effect".
(at p132)
22. The proclamation dissolving the Senate and the House of Representatives
or the proclamation convening the joint sitting does
not on its face show that
the Governor-General did not comply with s. 57 of the Constitution. In my
opinion the Governor-General may dissolve the Senate and the House of
Representatives where there is disagreement according
to the criteria of s. 57
over a number of proposed laws and convene a joint sitting to deliberate on as
many of them as the House of Representatives of the
new Parliament passes and
the Senate of the new Parliament rejects or fails to pass. (at p132)
23. The statement of claim has no particulars of non-compliance by the
Governor-General with s. 57. The contention put forward is that a condition
of s. 57 was not fulfilled. The words of the section on which this contention
is based are 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." (at p132)
24. It is said that the narrative in the statement of claim of legislative
action does not reveal that the Senate did not reject
or fail to pass the
proposed law in time to make it possible to hold that the Governor-General had
power to dissolve the Senate and
House of Representatives by the proclamation
made. The question turns upon whether the intention of the section is that an
interval
of three months must run from the time the Senate "rejects or fails
to pass" the proposed law or from the time the House of Representatives
first
passed it. The meaning of the word "reject" and of the expression "fails to
pass" is discussed in Clayton v. Heffron [1960]
HCA 92; (1960)
105 CLR 214 . The Court
decided that the words "rejects or fails to pass" in s. 5B of the Constitution
Act 1902 (N.S.W.) indicates an intention to cover entirely the situation
wherein the Legislative Council withholds its consent to
a measure sent up to
it by the Legislative Assembly. It is said in the joint judgment (1960) 105
CLR, at p 242 :
"The word" (reject) "has no technical parliamentary sense;
like the words 'lost' and 'defeated' in the expressions 'the
Bill is lost' or 'the Bill is defeated' it is descriptive rather
than a word of art but of course in a provision of the nature
of s. 5B it is true that it is descriptive of a parliamentary
result or conclusion. The question is what does s. 5B mean
to cover by its use. The provision is concerned with a refusal
or neglect to give effect to the Assembly's will in law making.
It is because the assent of the Council to a Bill may be
withheld otherwise than by rejection that the alternative 'fails
to pass' is added ..." (at p133)
25. A school of thought is that the interval of three months runs from the
time the Senate "rejects or fails to pass" the proposed
law. Another school
of thought is that the interval runs from the time the House of
Representatives first passes the proposed law.
The time at which the House of
Representatives passes a proposed law is capable of ascertainment by looking
at Hansard. The expression,
fails to pass, if intended to be the event from
which the interval of three months runs, may create difficulties for the
Governor-General
in deciding whether in a given case of disagreement between
the Houses over a proposed law he may exercise the prerogative of dissolution
delegated to the Governor-General by s. 57. Arguing from convenience the
proper interpretation of the section is that the interval
runs from the time
the House of Representatives first passed the proposed law. It is not to be
assumed the House of Representatives
would delay transmitting a proposed law
to the Senate. In the present case, according to the parliamentary history of
the proposed
law in question, pleaded in the statement of claim, the House of
Representatives passed it on 12th December 1973 and transmitted
it to the
Senate on 13th December 1973 as the Governor-General averred in the
proclamation dissolving the Senate and the House of
Representatives. I would
assume that he took as the relevant time 13th December 1973 the day on which
the Senate passed a motion
by which it was ordered that the second reading of
the Bill (the proposed law) be adjourned and that the resumption of the debate
be an order of the day for the first sitting in February 1974. "The second
reading is the stage at which the House, which is considering
the measure, is
called upon either to affirm or to reject the principle upon which the bill is
based." (Halsbury's Laws of England,
3rd ed., vol. 28, p. 377.) The matter
of procedure prescribed by s. 57 is a matter affecting the process applicable
to a proposed
law, "a matter at once outside the ordinary scope of enquiry by
the courts and also one not necessarily of public notoriety" (Dixon
C.J.,
McTiernan, Taylor and Windeyer JJ. in Clayton v. Heffron (1960) 105 CLR, at p
246 ). (at p134)
26. In South Australia v. Victoria [1911] HCA 17; (1911) 12 CLR 667, at pp 674-675 ,
Griffith C.J. said: "I assent to the argument
that the jurisdiction
of the
High Court, if any,
is judicial and not political. So far, therefore, as a
controversy requires for
its settlement the application
of political as
distinguished
from judicial considerations, I think that it is not justiciable
under
the Constitution." See also reasons of O'Connor J. (1911) 12 CLR, at p
708 and of Isaacs J. (1911) 12 CLR, at p 715 . (at p134)
27. An exhibit in this case consists of "documents relating to the
simultaneous dissolution of the Senate and the House of Representatives
by His
Excellency the Governor-General on 19th March 1951". Document 1 consists of
advice given by the Prime Minister to the Governor-General.
The document
includes paragraphs which read as follows:
"... It may be that in the case of an undefined expression
like "fails to pass" a reference should be made not only
to the objective record and timetable, but also to the intention
of the Senate, in so far as that intention is manifested
by its acts.
On this point I would advise that there is clear evidence
that the design and intention of the Senate in relation to this
Bill has been to seek every opportunity for delay, upon the
principle that protracted postponement may be in some
political circumstances almost as efficacious, though not so
dangerous, as straight-out rejection. Since failure to pass is,
in s. 57, distinguished from rejection or unacceptable amendment,
it must refer, among other things, to such a delay in
passing the Bill or such a delaying intention as would
amount to an expression of unwillingness to pass it. Clear
evidence emerges from the whole of the history of the legislation
in the Senate." (at p134)
28. Among other political considerations in the advice one is expressed in
these terms. After referring to a number of disagreements
between the
Government and the Opposition in the Senate, the Prime Minister said in his
advice:
"The point I am making is that in respect of all these
matters the Government, with a new mandate from the
people, has been in major affairs, constantly delayed and
frustrated by the facts that the two Houses are of opposite
political complexions and that in consequence the legislative
machine, except in respect of relatively minor matters, has
been materially slowed down and rendered extremely uncertain
in its operation." (at p135)
29. In considering whether the Bill was rejected or failed to pass the Senate
when the motion for its second reading was adjourned,
the Governor-General
could take into account not only that objective fact but also its real
significance. He could have gathered
that from the ultimate fate of the Bill
and the grounds on which the last motion, that it be read a second time, was
lost. It was
open to the Governor-General to consider that the interruption
of the debate on the second reading of the Bill of 13th December 1973
was a
prelude to the hostile action taken by the majority of the Senate against the
Bill when the discussion took place on the motions
that the Bill be read a
second time. (at p135)
30. In my opinion the question whether it is right to say that the Senate in
truth rejected or failed to pass the Bill on 13th December
1973 is a political
question. In my opinion it is not within the judicial power of the
Commonwealth, vested by s. 71 of the Constitution in the Court, to decide
whether the recitals by the Governor-General in the proclamation dissolving
both Houses were erroneous in
fact or in law. "The crux of the matter,"
Frankfurter J. said in Baker v. Carr [1962] USSC 42; (1962) 369 US 186, at p 287 (7 Law Ed 2d
663, at
pp 726-727) , "is that courts are not fit instruments of decision
where what is
essentially at stake is the composition of those
large contests
of policy traditionally fought out in non-judicial forums, by which
governments and the actions of governments are
made and unmade". This
inappropriateness of the issues of rejection of or failure
to pass for
judicial consideration may be designated
"non-justiciability" (Baker v. Carr
(1962) 369 US, at p 198 (7 Law Ed 2d, at
p 674) ). The Court would be going
beyond its function
if it entered upon an enquiry into the lawfulness and
regularity of the course
pursued at the joint sitting in respect of the
proposed
law before it was presented to the Governor-General for the Royal
assent.
The traditional view is that courts do not undertake such
an inquiry -
Clayton v. Heffron, where it is said (1960) 105 CLR, at p
235 :
"Of course the framers of a constitution may make theThis passage does not contemplate as such a fact, event or consideration the rejection or failure of one of the Houses of the Federal Parliament to pass a law. The validity of the present statute depends on its adoption, when a proposed law, by an absolute majority of members present at the joint sitting. The passage quoted above from the joint judgment in Clayton v. Heffron continues:
validity of a law depend upon any fact, event or consideration
they may choose, and if one is chosen which consists
in a proceeding within Parliament the courts must take it
under their cognizance in order to determine whether the
supposed law is a valid law; but even then one might suppose
only after the law in question has been enacted and
when its validity as law is impugned by someone affected
by its operation."
"It is not easy to escape the impression that if we had
been considering the validity of a statute actually adopted
in purported pursuance of s. 5B of the Constitution Act and
assented to by the Crown, some of the points taken in the
present suit in support of the plaintiffs' case would have been
seen in a truer perspective and put on one side as matters
belonging to the legislative process which could not be
entertained as grounds for invalidating a statute duly authenticated
as enacted by the Legislative Assembly and approved
by the electors under s. 5B and assented to by the Governor."
(at p136)
31. It is further said in Clayton v. Heffron (1960) 105 CLR, at p 246 :
"In this case there are two matters with which we are
dealing: the legislative power and the procedure for its
exercise. The principles of the common law distinguished
sharply between invalid attempts to exercise a legislative
power and departures from the prescribed course for its
exercise which may not or do not bring invalidity as a necessary
consequence. In the end the distinction must be governed
by the intention expressed by the legislature conferring
the power and prescribing the steps to be taken in the
course of its exercise. But commonly no express declaration
is to be found in a statutory power as to the effect on validity
of departures from the procedure laid down. The question
is then determined by reference to the nature of the power
conferred, the consequences which flow from its exercise,
the character and purpose of the procedure prescribed. The
power here is to enact a public general statute and the power
to do this extends to a statute altering the constitution of
the Legislature so that if the statute is to be void every
future piece of legislation passed by the Legislature of the
State so constituted will have no force or effect. The matter
of procedure prescribed is a matter affecting the process in
Parliament of legislating, a matter at once outside the ordinary
scope of inquiry by the courts and also one not necessarily
of public notoriety." (at p137)
32. Another passage in the joint judgment in Clayton v. Heffron, which it is
material to take into consideration in this case, is
the following (1960) 105
CLR, at pp 247, 248 :
"Lawyers speak of statutory provisions as imperativeSee also reasons for judgment of Kitto J. (1960) 105 CLR, at p 266 . (at p138)
when any want of strict compliance with them means that
the resulting act, be it a statute, a contract or what you will,
is null and void. They speak of them as directory when they
mean that although they are legal requirements which it is
unlawful to disregard, yet failure to fulfil them does not mean
that the resulting act is wholly ineffective, is null and void.
It is almost unnecessary to say that the decided cases illustrating
the distinction relate to much humbler matters than
the validity or invalidity of the constitution of the Legislature
of a State. But in them all the performance of a public
duty or the fulfilment of a public function by a body of
persons to whom the task is confided is regarded as something
to be contrasted with the acquisition or exercise of
private rights or privileges and the fact that to treat a deviation
in the former case from the conditions or directions
laid down as meaning complete invalidity would work
inconvenience or worse on a section of the public is treated
as a powerful consideration against doing so. It is possible
to imagine a stronger case of inconvenience than the invalidation
perhaps at some future time of a constitutional provision
possessing all the outward appearances of a valid law
on the ground that when it was made managers of the
Council had not met managers of the Assembly before the
members of the two Houses were required by the Governor
to meet? The argument for the plaintiffs suggested that the
Governor's 'power' to summon a joint meeting of members
could not arise without a conference of managers. If that
were all it would be enough to say that it is not a 'power' in
the ordinary sense and that in fact he did summon or convene
the meeting without objection on the ground that he
had interfered with the parliamentary process in a way
which was beyond the province of the Crown. But that is
not the real point. The real point sought to be made is that
a free conference is an essential condition of the ultimate
validity of any statute enacted under s. 5B. To that the
answer is that according to the principles governing the
invalidation of statutes for deviation from the legislative
procedure laid down by law no such validity should be held
to ensue as a consequence of the lack of a meeting of managers
in a free conference."
33. The success of the allegations of voidance in the statement of claim
depends upon the question whether the attack on the proclamation
dissolving
the Senate and the House of Representatives would succeed. As this attack
fails there is no ground established on which
relief sought may be granted.
(at p138)
34. In my opinion a question arises as to the standing of the State of
Victoria and the Attorney-General of the said State to claim
the declarations
of right depending on the fact that the proposed law was affirmed by an
absolute majority of the senators and members
sitting together at the joint
sitting. (at p138)
35. The Bill for the Act sought to be invalidated might or might not have
passed each House of the Parliament (Clayton v. Heffron
(1960) 105 CLR, at p
233 ). It was in fact defeated by an adverse vote in the Senate on several
occasions. The Bill might or might
not have been affirmed by the necessary
majority at the joint sitting or defeated. Neither the Commonwealth nor the
Minister, who
is the secondnamed defendant, was responsible for how senators
or members of the House of Representatives voted bicamerally or unicamerally.
The Parliament is master in its own household. There is no adverseness of
interest between the plaintiffs on the one hand and the
defendants on the
other. The plaintiffs have no legal or equitable interest in law-making by
either House of the federal Parliament.
Has the Commonwealth or the
Attorney-General of the Commonwealth a right to a declaratory judgment
impugning the procedure within
either House of the Parliament of New South
Wales by which a Bill became a Statute assented to by the Governor? I do not
think so.
Frankfurter J. said in Baker v. Carr [1962] USSC 48; (1962) 369 US 186, at pp
286-287 (7 Law Ed 2d 663, at p 726) : "... the litigant who would
challenge
official action must claim
infringement of an interest particular and personal
to himself, as distinguished from a cause
of dissatisfaction with the general
frame and functioning of government - a complaint that the political
institutions are awry."
See also Massachusetts v. Mellon [1923] USSC 152; [1923] USSC 153; (1922) 262 US 447
(67 Law Ed 1078) ; Willoughby on the Constitution of the United States, 2nd
ed. (1928), vol. 1, pp. 19-20. (at p138)
36. I think that neither plaintiff has a sufficient interest in the subject
of this suit to seek the relief claimed. (at p138)
37. I would overrule the plaintiffs' demurrer to the defence and dismiss the
suit. (at p139)
38. In each of the suits, namely New South Wales v. The Commonwealth,
Queensland v. The Commonwealth, Western Australia v. The Commonwealth,
I have
arrived at the conclusion that they should be dismissed and for the same
reasons, in principle, as I have given in Victoria
v. The Commonwealth. (at
p139)
GIBBS J. Four States have brought proceedings for a declaration that the
Petroleum and Minerals Authority Act 1973 is not a valid
law of the
Commonwealth. For convenience the Petroleum and Minerals Authority Act 1973
will henceforth be called "the Act", although
to give it that title may appear
to beg the question. The proceedings do not require
us to decide whether it
would be within the
power of the Commonwealth to enact a law in the terms of
the Act - that may fall to be
decided on another occasion. What is contended
by the States is that the Act was not passed into law in the manner required
by the
Constitution. Although the Act commences in what is now the usual form:
"Be it enacted by the Queen, the Senate and the House of Representatives
of
Australia", it was not in fact so enacted - a proposed law, in the form of the
Act, was affirmed by an absolute majority of the
total number of the members
of the Senate and the House of Representatives at a joint sitting of the
members of both Houses, held
under the authority of s. 57 of the Constitution.
If s. 57 applies to the Act, it will be taken to have been duly passed by both
Houses of the Parliament. However, it is said on behalf of
the States that
the provisions of s. 57 were not satisfied in relation to the Act, which, not
having been duly passed, is not a valid
law. (at p139)
2. The circumstances in which the Act was passed were as follows. On 12th
December 1973 the House of Representatives passed a proposed
law, intituled "A
Bill for an Act to establish a Petroleum and Minerals Authority" ("the Bill").
On the following day, 13th December,
the Bill was introduced into the Senate.
On that day, a message in the following terms (omitting formal parts) was
received from
the House of Representatives by the Senate and was read in the
Senate:
"The House of Representatives transmits to the SenateAt some stage on that day the Senate passed a motion that so much of the Standing Orders be suspended as would prevent the Bill being passed through all stages without delay. The Bill was read a first time, and it was then moved that the Bill "be now read a second time". The Senate passed a motion that the debate upon that motion be adjourned and it was ordered that the resumption of the debate be an order of the day for a later hour of the day. Upon the resumption in the Senate of the debate upon the motion that the Bill be read a second time it was ordered that the debate be adjourned and that the resumption of the debate be an order of the day for the first sitting day in February 1974. The 13th December was the last day on which the Senate sat during 1973; it was adjourned to a date to be fixed by the President or the Chairman of Committees. However, during the adjournment, on 14th February 1974, His Excellency the Governor-General issued a proclamation proroguing the Parliament until Thursday, 28th February 1974. (at p140)
a Bill intituled 'A Bill for an Act to establish a Petroleum
and Minerals Authority', in which it desires the concurrence
of the Senate."
3. On 7th March 1974 the House of Representatives sent a message requesting
the Senate to resume consideration of the Bill; the
message referred to the
proceedings on the Bill as "having been interrupted by the Prorogation of the
Parliament". On 13th March
1974 the Senate resolved that the request
contained in the message be complied with and on 19th March 1974 the debate on
the second
reading of the Bill was resumed in the Senate. On 2nd April 1974
the motion that the Bill be now read a second time was negatived
by the
Senate. (at p140)
4. The House of Representatives again passed the Bill on 8th April 1974. The
Bill was again introduced in the Senate but on 10th
April 1974 it was resolved
that it be deferred till that day six months. (at p140)
5. On 11th April 1974 His Excellency the Governor-General issued a
proclamation by which, after reciting (inter alia) that the conditions
upon
which His Excellency is empowered by s. 57 to dissolve the Senate and the
House of Representatives simultaneously had been fulfilled
in respect of six
proposed laws (including the Bill), he dissolved the Senate and the House of
Representatives. Thereafter a general
election of members of the House of
Representatives and senators for the several States was held, the result of
the elections was
declared and His Excellency appointed 9th July 1974 as the
day for the Parliament to assemble. Both Houses met on that day. On 11th
July
1974 the Bill was yet again passed by the House of Representatives and on the
same day it was read for the first time in the
Senate. However, on 24th July
1974 the motion that the Bill be now read a second time was negatived in the
Senate. (at p141)
6. On 30th July 1974 His Excellency the Governor-General by proclamation
convened a joint sitting of the members of the Senate and
of the House of
Representatives to commence on 6th August 1974 for the purpose of deliberating
and voting together upon each of the
six proposed laws (including the Bill)
memtioned in His Excellency's earlier proclamation. At the joint sitting, on
7th August 1974,
the Bill was affirmed by an absolute majority of the total
number of the members of both Houses and on the following day His Excellency
declared the assent of Her Majesty the Queen to the Bill. (at p141)
7. The provisions of s. 57 of the Constitution are 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.
If after such dissolution the House of Representatives
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 convene
a joint sitting of the members of the Senate and of the
House of Representatives.
The members present at the joint sitting may deliberate
and shall vote together upon the proposed law as last proposed
by the House of Representatives, and upon amendments,
if any, which have been made therein by one House
and not agreed to by the other, and any such amendments
which are affirmed by an absolute majority of the total number
of the members of the Senate and House of Representatives
shall be taken to have been carried, and if the proposed
law, with the amendments, if any, so carried is
affirmed by an absolute majority of the total number of the
members of the Senate and House of Representatives, it
shall be taken to have been duly passed by both Houses of
the Parliament, and shall be presented to the Governor
General for the Queen's assent." (at p141)
8. The Commonwealth in its defence of the validity of the Act advanced four
main propositions. In the first place it was submitted
that in the
circumstances the Senate rejected the proposed law or failed to pass it on
13th December 1973. If this is correct it
was not contested that the other
requirements of s. 57 were satisfied in relation to the Bill. Secondly it was
submitted that on
the proper construction of s. 57 the interval of three
months referred to is that which commences on the first passing of the
proposed
law by the House of Representatives. On this construction s. 57 was
satisfied even if the Senate did not reject or fail to pass
the Bill on 13th
December 1973. The Senate rejected or failed to pass the Bill on 2nd April
1974, the House of Representatives again
passed the Bill on 8th April 1974
after an interval of more than three months from its first passage through the
House of Representatives
on 12th December 1973 and the Senate again rejected
or failed to pass the Bill on 10th April 1974. The third submission was that
the words of the first paragraph of s. 57 are only directory and are not
conditions of the powers thereby conferred. Finally it
was submitted that
action taken under s. 57 is not justiciable in any court. (at p142)
9. Although the Commonwealth submitted that on the facts already outlined the
conclusion should be drawn that the Senate had rejected
or failed to pass the
Bill on 13th December 1973, it sought, if necessary, to rely on certain other
facts in support of that submission.
It is unnecessary to go into the
pleadings in the various actions, and it is sufficient to say that most of
these additional facts
are disputed, at least at the present stage of the
proceedings. The question that now arises, however, is whether evidence
tendered
to prove those facts would be admissible. The facts in question, as
alleged by the Commonwealth, may be summarized as follows.
The first and
second readings of the Bill in the Senate were moved by a Minister, who was of
course a member of the Government party.
The motion that the debate on the
second reading be adjourned until later in the day was moved by a member of
one of the Opposition
parties, and upon the resumption of the debate the
motion that the debate be adjourned and that the resumption of the debate be
an
order of the day for the first sitting day in February 1974 was moved by a
member of another Opposition party. This latter motion
was opposed by the
Government, and was contrary to the practice and conventions of the Senate,
according to which, if a motion for
an adjournment is passed, the mover of the
original motion should have the privilege of moving the resumption of the
debate upon
such original motion at a date and time chosen by him. It was
possible under the Standing Orders and in accordance with the practice
and
procedure of the Senate for the Bill to have passed through all its stages
without delay on 13th December 1973. At that time
the members of the
Government party did not constitute a majority of the members of the Senate
but the members of the Opposition
parties did constitute a majority. Speeches
made during the course of the debate in the Senate on 13th December 1973, and
in other
debates in the Senate and in the House of Representatives, both
before and after 13th December, revealed that the members of the
Opposition
parties knew that there was a possibility that there would be a simultaneous
dissolution of both Houses of Parliament
under s. 57 and in order to bring
about a simultaneous dissolution intended to defeat legislation introduced by
the Government.
Moreover, the members of the Opposition parties intended to
oppose the Bill and to adjourn it against the will of the Government.
The
question whether evidence to prove facts of this kind would be admissible may
be discussed more conveniently after the operation
and effect of s. 57 have
been considered. (at p143)
10. Under the Constitution the Senate does not occupy a subordinate place in
the exercise of legislative power. It is an essential part of the Parliament
in
which the legislative power of the Commonwealth is vested: see ss. 1, 58.
It is expressly provided by s. 53 of the Constitution that, except as provided
in that section, the Senate shall have equal power with the House of
Representatives in respect of all proposed
laws. Only three limitations are
imposed on the power of the Senate by s. 53: (1) proposed laws appropriating
revenue or moneys, or imposing taxation, shall not originate in the Senate;
(2) the Senate may not
amend proposed laws imposing taxation, or proposed laws
appropriating revenue or moneys for the ordinary annual services of the
Government;
and (3) the Senate may not amend any proposed law so as to
increase any proposed charge or burden on the people. Clearly the Senate
retains the power to amend any proposed law in any case that is not within the
specific prohibitions imposed by s. 53. The power of the Senate to reject a
proposed law - a power implicit in its position as one of the chambers of a
bicameral legislature
- is left untouched by s. 53 so that the Senate may
reject any proposed law, even one which it cannot amend. Moreover, under the
Constitution the House of Representatives has no power to control the Senate
in the exercise of its functions and in particular cannot compel
the Senate to
give immediate or prompt consideration to any particular measure. By dilatory
tactics the Senate may prevent the passage
of a proposed law without formally
rejecting it. The exercise of any of these powers by the Senate after a law
has been passed by
the House of Representatives may lead to a deadlock in the
process of law making and the purpose of s. 57 is to provide a means of
resolving such a situation. The term "deadlock", although commonly used in
this context, is perhaps misleading;
to invoke s. 57 it is not necessary that
the business of Parliament should have come to a complete standstill or that
the proposed law as to which
a disagreement exists should be one of vital
importance. It is more accurate to say that under s. 57 a Bill that has
originated in the House of Representatives may in certain circumstances become
law notwithstanding that it has not
been passed by the Senate. The
circumstances in which that exceptional result may be achieved are set out in
detail in s. 57. (at p144)
11. In Clayton v. Heffron [1960] HCA 92; (1960) 105 CLR 214 this Court considered the
effect of s. 5B of the Constitution Act, 1902 (N.S.W.), as amended, which
provides for the resolution of deadlocks between the two chambers of the
Legislature of New
South Wales. Section 5B has apparently been modelled to
some extent on s. 57, although there are important differences between the
two
sections. It commences with the words:
"If the Legislative Assembly passes any Bill other than aThe majority of the Court in Clayton v. Heffron discussed these words as follows (1960) 105 CLR, at p 242 :
Bill to which section 5A of this Act applies, and the Legislative
Council rejects or fails to pass it or passes it with any
amendment to which the Legislative Assembly does not agree
..."
"The provision is concerned with a refusal or neglect ofSub-section (4) of s. 5B provides as follows:
the Council to give effect to the Assembly's will in law making.
It is because the assent of the Council to a bill may be
withheld otherwise than by rejection that the alternative
'fails to pass' is added and that the provision deals specially
with amendment. Pursuing the same purpose, sub-s. (4)
provides a period of inaction as conclusive of failure to pass
a bill. These are considerations which point to an intention
to cover entirely the withholding by the Legislative Council
of its consent to a measure sent up to it by the Legislative
Assembly."
"For the purposes of this section the Legislative Council
shall be taken to have failed to pass a Bill if the Bill is not
returned to the Legislative Assembly within two months
after its transmission to the Legislative Council and the Session
continues during such period." (at p145)
12. This sub-section has no counterpart in s. 57 but notwithstanding this
difference between the two provisions the words "rejects
or fails to pass" in
s. 57 would seem to have an effect similar to that which this Court attributed
to them in s. 5B. In the same
case, Fullagar J. said that (1960) 105 CLR, at
p 261 " 'rejection' and 'failure to pass' (as defined in sub-s. (4)) are
intended
to cover everything that the Council may do with the Bill other than
to accept it". These words, if taken literally, would go further
than those
used by the majority, and if so understood would seem to be far too wide since
they would suggest that even a short adjournment
made in the ordinary course
of procedure would amount to a rejection or failure to pass the Bill. In my
opinion, however, Fullagar
J. did not intend that his words should have so
wide a meaning. Menzies J. stated the matter accurately when he said (1960)
105
CLR, at p 275 : "The overriding sense of the section is, therefore, that
nothing that the Legislative Council does, short of agreeing
with the
Legislative Assembly, can stop the process whereby a Bill will become law."
These general statements as to the effect of
the similar words of s. 5B,
although they provide a guide to the manner in which the construction of s. 57
should be approached,
do not solve the particular question that arises in the
present case. They were not made with the present situation in mind. (at
p145)
13. The words "rejects" and "fails to pass" convey similar ideas and it will
often be unnecessary to decide whether the action taken
by the Senate amounts
to one rather than the other. However, whereas the former expression suggests
that positive action has been
taken, the latter includes inaction. An adverse
vote resulting in the defeat of the Bill would amount to its rejection; for
example,
a Bill would be rejected if a motion that "this Bill be now read a
second time" was amended by leaving out "now" and adding "this
day six months"
- for such an amendment, if carried, is a traditional way of defeating a Bill
(see Odgers, Australian Senate Practice,
4th ed. (1972), pp. 254, 305, and
May's Parliamentary Practice, 18th ed. (1971), pp. 459, 486), and under Order
194 of the Standing
Orders of the Senate has the effect of finally disposing
of the Bill. A refusal to entertain a Bill transmitted by the House of
Representatives to the Senate would also be to reject it: see Clayton v.
Heffron [1960] HCA 92; (1960) 105 CLR 214 . However,
in the present case
the Senate did not
reject the Bill on 13th December 1973. On that day the Senate
neither refused
to entertain
the Bill nor defeated
it. Indeed, it is evident that the motion
of adjournment passed on that day did
not finally dispose of the
Bill, because
consideration
of the Bill was in fact subsequently resumed and the motion for
the second
reading of the Bill was eventually
negatived on 2nd April
1974.
Moreover, neither the nature nor length of the adjournment was such
as to
enable it to be said that
what purported to be an
adjournment was in truth a
rejection of the Bill: since 13th December was
the last day on which the
Senate
sat during 1973, the
order that the resumption of the debate be an
order of the day for the first
sitting day in February 1974 did
not put off
the debate
for any unreasonable period, if that be relevant. (at p146)
14. The question that remains on this aspect of the case is whether the
Senate on 13th December 1973 failed to pass the Bill within
the meaning of s.
57. The word "fails" in ordinary usage frequently, and perhaps normally,
connotes some default. That, however,
is not its only sense and in some
contexts it may mean no more than "omits" or "does not": see Collector of
Customs (N.S.W.) v.
Southern Shipping Co. Ltd. [1962] HCA 20; (1962) 107 CLR 279, esp at pp
295, 305 . On behalf of the Commonwealth it was submitted
that in the context
of s. 57 the words
"fails to pass" cannot connote any notion of fault or
breach of duty because one chamber of
the Parliament cannot
be said to be at
fault if it decides to exercise its powers in a way that is legally open to
it, such as by
preventing the passage
of a Bill without
rejecting it. The
important constitutional question to be decided does not in my opinion
depend
on nice shades
of meaning but on
more substantial considerations, and if the
words "fails to pass" in s. 57 are understood
as meaning "does not
pass" their
effect
will be the same as if they are regarded as directly importing a
suggestion of fault. In
the ordinary course
of procedure some time
must
elapse before a Bill introduced into the Senate can be passed through all
stages
in that chamber. It
was conceded by all parties
that if the Standing
Orders of the Senate had not been suspended it would have taken
at least three
sitting
days for the Bill to
have passed all stages in the Senate. But apart
from formal requirements embodied in
Standing Orders, which
may be amended
from
time to time, the Senate has the right, and it may be thought the duty,
to consider and
properly debate any proposed
law that comes
before it. There
is nothing in s. 57 that suggests that the Senate should be required
to depart
from its normal procedures
or to
dispense with proper consideration and full
debate simply because a Bill has been transmitted
to it by the House of
Representatives.
Indeed, s. 57 itself refers to the fact that the Senate may
pass a Bill with amendments and
plainly recognizes that if it does so
that
will not in itself amount to a failure to pass the Bill; this provides
support, if any
is necessary, for the view that the Senate
is entitled to
consider and deal with a Bill in the ordinary way without being said to
have
failed to pass it. It is very clear
that the section cannot mean that the
Senate has failed to pass a Bill, with all the consequences
that may be
entailed by such a
failure, if the Bill is not passed on the very instant of
its transmission to the Senate by the House
of Representatives. On any
view
the Senate must be allowed some time within which to pass a Bill before it can
be said to have failed
to pass it. However,
the section itself does not
expressly indicate what time is allowed for that purpose. In this respect its
provisions are in contrast
with those of more recent constitutional enactments
in other jurisdictions which enable a Bill to become
law if it has been passed
by one of the two Houses of the legislature but the other does not pass it
within a time specified in the
enactment: see the Parliament
Acts, 1911 and
1949 (U.K.); arts. 21 and 23 of the Constitution of Ireland; arts. 108 and 109
of the Constitution of India; ss. 5A(2) and 5B(4) of the Constitution Act,
1902 (N.S.W.), as amended, and s. 56(3) of the Constitution Act Amendment Act
1958 (Vict.), and compare s. 7 of the Legislative Council Act, 1914 (N.Z.)
(since repealed). The only provision
for the resolution of deadlocks in force
in Australia in 1900 appears to have been s. 16 of the Constitution Act
Further Amendment Act, 1881 (S.A.), which dealt with Bills which had been
passed by the Legislative Assembly in ensuing sessions
of Parliament when
(inter alia) "both such Bills shall have been rejected by or fail to become
law in consequence of any amendments
made therein by the Legislative Council";
this section did not enable the procedure for which it provided to be applied
where the
Legislative Council was simply guilty of inaction and neither
rejected nor amended the Bill, and it was therefore unnecessary to
specify a
time after which the Legislative Council might be taken to have failed to pass
the Bill. No doubt the framers of s. 57
considered this model but it appears
that they overlooked the difference made by the inclusion in s. 57 of the
words "fails to pass".
Another constitutional provision that may have been
considered - Ch. III of the Revised Amending Clause of 1891 in the Swiss
Constitution - provided for a referendum (inter alia) "when either division of
the Federal Assembly passes a resolution for the total revision
of the
Constitution, and the other division does not agree". That provision might
have raised the same question as that which has now arisen under s. 57, but I
have not seen any suggestion that in fact it has ever done so, or that the
possibility that it might do so was recognized
in 1900. Whatever the position
may be elsewhere, however, some time must be allowed for the Senate to decide
whether it will accept,
reject or amend a proposed law before it can be held
to have failed to pass it within s. 57, and since no time is provided by the
section itself, it must be implied that a reasonable time is allowed for that
purpose. The
learned Solicitor-General for the Commonwealth submitted that on
the proper construction of the section the Senate would fail to
pass a Bill if
it did not pass it once it had been given an opportunity to do so. However,
to require the Senate to dispose of a
Bill at the first available opportunity
would in some circumstances constrain the Senate to depart from its normal
procedures and
to curtail proper debate, and, as I have said, the House of
Representatives has no power to put the Senate in that position. Similarly,
s. 128 of the Constitution, which enables a referendum to be held on a
proposed law for an alteration of the Constitution (inter alia) "if either
House passes any such proposed law by an absolute majority, and the other
House rejects or fails to pass
it, or passes it with any amendment to which
the first-mentioned House will not agree ..." is not intended to enable either
House
to require the other to rush to an immediate conclusion on a matter of
the greatest importance. If in s. 57 the words "fails to pass" are understood
as equivalent in meaning to "does not pass", it is necessary in order to give
proper sense
to the section to imply in it such words as "within a reasonable
time", since the natural implication to be made is that the Senate
should have
a reasonable opportunity to consider and make a decision upon a Bill before it
can be said to fail to pass it. If the
words "fails to pass" are understood
as importing some element of fault, exactly the same result is reached; there
will be a failure
to pass a Bill only when the Senate, having had a reasonable
opportunity to pass it, does not do so. (at p148)
15. It is in my judgment impossible to hold that the Senate failed to pass
the Bill within the meaning of s. 57 of the Constitution on 13th December
1973. Since the Senate did not pass the Bill on that date, the question is
whether a reasonable time for the Senate
to deliberate and decide upon the
Bill had then elapsed. The Bill, although passed by the House of
Representatives on the preceding
day, was first transmitted to the Senate on
13th December. The motion that so much of the Standing Orders be suspended as
would
prevent the Bill being passed through all its stages without delay was
carried pursuant to Standing Order 448 which provided as follows:
"In cases of urgent necessity, any Standing or Sessional
Order or Orders of the Senate may be suspended on Motion,
duly made and seconded, without Notice: Provided that
such Motion is carried by an absolute majority of the whole
number of Senators." (at p149)
16. It was submitted on behalf of the Commonwealth that in passing this
motion the Senate recognized that the matter was one of
urgency, and that in
subsequently adjourning the motion that the Bill "be now read a second time"
it failed to give effect to the
wish of the Government and of the House of
Representatives that the Bill be passed immediately. It would be paradoxical
to treat
the action of the Senate in enabling consideration of the Bill to be
expedited as evidence of an intention to obstruct the Bill's
passage. In fact
the House of Representatives, in its message to the Senate, did not state that
in its opinion the Bill should be
passed as a matter of urgency and when the
Bill was read in the Senate no Minister declared that it was an urgent Bill
pursuant to
the procedure provided by Standing Order 407B for the limitation
of debate on urgent Bills. The word "now" is normally used when
the question
for second reading is proposed (see Standing Order 193) and does not reveal an
intention that the second reading shall
take place instantly, without debate.
These considerations make it difficult, if not impossible, for the
Commonwealth to sustain
the argument that the Senate acted in opposition to
the will of the House of Representatives when it did not pass the Bill on 13th
December. In any case, that is not the test suggested by s. 57. Although it
is no doubt correct to say that s. 57 is concerned
with the refusal or neglect
of the Senate to give effect to the will of the House of Representatives in
law making (see Clayton v.
Heffron (1960) 105 CLR, at p 242 and Cormack v.
Cope, per Stephen J. [1974] HCA 28; [1974] HCA 28; (1974) 131 CLR 432, at pp 468, 469 ), the section
does
not
take as the criterion for its application the fact that the Senate has
simply failed to bow to the will of the House. For
example,
if the House of
Representatives transmitted a Bill to the Senate, with
a request that it be
concurred in without amendments,
and
the Senate passed it with amendments, the
first requirement of s. 57 would
not be satisfied until the House had
subsequently
indicated
its disagreement with the amendments. Even if the
section acknowledges
that "ultimately the will of the House is most
likely to
prevail" (as Stephen J. said in Cormack v. Cope (1974) 131 CLR, at p 468
),
the procedure which the section provides for
the resolution
of differences
between the Houses does not necessarily mean that the
wishes of the House of
Representatives will eventually
be given
effect. What is more important is
that nothing in the section favours
the notion that the House of
Representatives can
require the
Senate to treat as urgent any Bill that the
House happens to think ought
to be treated urgently, or that the view of
the
Government
or of the House of Representatives as to when a Bill should be
passed
should be treated as decisive. In some cases
there might be
room for
doubt and disagreement as to whether a time had been reached
within which the
Senate, acting reasonably,
would have disposed
of any particular Bill. It is
undesirable to attempt to provide
a guide for the solution of doubtful cases
that
may never arise.
It is enough to say that on no possible view can it be
said that
the Senate failed to pass the Bill within the
meaning of s. 57
on
13th December 1973. It is true that once the motion for the suspension
of the
Standing Orders had been passed
it was possible
for the Bill to be passed
through all stages in the Senate on that day. It
does not, however, follow
that it can
be held that the
Senate was unreasonably dilatory in failing then
finally to dispose of it.
The Senate was not bound to cut short
its debates
for
the purpose of passing, rejecting or amending the Bill on the very day on
which it was introduced. As was put in
argument, it could
not be compelled to
deliberate with one eye on the clock. The Senate
took no more than a
reasonable time in its
deliberations when
it failed to conclude them within
one day. (at p150)
17. The facts asserted by the Commonwealth, as to the statements made in the
Senate and the House of Representatives, not only on
13th December 1973, but
before and after that date, are irrelevant to the questions that I have been
discussing, and inadmissible.
Section 57 is concerned with the action or
inaction of the Senate as a body and not with the opinions, intentions or
motives of individual
senators. No doubt in endeavouring to discover the true
character or significance of what the Senate has done or failed to do it
will
be relevant to have regard to surrounding circumstances, such as when the
proposed law first came before the Senate and what
resolutions were thereafter
passed with regard to it, and also to the general practice of the Senate in
dealing with Bills transmitted
to it by the House of Representatives. However,
speaking generally, what senators say in the course of debate is not relevant
in
determining the nature or effect of any resolution passed by the Senate.
It must surely be beyond argument that what was said in
the Senate could have
no possible bearing on the question whether the Senate has passed a proposed
law with amendments to which the
House of Representatives will not agree; the
passing of the proposed law with amendments is established by the resolution
of the
Senate and the subsequent refusal of the House of Representatives to
agree to the amendments will be shown by the resolution of that
House and
nothing said in the Senate could assist in resolving the question one way or
the other. In the same way the question whether
the Senate has rejected a
proposed law depends on what the Senate has done rather than on what
individual senators intended or wished
to do. If it be assumed in the present
case that what was said by certain senators would warrant the conclusion that
on 13th December
1973 a majority of members of the Senate, being members of
parties not in government, intended, contrary to the known wishes of the
Government, to defeat the Bill at some future date, and intended or wished to
bring about a simultaneous dissolution of both Houses,
that is not relevant to
the questions that arise under s. 57. Whether the Senate rejected the Bill on
that day depends on what resolution
was then passed, and since it is clear
that the resolution itself did not amount to a rejection of the Bill it is
nothing to the
point that a majority of senators may have intended to reject
it on a subsequent occasion. The Solicitor-General for the Commonwealth
submitted that the adjournment of the debate was the first step taken pursuant
to a decision to reject the Bill and that it was a
device to postpone the time
of rejection, but if so, s. 57 was not satisfied - it requires a rejection,
not an intention or plan
to reject in the future. Similar considerations
apply in relation to the question whether the Senate on 13th December 1973
failed
to pass the Bill. Since the Senate did not pass the Bill on that day
the question, as I have said, is whether the time which had
then elapsed from
the time when the Bill was passed by the House of Representatives and
transmitted to the Senate was more than reasonable
to allow the Senate to
consider and decide upon the Bill. That is an objective question the answer
to which is not assisted by a
consideration of the motives and intentions of
individual senators. The fact that a majority of senators intended ultimately
to
defeat the Bill could not be relevant to the question whether on the date
in question more than a reasonable time had elapsed without
the Senate having
passed the Bill. The fact that a majority of senators knew that it was
possible that a simultaneous dissolution
of both Houses of Parliament might be
granted under s. 57, and intended to bring this about if they could, is also
quite irrelevant
to the question whether on the material date the Senate
rejected or failed to pass the proposed law. (at p152)
18. There is a further reason why evidence of the views expressed in debate
by members of the Senate is not admissible on these
questions. It would be
neither fitting nor profitable for a court to inquire whether the statements
made by one senator represented
the opinions, intentions or motives of the
majority of the members of the Senate. It is no doubt true that nowadays,
contrary to
the expectations of some of the framers of the Constitution, the
Senate normally divides along party lines. However, it would be unreal to
suppose that everything that is said by any member
of one party, however
eminent, even its leader, necessarily reflects the views or binds the actions
of all the other members of his
party. It would be even less safe to regard
what was said by a member of one party as an indication of the opinions and
intentions
of members of another party, even if both parties were in
opposition and the views of their spokesmen seemed similar. This question
is
analogous to that which arises in the construction of Acts of Parliament. It
is now firmly established that what has been said
in Parliament may not
legitimately be regarded for the purpose of ascertaining the intention
expressed in a statute: see the authorities
cited in Halsbury's Laws of
England, 3rd ed., vol. 36, p. 410, par. 622, n. (u). This rule is not merely
a technical one; as Lord
Reid said in Beswick v. Beswick [1967] UKHL 2; (1968) AC 58, at p 74
, it rests on "purely practical reasons". In South Australia
v. The
Commonwealth,
Latham C.J. said [1942] HCA 14; (1942) 65 CLR 373, at p 410 :
"Reports of speeches in Parliament are also irrelevant
and inadmissible. There are two Houses of Parliament in the
Commonwealth. They consist of one hundred and ten voting
members belonging to different parties or to no parties.
Members of Parliament frequently have differing opinions,
not only as to the merits and real objects of Bills presented,
but as to their meaning. Neither the validity nor the interpretation
of a statute passed by Parliament can be allowed
to depend upon what members, whether Ministers or not,
choose to say in parliamentary debate. The Court takes the
words of Parliament itself, formally enacted in the statute,
as expressing the intention of Parliament....." (at p152)
19. Similar considerations support the conclusion that it would not be
permissible to give evidence of what was said in the course
of debate in the
Senate for the purpose of ascertaining the intention with which the Senate
acted; whether it intended to reject
a proposed law, for example, must be
found by considering the nature of the resolution actually passed against the
background provided
by the surrounding circumstances and not by inquiring into
the intentions of individual senators. The Solicitor-General for the
Commonwealth, in arguing in favour of the admissibility of this evidence,
submitted that the authorities show that it is sometimes
admissible to
determine the object or purpose of a statute by having regard to the debates
in Parliament; he particularly relied
on Attorney-General (Alberta) v.
Attorney-General (Canada), where it was said (1939) AC 117, at p 131 :
"It must be remembered that the object or purpose of
the Act, in so far as it does not plainly appear from its terms
and its probable effect, is that of an incorporeal entity,
namely, the Legislature, and, generally speaking, the
speeches of individuals would have little evidential weight."(at p153)
20. The Solicitor-General submitted that in that passage, and in references
to it in this Court by Evatt J. in Deputy Federal Commissioner
of Taxation
(N.S.W.) v. W.R. Moran Pty. Ltd. [1939] HCA 27; (1939) 61 CLR 735, at p 794-795 , and by Rich
J. in Arthur Yates &
Co. Pty. Ltd. v.
Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR
37, at p 72 , it was recognized that in some circumstances
the speeches of
individuals in
the legislature may have some evidential
weight. However, the
remarks in the cases cited were directed
to the question what evidence
might
be given to establish the existence
of an unauthorized purpose where the power
of a legislature
was defined by reference to
purpose - see also the discussion
in Arthur
Yates & Co. Pty. Ltd. v. Vegetable Seeds Committee, per
Latham C.J.
(1945) 72 CLR, at
pp 67-68 , per Starke J. (1945) 72 CLR,
at pp 74-76 , and
per Dixon J. (1945) 72 CLR, at pp 81-83 .
If the passage cited from
Attorney-General
(Alberta) v. Attorney-General
(Canada) (1939) AC, at p 131
is to be regarded as authority
for the admission of evidence of speeches
of
individual members of Parliament
in some cases where it is necessary to
determine the
purpose of challenged legislation (a question
I need not
consider), it has no
application to the present case, since s. 57 is not
concerned with the purposes with which the Senate
has acted. Evidence of the
speeches made in the Senate is in my opinion inadmissible
on the wider
principle that the effect of what
the Senate has done or failed
to do does not
depend on the opinions, intentions or
motives of individual senators as well
as on the
narrower ground that the statements
relied on by the Commonwealth in
the present
case are not relevant to the question whether the
Senate rejected
or failed to pass
the Bill. A fortiori the statements made in the
House of
Representatives are inadmissible. (at
p154)
21. In my judgment, therefore, the Senate did not reject or fail to pass the
Bill, within s. 57, on 13th December 1973. (at p154)
22. The alternative submission made on behalf of the Commonwealth is that the
interval of three months referred to in s. 57 commences
not when the Senate
rejects or fails to pass a Bill or passes it with amendments to which the
House of Representatives will not agree,
but when the House of Representatives
first passes it. It was submitted that the purpose of the section - which it
was said was
to give effect to the will of the House of Representatives - its
language and the difficulty of calculating the period from so uncertain
an
event as the failure to pass a proposed law support this view. The object of
allowing an interval of three months was said to
be to demonstrate that the
House of Representatives persisted in its desire to pass the proposed law.
These arguments cannot be accepted.
I have already indicated that I do not
agree that s. 57 is designed to allow the will of the House of Representatives
to prevail
over that of the Senate; its purpose is to provide a means of
avoiding a deadlock when the two Houses are in conflict. But in any
case the
grammatical arrangement of s. 57 very strongly suggests that the interval of
three months is one that commences when the
Senate rejects or fails to pass
the proposed law or passes it with amendments to which the House of
Representatives will not agree.
(It is unnecessary to decide whether, if the
Senate passes the Bill with amendments, the time begins to run from that date,
or from
the time when the House of Representatives records its disagreement
with the amendments.) The argument that it is not possible to
say with
certainty when the Senate fails to pass a proposed law, or, as it was also
put, that it is not possible to commence to compute
time from an event which
does not happen, is not valid; a court is capable of deciding when a
reasonable time has elapsed from the
first passing of the law by the House of
Representatives and if the Senate has not passed the proposed law within that
time it must
be held to have failed to pass it; the date at which the
reasonable time expires, being ascertainable, is no less certain than that
on
which the House of Representatives passed the Bill. The strongest argument
against the construction urged on behalf of the Commonwealth
is that the only
sensible reason that can be suggested for the allowance of an interval between
the two sets of events is "for consideration
and possible compromise" (to use
the words of Quick and Garran: Annotated Constitution of the Australian
Commonwealth (1901), p. 684), or in other words "for attempted reconciliation
of differences" (as Stephen J. said
in Cormack v. Cope (1974) 131 CLR, at p
471 ). There would have been no useful reason for insisting upon an interval
a great part
of which might conceivably have expired before the Senate had had
a reasonable opportunity to dispose of the proposed law. The conclusion
that
I have reached - that the interval of three months begins on the happening of
one of the three events mentioned in s. 57 - is that already expressed in
Cormack v. Cope by Barwick C.J. (1974) 131 CLR, at p 457 , and by Stephen J.
(1974) 131 CLR, at p
471 . (at p155)
23. Although the Senate rejected or failed to pass the Bill on 2nd April 1974
no interval of three months expired after that date
before the second passage
of the Bill by the House of Representatives on 8th April 1974. It follows
that it cannot be said of the
Bill that the House of Representatives passed
it, and that the Senate rejected or failed to pass it, and that after an
interval of
three months the House of Representatives in the same or the next
session again passed it, as contemplated by the first paragraph
of s. 57. (at
p155)
24. On behalf of the Commonwealth it was next submitted that the provisions
of s. 57 are merely directory. As I understand the judgments in Cormack v.
Cope [1974] HCA 28; (1974) 131 CLR 432 , this contention is contrary
to the views
expressed
by five of the members of the Court who sat on that case
- see (1974) 131 CLR,
at pp 461, 463, 466, 474 .
The question
was fully reargued, but I remain of
the opinion that s. 57 attaches conditions to the grant of the powers which it
confers. The section, by its first and second paragraphs, invests the
Governor-General
with two powers of an extraordinary kind. The first is to
dissolve the Senate and the House of Representatives simultaneously.
The
Constitution makes no other provision for the dissolution of the Senate than
that contained in s. 57. The members of the Senate are chosen in rotation,
and when the term of service of one class of senators expires, writs may be
issued
for the election of the senators of that class (under s. 12 of the
Constitution) but the Senate is not dissolved. The Governor-General is given
power by ss. 5 and 28 of the Constitution to dissolve the House of
Representatives and that power appears to be unconditional and unrestricted,
although since the Constitution is founded on the principles of responsible
government it may be assumed that His Excellency will exercise that power in
accordance
with those principles. However, His Excellency has no similar
power to dissolve the Senate. The second special power conferred
by s. 57 is
to convene a joint meeting of the Senate and the House of Representatives and
if a proposed law which has passed through the procedure
laid down in s. 57 is
affirmed by an absolute majority of the members of the two Houses at the joint
sitting it is to be taken to have been duly passed
by both Houses. An
exception is thus provided to the general rule laid down by the Constitution
that the legislature shall be bicameral and that the Senate shall be an
essential part of it. The nature and importance of the powers
conferred by s.
57 are such as to suggest that they may only be exercised in the circumstances
which that section carefully defines. The words of s. 57 admit of no other
conclusion - the powers are in terms granted only if the events mentioned have
occurred; the happening of those
events is made by the section a condition
precedent to the exercise of the powers. Further, the plain intention of the
section is
that a proposed law shall be taken to have been duly passed by both
Houses of the Parliament only if the conditions prescribed by
the section have
been fulfilled in relation to that proposed law; a law which had not satisfied
the requirements of the first two
paragraphs of s. 57 could not properly be
described as "the proposed law" within the meaning of the third paragraph. (at
p156)
25. The submission on behalf of the Commonwealth was supported by the
argument that the most serious inconvenience might result
if it were held that
the provisions of s. 57 were mandatory. It was said that if the powers given
by s. 57 could only validly be exercised when the conditions stated in that
section were fulfilled, and if the Governor-General, erroneously
thinking that
the conditions of the first paragraph had been satisfied, dissolved the
Parliament, not only would that act of dissolution
be void but so also would
any subsequent election; thereafter, so it was said, no Parliament could
validly be summoned and no valid
laws could be made. The question what
consequences would follow from a wrongful simultaneous dissolution of both
Houses of Parliament
does not directly arise in the present circumstances. No
one suggests that His Excellency acted beyond power in dissolving the Senate
and the House of Representatives on 11th April 1974; the conditions entitling
him to bring about a dissolution may have been satisfied,
and for all that
appears were satisfied, in respect of a number of other proposed laws.
However, I am not persuaded that the disastrous
consequences envisaged in the
argument of the Solicitor-General for the Commonwealth would be entailed if in
some future case the
Governor-General, acting without power, dissolved the
Senate and the House of Representatives simultaneously. One consequence of
such an invalid dissolution would clearly be that a proposed law affirmed by
an absolute majority at any subsequent joint sitting
of members of the Senate
and House of Representatives would not be valid for it would not have
satisfied the conditions of law making
laid down by s. 57. But the conditions
which s. 57 attaches to the exercise of the powers which it confers do not
also attach to the powers given by ss. 12 and 32 of the Constitution to cause
writs to be issued for the election of members of the Senate and of the House
of Representatives. If the Senate were in
fact dissolved, and if thereafter
writs for an election were issued, the election was held and a new Parliament
was summoned to meet,
I can see no difficulty in holding that the new
Parliament would have validly assembled. This of course is not to suggest
that this
Court could not intervene to uphold the Constitution and prevent an
invalid proclamation for the dissolution of the Senate from being given
effect. However, these questions need not
be further discussed. The plain
words of s. 57 cannot be denied their true effect for fear of what might
possibly ensue if the Governor-General exceeded his constitutional powers.
The supposition that His Excellency would so act is not to be made. The
wrongful dissolution of the Senate would in itself amount
to an infringement
of the Constitution serious enough to require His Excellency and his advisers
to give the most anxious consideration to the question whether the power
given
by the first paragraph of s. 57 could validly be exercised in any particular
set of circumstances. It is hardly necessary to add that it is not suggested
that His
Excellency or his advisers failed in that duty in the present case.
Arguments based on the suggestion that His Excellency may at
some future time
exceed his powers and thereby throw the government of the nation into
confusion do not warrant this Court holding
that a proposed law affirmed by a
joint sitting is validly made notwithstanding that the conditions prescribed
by s. 57 for the making of laws by that procedure have not been satisfied. (at
p157)
26. The decision of this Court in Clayton v. Heffron [1960] HCA 92; (1960) 105 CLR 214 , on
which the Commonwealth strongly relied,
is distinguishable
from the present
case. Some reference has already
been made in this judgment to that decision,
and the introductory
words of s.
5B(1) of the Constitution Act, 1902 (N.S.W.),
as amended, which were there considered, have already been cited, but it is
now convenient to set out in full
the provisions of that sub-section. They
were as follows:
"If the Legislative Assembly passes any Bill other than aSub-section (2) enabled the Legislative Assembly, after the joint sitting, to submit the proposed Bill by way of referendum to the electors qualified to vote for the election of members of the Legislative Assembly. Section 5B(3) provided as follows:
Bill to which section 5A of this Act applies, and the Legislative
Council rejects or fails to pass it or passes it with any
amendment to which the Legislative Assembly does not
agree, and if after an interval of three months the Legislative
Assembly in the same Session or in the next Session
again passes the Bill with or without any amendment which
has been made or agreed to by the Legislative Council, and
the Legislative Council rejects or fails to pass it or passes it
with any amendment to which the Legislative Assembly
does not agree, and if after a free conference between managers
there is not agreement between the Legislative Council
and the Legislative Assembly, the Governor may convene a
joint sitting of the Members of the Legislative Council and
the members of the Legislative Assembly.
The Members present at the joint sitting may deliberate
upon the Bill as last proposed by the Legislative Assembly
and upon any amendments made by the Legislative Council
with which the Legislative Assembly does not agree.
No vote shall be taken at the joint sitting."
"If at the referendum a majority of the electors voting
approve the Bill it shall be presented to the Governor for the
signification of His Majesty's pleasure thereon and become
an Act of the Legislature upon the Royal Assent being signified
thereto, notwithstanding that the Legislative Council
has not consented to the Bill." (at p158)
27. The facts of Clayton v. Heffron were as follows. The Legislative
Assembly passed a Bill providing (inter alia) for the abolition
of the
Legislative Council, the Bill was (as it was held) rejected by the Legislative
Council and after an interval of three months
the Bill was again passed by the
Assembly and rejected by the Council. The Assembly then requested a free
conference of managers
but the Council refused the request. The Governor
thereupon convened a joint sitting; the Council resolved that its members
should
not attend but a meeting of certain members of both Houses was in fact
held. Later, the Assembly directed that the Bill be submitted
to a
referendum. It was held by the Court (Fullagar J. dissenting) that the
failure to hold a free conference of managers and the
resolution of the
Legislative Council not to take part in the joint sitting convened by the
Governor would not result in the invalidity
of the statute once it had been
approved by a majority of the electors at a referendum and assented to by the
Crown in accordance
with s. 5B. Three members of the Court (Fullagar, Kitto
and Menzies JJ.) held that the requirements of s. 5B(1) were imperative,
although Kitto and Menzies JJ. thought that the section must be construed
subject to an implied qualification which would render
inapplicable the
condition that a conference of managers be held if the Council was not willing
to send managers to such a conference.
The majority of the Court (Dixon C.J.,
McTiernan, Taylor and Windeyer JJ.) did not decide whether the provision as to
the holding
of a joint sitting was imperative because they rejected as
untenable the submission that the meeting in fact held was not a joint
meeting
within s. 5B because the Council had resolved that its members should not
attend; the only remaining ground for suggesting
that no joint meeting within
s. 5B(1) was held was that the conference of managers had not first been held.
Their Honours held that
the requirement that a joint conference of managers be
held was not imperative. Their conclusion on this point was expressed as
follows (1960) 105 CLR, at p 248 :
"The real point sought to be made is that a free conferenceThe reasons given for reaching that conclusion (1960) 105 CLR, at pp 244-248 reveal two important points of distinction between that case and the present. One circumstance that supported the view that a failure to hold a free conference of managers would not result in the invalidity of a statute enacted under s. 5B was that the Legislative Council might decline the conference (1960) 105 CLR, at p 247 . As to this their Honours said (1960) 105 CLR, at pp 246-247 :
is an essential condition of the ultimate validity of any
statute enacted under s. 5B. To that the answer is that
according to the principles governing the invalidation of
statutes for deviation from the legislative procedure laid
down by law no such invalidity should be held to ensue as
a consequence of the lack of a meeting of managers in a
free conference."
"The preliminary step of appointing managers freely to
confer rested on the co-operation of both Houses in a conflict.
It would rest with either House to neglect the duty and
so bring the proceedings to nought. True it is that one contention
is that a condition should be implied that the Council
or the Assembly or for that matter neither of them may
defeat the operation of s. 5B by doing so. But once the conclusion
is reached that a failure to perform the requirement
of holding a free conference by managers spells invalidity of
the ultimate statute, to make such an implication seems to
amount to extracting from the interpretation which is first
placed on the clause an implication to avoid a necessary
consequence of that interpretation." (at p160)
28. Similar considerations do not apply when the requirement is that one
chamber of a legislature should reject or fail to pass
a proposed law and that
after an interval of three months the other chamber should pass it for a
second time. There is not the least
suggestion in any of the judgments in
Clayton v. Heffron [1960] HCA 92; (1960) 105 CLR 214 that a failure to observe the
requirements
of s. 5B
as to the Legislative Council rejecting or failing to
pass
a proposed law or passing it with amendments to which the Legislative
Assembly does not agree would not have affected the validity
of the resulting
statute. On the contrary, the very fact that the Court
felt it necessary to
decide the question whether the Legislative
Council had rejected the proposed
law suggests that they considered
that the section made that an imperative
condition. The second
point of distinction that appears from the reasons of
the majority
is that the statute there sought to be enacted was an amendment
to the Constitution; their Honours pointed out (1960) 105 CLR, at p 246 that
"if the statute is to be void every future piece of legislation passed
by the
Legislature of the State so constituted will have no force or effect" (see
also (1960) 105 CLR, at p 247 ). This second consideration
is not unconnected
with the first, and depends to some extent on the nature of the statutory
requirement in question, for it could
hardly be suggested that a similar
argument would justify the validation of a statute that, for example, had
never been submitted
to the Legislative Council at all. Section 57 of course
does not deal with amendments to the Constitution. As I have already said, the
Commonwealth did advance the argument that if the two Houses of the Parliament
were invalidly dissolved
no subsequent Parliament could validly be assembled,
but I have already indicated that I find this argument unconvincing. (at
p160)
29. The judgment of the majority in Clayton v. Heffron suggests that there
may be a third reason for drawing a distinction between
that and the present
case. Their Honours said (1960) 105 CLR, at p 245 :
"Under the federal system we have grown so accustomedIf it is correct to draw a distinction for this purpose between unitary and federal constitutions, s. 57 finds its place in a federal constitution. However, for reasons which I shall give, I think, with the greatest respect, that it was not quite accurate to regard the distinction which their Honours drew as depending on the differences between a unitary and a federal constitution. (at p161)
to attacks upon the validity of Acts of Parliament that it is
easy for us to overlook the principles which apply to a unitary
system when legislation is attacked because it is not an
authentic expression of the legislative will. Although New
South Wales no longer enjoys a unitary constitution, it is by
those considerations that the problem is governed."
30. The Commonwealth also relied on dicta in Osborne v. The Commonwealth
[1911] HCA 19; (1911) 12 CLR 321, at pp 336, 351-352,
355 and Buchanan
v. The Commonwealth
[1913] HCA 29; (1913) 16 CLR 315, at p 329 , that the provisions of s. 53 relating to
"proposed laws" are directed only to the internal affairs of Parliament and do
not create obligations which courts can
enforce, or as was said, are only
directory. It was submitted that the use of the expression "proposed laws" in
s. 57 should lead to a similar conclusion in relation to that section. It is
quite unnecessary to consider the question discussed in those
cases but,
assuming the dicta to be correct, they do not assist in deciding the present
case. The first four paragraphs of s. 53 deal with the respective powers of
the two Houses of the Parliament in relation to the initiation or amendment of
proposed laws of
certain kinds. It is understandable that those paragraphs
may be regarded as relating to matters of procedure within Parliament
with
which the courts are not concerned. Section 57, on the other hand, provides a
special means of legislation by which in certain cases laws may be enacted
without passing through
both Houses of Parliament. Where it is asserted that
a law has been passed by the extraordinary means allowed by s. 57 it is
competent for the court to inquire whether in fact the method of legislation
allowed by that section has been adopted, and
whether the provisions of the
section that govern legislation by that method have been observed. (at p161)
31. It was said in Woodward v. Sarsons (1875) LR 10 CP 733, at pp 746-747 ,
and has often been repeated in judgments of great authority,
that "the general
rule is, that an absolute enactment must be obeyed or fulfilled exactly, but
it is sufficient if a directory enactment
be obeyed or fulfilled
substantially". I must, with respect, confess that I find it difficult to
accept that this is a correct statement
of the distinction between mandatory
or imperative and directory enactments; I would be inclined to prefer the
statement in Clayton
v. Heffron, where it was said (1960) 105 CLR, at p 247 :
"Lawyers speak of statutory provisions as imperativeIn the present case it was submitted by the Commonwealth that there has been a substantial compliance with the requirements of s. 57. If that be a relevant test I cannot agree that it has been satisfied. Either the Senate rejected or failed to pass the Bill on 13th December 1973 or it did not; if it did not, there has not been a substantial compliance with the requirements of s. 57 - there has been an almost total failure to observe the important requirement that an interval of three months should have elapsed before the House of Representatives passed the Bill for the second time. However, since, in my opinion, the provisions of s. 57 were not directory, I do not find it necessary to pursue these questions further. (at p162)
when any want of strict compliance with them means that the
resulting act, be it a statute, a contract or what you will, is
null and void. They speak of them as directory when they
mean that although they are legal requirements which it is
unlawful to disregard, yet failure to fulfil them does not mean
that the resulting act is wholly ineffective, is null and void."
32. The final submission of the Commonwealth, that the issues raised in the
case are not justiciable, is perhaps only another aspect
of the question
already discussed. This submission too has already been decisively rejected
in Cormack v. Cope (1974) 131 CLR, at
pp 452, 461, 462, 467, 472 ; contra
(1914) 131 CLR, at p 461 . In advancing this submission before us the
Solicitor-General rested
his argument on the principle, well-settled in the
United Kingdom, that a Bill which has passed through both Houses of Parliament
and has received the Royal assent cannot be questioned in the courts on the
ground that the proper procedure has not been followed
in passing it. In
Edinburgh and Dalkeith Railway Co. v. Wauchope, Lord Campbell stated the
principle as follows (1842) 8 Cl &
F
710, at p 725; 8 ER 279, at p 285. :
"All that a Court of Justice can do is to look to the parliamentary
roll: if from that it should appear that a bill has
passed both Houses and received the Royal assent, no Court
of Justice can inquire into the mode in which it was introduced
into Parliament, nor into what was done previous to
its introduction, or what passed in Parliament during its progress
in its various stages through both Houses." (at p163)
33. The statement was obiter, but it correctly expressed the law: British
Railways Board v. Pickin [1974] UKHL 1; (1974) AC 765,
at pp 786-787,
790, 793, 799-800,
801-802 . In the United Kingdom, if a statute has been passed by Parliament,
the courts will not
entertain a
suggestion that there has been irregularity or
impropriety in the course of its passage. The decisions
which have expounded
and
applied this principle are, however, no authority for holding that a court
has no jurisdiction to go behind
a statute which has
not
been passed by
Parliament as ordinarily constituted, but has been enacted by a different
method which the
Constitution permits to be used only if certain conditions
are satisfied. A law so enacted will be valid only if the conditions are
satisfied,
and the courts have jurisdiction to declare the invalidity of any
such law if there has been a failure to satisfy those conditions.
The
principle that the courts may not examine the way in which the law-making
process has been performed has no application where
a legislature is
established under or governed by an instrument which prescribes that laws of a
certain kind may only be passed if
the legislature is constituted or exercises
its functions in a particular manner, e.g. by the members of both Houses
sitting together
(as was required by the South Africa Act: Harris v. Minister
of the Interior 1952 (2) SALR 428 ; sub nom. Harris v. Donges (1952)
1 TLR
1245 ) or by a two-thirds majority (which was rendered necessary by the Ceylon
(Constitution) Order in Council considered in
Bribery Commissioner v.
Ranasinghe [1964] UKPC 1; (1965) AC 172 ). These cases decide that when the law requires a
legislature to enact legislation
in a particular manner, the courts
may
investigate whether the legislature has exercised its powers in the manner
required; this
is recognized also in McCawley v. The
King (1920) AC 691, at pp
703-704, 712, 714; [1920] UKPCHCA 1; (1920) 28 CLR 106, at pp 114-
-115, 123, 125.
and McDonald
v. Cain [1953] VicLawRp 62; (1953) VLR 411, at pp 419, 425-426, 433-435 . In all of these cases
it happens
that the restrictions
on the
manner of the exercise of legislative
power that had to be considered related to amendments to the Constitution, but
the principle which has been evolved is not limited to constitutional
amendments. Nor did the decision in these cases in any
way depend upon the
provisions of s. 5 of the Colonial Laws Validity Act, 1865; that Act no longer
applied to the laws of Ceylon
or South Africa at the times when the decisions
that respectively related to those countries were given. The principle that
underlies
these decisions was expressed succinctly by Lord Pearce in Bribery
Commissioner v. Ranasinghe (1965) AC, at p 197 in the following
words: "a
legislature has no power to ignore the conditions of law-making that are
imposed by the instrument which itself regulates
its power to make law". He
distinguished the English authorities by saying that "in the Constitution of
the United Kingdom there is no governing instrument which prescribes the
law-making powers and the forms which are essential to
those powers" (1965)
AC, at p 195 . (If the Parliament Acts, 1911 and 1949 (U.K.) can properly be
regarded as an instrument of that
kind, questions such as those that now arise
will nevertheless be unlikely to fall for decision under those Acts, because
they provide,
by ss. 2(3) and 3, that when a Bill is presented for the Royal
assent there shall be indorsed upon it the certificate of the Speaker of the
House of
Commons that the provisions of the section have been duly complied
with, and that any such certificate shall be conclusive for all
purposes.)
The duty of the courts to inquire whether the conditions of law making have
been fulfilled does not depend on whether
or not a legislature is sovereign;
the legislatures of Ceylon and of South Africa were sovereign legislatures.
Nor does it depend
on whether the legislature forms part of a unitary or a
federal system; Ceylon and South Africa were unitary constitutions. The
remarks
of their Lordships in McCawley v. The King (1920) AC, at pp 703-704;
(1920) 28 CLR, at pp 114-115 support this view, and appear
inconsistent with
what was later suggested in Clayton v. Heffron (1960) 105 CLR, at p 245 . The
distinction is between legislatures
which are, and those which are not,
governed by an instrument which imposes conditions on the power to make laws.
(at p164)
34. Section 57 does not merely prescribe a procedure to be observed within
Parliament; it bears no analogy to the Standing Orders of the two Houses
with
whose enforcement the courts are not concerned. It provides for a special
mode of legislating which may, subject to certain
conditions, be used as an
alternative to the passing of laws through Parliament. If a so-called law has
neither been passed by both
Houses of Parliament nor enacted in accordance
with the provisions of s. 57, it is not a law of the Commonwealth at all.
This Court "has a duty to see that the Constitution is not infringed and to
preserve it inviolate": Bribery Commissioner v. Ranasinghe (1965) AC, at p
194 ; Cormack v. Cope (1974)
131 CLR, at p 455 . Where an attempt has been
made to enact laws by a means which the Constitution permits to be used only
subject to certain conditions, and those conditions have not been satisfied,
this Court is bound to declare
the invalidity of the resulting product. The
Act was not passed into law in accordance with the Constitution and is not
valid. (at p165)
35. The State of Victoria demurred to the defence in action No. 49 of 1974.
I would allow its demurrer. The other States did not
similarly demur in the
other actions but for convenience of procedure I would treat them as having
done so and would allow their
demurrers. For the reasons I have given, I
would then make a declaration that the Petroleum and Minerals Authority Act
1973 is not
a valid law of the Commonwealth of Australia. (at p165)
STEPHEN J. The Senate, on its last sitting day in 1973, the 13th December,
received from the House of Representatives a Bill which,
on the previous day,
had passed through all stages in that House. The Senate resolved to suspend
so much of its Standing Orders
as would prevent the Bill being passed through
all stages without delay and the Bill was then read a first time. However,
later
that day, during debate on its second reading, it was resolved to
adjourn debate until the Senate's next sitting day, being the first
day of
sitting in February of the following year. The Bill, a Bill for an Act to
establish a Petroleum and Minerals Authority, was
ultimately rejected by the
Senate on its second reading on 2nd April 1974. It was passed again by the
House on 8th April and later
rejected again by the Senate. There was then
applied to it the provisions of s. 57 of the Constitution, it being made one
of the grounds for the simultaneous dissolution of both chambers, followed by
a general election. It was later
again passed by the House, as reconstituted
after election, and again rejected by a reconstituted Senate, was then
submitted to and
affirmed at a Joint Sitting of both chambers and received the
Royal assent in August 1974. (at p165)
2. The question for the Court is whether it should declare this Act not to be
a valid law; involved are two considerations, whether
the procedure of double
dissolution and Joint Sitting ever became applicable to the Bill in view of
the terms of s. 57 and, if not,
whether invalidity justiciable by this Court
ensues. (at p165)
3. On the first point the plaintiff States contend that the circumstances
which may give rise to a double dissolution were not present.
The first
paragraph of s. 57 is as follows:
"57. If the House of Representatives passes any proposedIt is said that on 13th December 1973 there occurred no failure to pass the Bill within the meaning of this paragraph and that the "interval of three months" which must precede a second passing by the House is to be measured from the Senate's first rejection, failure to pass or passage with unacceptable amendments which, in the case of this Bill, first occurred when the Senate rejected the Bill on its second reading only a few days before its second passing by the House. It follows, it is said, that no occasion ever arose for a double dissolution or Joint Sitting in relation to this Bill. (at p166)
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."
4. For the defendant Commonwealth it is contended both that what happened on
13th December 1973 amounted to a failure to pass the
Bill within the meaning
of s. 57 and that in any event the "interval of three months" should be
computed from the first passing of
the Bill through all stages in the House of
Representatives. If either of these submissions be accepted it will follow
that the legislative
history of the Bill would justify the application to it
of the procedures of double dissolution and Joint Sitting contemplated by
s.
57. (at p166)
5. In Cormack v. Cope [1974] HCA 28; (1974) 131 CLR 432, at p 470 , I concluded that the
"interval of three months" only begins
to run upon the
happening of any one
of
the three events which the section identifies as first giving rise to
deadlock; only when
the Senate has
rejected a proposed law,
has failed to pass
it or has passed it with amendments which the House has found unacceptable
will the period
of three months commence.
(at p166)
6. The reasons upon which I then relied were three in number; the first
turned upon the use of the word "after" immediately following
the description
of the act or omission of the Senate which made manifest for the first time a
state of deadlock; the second relied
upon the existence of a sequence of
events in which the interval of three months naturally took its place as
occurring after some
one of these acts or omissions of the Senate. The third
reason had regard to what might be the legislative purpose involved in
providing
for this interval of time; only if it was to be reckoned from the
time of occurrence of the act or omission of the Senate did it
appear to me to
serve a useful purpose, the purpose of affording time for mature
reconsideration and, perhaps, for the attempted
reconciliation of differences.
These three considerations still appear to me to be valid and I would qualify
what I said in Cormack's
Case only in relation to my use of the expression
"act of the Senate", which was, I think, an ill-chosen phrase when applied to
the
case of the Senate passing a measure but with amendments unacceptable to
the House. In such a case I would, as at present advised,
regard time as
running not from the act of the Senate in passing the measure but from the
later date when the House rejects the amendments
or some of them. Only then
can the Senate's act be seen to answer the description given in s. 57. (at
p167)
7. However, the contentions which have been advanced on behalf of the
Commonwealth in the present case do call for some further
discussion of the
meaning of an "interval of three months" as well as a consideration of the
phrase "fails to pass". In the forefront
of the Commonwealth's submissions
concerning the interpretation of s. 57 was the contention that the section
gives effect to an important
constitutional concept, namely that in any
difference of view between the two chambers the will of the House should
prevail, and
should do so with as little delay as possible. This concept was
said to emerge from a proper understanding of the terms of s. 57
and in
particular from the fact that it was only to measures originating in the House
that its provisions applied, a rejection by
the House of a measure originating
in the Senate being incapable of leading to a double dissolution and a
subsequent Joint Sitting.
The concept that the will of the House should
prevail was to be explained by the more truly "popular" character of the House
as
a legislative chamber; the Senate, whose members are elected from
State-wide electorates with widely differing total numbers of electors,
necessarily, it was said, provides a much distorted reflection of the wishes
of the nation as a whole. Again, the three-year term
of members of the House
also ensures that its views will give a more contemporaneous reflection of the
will of the people than can
those of the Senate, one half of whose members
will have been elected several years earlier. (at p167)
8. The Commonwealth purports to find, in its interpretation of s. 57, a
recognition of this concept that the will of the House should
prevail. It
contends that if the Senate has not, within three months from the first
passing of a proposed law by the House, actively
affirmed the will of the
House that suffices to permit the House to set in train the steps leading to
double dissolution. Involved
in this interpretation is the proposition that
if the Senate does not pass a Bill originating in the House as soon as it has
had
an opportunity of doing so it will have failed to pass that Bill within
the meaning of s. 57. (at p168)
9. In my view the concept underlying the Commonwealth's submissions discloses
a serious misconception of the place of the Senate
as a legislative chamber;
from this misconception stems what I regard as the erroneous interpretation
which the Commonwealth puts
upon s. 57. (at p168)
10. The Senate, except as to money Bills, possesses legislative power in no
way inferior to the House. It has full power of initiation,
rejection and
amendment of Bills coming from the House and even in the case of money Bills
has the right freely to request amendments
or to reject outright. These
powers, unusual in a modern upper House, reflect the federal character of our
polity. Having accorded
to the smaller federating States Senate representation
equal to that of the more populous States and having armed the Senate with
far-reaching legislative powers the better to safeguard what were conceived to
be State interests, there necessarily arose the spectre
of legislative
deadlock, which had been a familiar phenomenon in colonial bicameral
legislatures. (at p168)
11. A solution was called for, one which would satisfy the strong national
aspirations for unity while not destroying the Senate's
role as an effective
guardian of States' rights. Section 57 was that solution. That a growing
sense of nationhood, in combination
with the discipline of the party system,
would speedily diminish the Senate's active assertion of this role was, at the
time of federation,
foreseen by very few; that senators may seldom have
assumed the role of guardians of the rights of their States cannot, however,
effect the interpretation of the Constitution. (at p168)
12. Few, if any, of the provisions of the Constitution occasioned so much
debate as did s. 57. It is clearly an extraordinary provision, a measure of
last resort, introducing the unusual concepts of dissolution of an upper
House
and of temporary abandonment of the bicameral system, and this for the purpose
of resolving disputes between the two plenipotent
chambers. It would be a
distortion of the history of the Constitutional Conventions to regard that
solution which s. 57 represents as involving no more than the simple and
categorical remedy now suggested on behalf of the Commonwealth, that the will
of the House should prevail and should do so without delay. It would indeed
have been a simple task of draftsmanship so to provide,
but s. 57 took no such
form. Had it done so it would have destroyed that nice compromise between the
rights of the States and those of the
nascent Australian nation which was the
aim of the federal compact and in the attainment of which the powers of the
Senate were regarded
as crucial. No less an authority than Barton J., with
his unique understanding of what were the problems with which the various
parts of the Constitution were intended to deal, has described the
Constitution as designing the Senate "to be a House of greater power than any
ordinary second chamber" and intended "to protect the States from
aggression"
(Osborne v. The Commonwealth [1911] HCA 19; (1911) 12 CLR 321, at p 353 ). (at p169)
13. An examination of the operation of s. 57 discloses that it in fact
involves no simple notion that the will of the House should prevail; instead
it contains a subtle solution
to deadlocks between the Senate and the popular
House. It relies, after the first occurrence of deadlock, upon providing
opportunity
for second, and perhaps wiser, thoughts and for negotiation and
compromise between the chambers, likely to be stimulated, no doubt,
by the
prospect that should this be unavailing each chamber may untimely face the
electorate following double dissolution. Should
legislative harmony
nevertheless elude the legislature, the majorities in each chamber proving
irreconcilable, double dissolution
may ensue and freshly elected chambers,
reflecting the current feeling in the electorate, will then address themselves
afresh to
the task of legislation, having, as a last resort, recourse to the
ultimate arbiter of a Joint Sitting should they, like their predecessors,
again disagree. A measure of the merit of this whole solution to the problem
of legislative deadlock lies in its history over the
past seventy-five years;
on only three occasions has disagreement persisted as far as double
dissolution and in two of the three
double dissolutions which have occurred,
those in 1914 and 1951, no recourse to a Joint Sitting has ultimately been
necessary, recourse
to the electorate having resulted in the return of
likeminded majorities in both chambers. The outcome of the first of these
double
dissolutions, that of 1914, is of interest in view of the contention
that s. 57 contemplates that the will of the House should prevail; the
elections returned majorities in each chamber of a similar complexion
to that
of the recently dissolved Senate and the need for a Joint Sitting disappeared
because, in effect, the will of the Senate,
as formerly constituted,
prevailed. (at p169)
14. Of course at a Joint Sitting the will of the House majority is likely to
prevail over that of an opposed Senate majority because
the members of the
House will necessarily outnumber the senators two to one - s. 24. This will
not necessarily be so if the Senate majority is substantial and the House
majority a slender one but with the advent of
proportional representation in
Senate elections any large majority in the Senate is perhaps unlikely. The
point to be stressed,
however, is that the will that is likely to prevail is
not the same will that was manifest in the passing twice over of the proposed
law by the old House before the double dissolution; it is, rather the will of
a newly elected House, reflecting the current feeling
of the electorate, and
not the will of the old House, which may, at the time of dissolution, have
been in office for up to two and
a half years - s. 57. (at p170)
15. Thus, to say that s. 57 contemplates that the will of the House will
prevail is only correct if understood as referring to the perhaps quite
differently
constituted House which emerges from the election following the
double dissolution, the results of which may in any event produce
like-minded
majorities in both chambers, making it unreal to talk of either chamber
prevailing over the other. Although in Cormack
v. Cope (1974) 131 CLR 435 I
referred to the will of the House prevailing, I now think it more accurate to
say that if anything
can be said to prevail it is the will of the electorate,
as reflected in the result of elections for both chambers. (at p170)
16. If s. 57 be approached unimpeded by misconception its interpretation
appears to me to present little difficulty; the natural meaning of the
phrase
"and if after an interval of three months" in this particular context involves
reckoning that interval from whichever of the
events described in the words
immediately preceding that phrase is applicable, events describing acts or
omissions of the Senate.
The meaning of "fails to pass", when applied to the
Senate, a high deliberative chamber entrusted with very extensive legislative
powers, presents no ambiguity once the erroneous notion that it is inherently
inferior to the House is discarded. To regard it as
under threat of double
dissolution whenever it seeks to apply to proposed laws coming before it from
the House the proper processes
of deliberative debate characteristic of
parliamentary government is not only to deny to senators the opportunity of
fulfilling the
responsibilities of their office but also to render illusory an
important feature of the federal compact to which the Commonwealth
and
Constitution owe their origin. (at p170)
17. Assume that in relation to any Bill coming before it the Senate may be
seen to have engaged in those customary processes of
debate, consideration
and, in appropriate cases, inquiry by select committee and the like which are
the familiar practices of parliamentary
democracy according to the Westminster
model and which find local expression in Senate Standing Orders, those "orders
with respect
to . . . the order and conduct of its business and proceedings"
which s. 50 of the Constitution has empowered the Senate to make; assume also
that examination does not reveal that in the particular instance there has
been such
an excessive indulgence in these processes, having regard to all the
circumstances, including the importance, complexity and, perhaps,
novelty of
the measure in question, as will itself indicate that the law-making function
has been abandoned in favour of mere dilatory
evasion of that function. In
such a case it cannot, in my view, be said that there has occurred any failure
to pass the measure
in question. The task of the Senate, in relation to Bills
coming to it from the House, cannot be degraded to that of according to
the
legislative products of the House immediate and automatic indorsement, under
threat of dissolution in the event of default. (at
p171)
18. A failure to pass will, then, not arise so long as the Senate is engaged
in the normal processes of deliberation upon proposed
laws; if advantage be
taken of those same processes, designed for the proper consideration by
legislators of the propriety and wisdom
of measures, for ulterior purposes,
for delaying, rather than considering and then passing or rejecting, a
proposed law, the Senate
will then, in terms of s. 57, have failed to pass
that proposed law. It is, I think, undesirable to resort to concepts of fault
or of lack of bona fides in such
a case, no doubt members of a legislature may
employ every parliamentary device open to them in order to thwart the passage
of legislation
which they oppose and this without being in any way at fault or
otherwise morally blameworthy. However, if by doing so the passage
of
legislation blameworthy. However, if by doing so the passage of legislation is
delayed there will have arisen a failure to pass
in terms of s. 57. (at p171)
19. 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; as Sir Robert Garran pointed out - (quoted in Parliamentary
Papers (General) Session 1957-1958, vol. V, pp.935-936) - the methods
that may
be adopted are various and many 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. But while problems may be conceived of in hypothetical
cases
none arise on the facts of the present case. (at p172)
20. It is perhaps because the present facts are so devoid of any indications
of departure from normal parliamentary processes that
the defendant has been
driven to espouse the extreme view that a failure to pass a Bill occurs
whenever it is not passed with the
greatest possible expedition and the least
possible consideration and debate. The present facts suggest no use of forms
and procedures
for the purpose of delay. Once the notion be rejected that a
responsible deliberative chamber in a bicameral system should be required
to
abdicate its responsibilities of debate and consideration of proposed laws at
the behest of its co-equal lower chamber, then the
Senate's conduct can be
seen to contain no element of calculated procrastination. Senate Standing
Orders require that each reading
of a Bill take place on separate days but the
Senate may resolve that so much of its Standing Orders be suspended as would
prevent
a Bill being passed through all its stages without delay. When the
present Bill was transmitted to the Senate on its last sitting
day in 1973,
the Senate resolved upon such a suspension of Standing Orders so that not only
was the Bill in fact read a first time
on that day but on that same day the
second reading of the Bill was moved and debated upon; when further debate was
adjourned on
this, the last day of the Senate's 1973 sittings, it was ordered
that its resumption be an order for the first sitting day in February
1974,
that is, for the next day upon which the Senate would, as then contemplated,
be in session. (at p172)
21. Nothing in these facts suggests resort to delaying tactics. It was
sought to supplement these facts with evidence of statements
by the leaders of
various political parties and by others, some in the Senate and some in the
House, and by the use too of the fact
that the Bill was ultimately defeated in
the Senate, to give to the events of 13th December a colour which they
otherwise lacked.
I regard such a course as impermissible; it is with the
actions of the Senate in its dealings with the Bill that the Court must be
concerned; I would doubt whether any expressions of intention by a few
individual members of Parliament, whatever may be the extent
of party
discipline and of unanimity of action and motives of various opposition
parties, can ever assist in determining the quality
of acts of a majority in a
legislature. The Court is asked to have regard to the existence of political
parties and to undertake
the task of assessing not only the extent to which
the statement of a leader of a party may be taken as expressing the intentions
of other members of that party but also how far those intentions remain
immutable. Even were the Court to do so, the statements
in the present case
are of such a nature as to throw no light upon whether conduct amounts to a
failure to pass, in the sense of
a calculated use of parliamentary procedures
with a view to delay so as to avoid the decisive step of passing or rejecting
a Bill.
The statements in question in fact suggest no such desire to avoid
the issue whether to pass or reject; they rather disclose an
emphatic
intention to reject the Bill. Since I would in any event have derived no
assistance from any of this material I find it
unnecessary to determine
whether in any circumstances it may properly be used. (at p173)
22. I conclude that there was here no failure in December 1973 to pass this
Bill within the terms of s. 57. The ultimate rejection of the Bill in April
1974 cannot, of course, avail the defendant, any more than would some failure
to pass
which occurred within less than three months before 8th April 1974,
when the House passed the Bill for the second time. (at p173)
23. However, I should not leave the question of the interpretation of s. 57
without some reference to other matters which arose in the course of argument.
I have already expressed my view of the purpose to
be served by the interval
of three months. A quite different purpose has been suggested as a feature of
the Commonwealth's construction
of s. 57, that of rendering more certain the
operation of the section, a time certain being provided so as to identify for
the House that
first moment of time after which, by passing the Bill again, it
might advance matters a step further along the road to double dissolution.
Associated with this contention was the submission that the interval could not
begin to run from the Senate's failure to pass since
that was a non-event,
incapable of providing any certain point of commencement. (at p173)
24. These twin contentions find their answer in the terms of s. 57 itself.
When dealing with the Senate's second consideration of the Bill and with the
action which the Governor-General may thereafter
take if deadlock persists,
the need for certainty is, of course, no less, yet no interval is there
provided for; the draftsman has
seen no need to attain certainty by providing
for an interval of time running from the second passing by the House. On the
contrary
the section assumes that it will be possible for the Governor-General
to determine with sufficient certainty if, and when, the Senate
has, on this
second occasion, failed to pass the Bill. This omission would be inexplicable
were the interpretation of s. 57 for which the Commonwealth contends correct;
the contrary interpretation of s. 57, on the other hand, provides a reason for
the omission of any second interval of three months; if the interval is to
provide scope
for negotiation and possible reconciliation of views and if
those processes have already failed after the first unfavourable response
by
the Senate, it is not surprising that no second interval is interposed before
proceeding to double dissolution. In any event it
is wrong to regard a failure
to pass as a non-event, from which a time certain cannot be calculated; the
failure will occur at some
point in time, although its precise ascertainment
may not always be easy. I have already indicated the kind of circumstances
which
can give rise to such a failure, upon the occurrence of which the period
of three months will begin to run. (at p174)
25. For the Commonwealth it was also contended that the interval of three
months was included so to require the House to demonstrate
a degree of
persistence of will, enduring for at least three months after its first
passing of the Bill. But such a demonstration
of a firm resolve on the part
of the House will on any construction of the section necessarily become
manifest through the requirement
that there be a second passing by the House
after the Senate's original unfavourable response; the Commonwealth's
construction thus
adds nothing to the degree of persistence which must in any
event be demonstrated. (at p174)
26. Curious consequences would flow were the Commonwealth's submissions to be
accepted; the extraordinary remedy of double dissolution,
intended for the
breaking of deadlocks between the two chambers, may become available to the
majority in the House, the Government,
although there be no real disagreement
between these chambers. This arises in part because neither chamber is by any
means continuously
in session nor are the two chambers necessarily in session
simultaneously; a total of three months may thus pass, quite fortuitously,
between the passage of a Bill through the House and the completion of those
deliberative processes to which it is to be subjected
in the Senate; if those
processes do not answer the description of a passage through all stages as
speedily as possible the House
could thereupon treat the Senate as having
failed to pass the measure and might immediately pass the measure for a second
time and
transmit it once more to the Senate, although the latter would still
be dealing with the Bill as originally transmitted to it from
the House.
Unless the Senate then passed this second Bill through all stages as speedily
as possible the stage would be set for the
Government to seek a double
dissolution. (at p174)
27. Although this might occur without there being any question of the
amendment of the Bill in the Senate, its likelihood is no
doubt increased if
the Senate considers that amendments are called for; in such a case the three
months may well have expired by
the time that the Senate has considered the
Bill, has made amendments to it, has returned it to the House seeking
concurrence therewith
and the House has had an opportunity of considering
those amendments and has determined to disagree with them. Standing Orders
contemplate
that in such a situation the Bill then returns to the Senate which
may, instead of insisting upon its own original amendments, make
other further
amendments or propose to the House the making of alternative amendments -
Senate Standing Orders 236 and 237. Such
a course may lead to a resolution of
the disagreement between the chambers; but if the House is to be free, as soon
as it has disagreed
with the Senate's first proposed amendments, to again pass
the Bill in its original form and transmit it to the Senate for immediate
passage through all stages under threat of double dissolution the possibility
of a compromise solution, with resultant termination
of disagreement,
disappears. Instead either the Senate will have to forego all its amendments
and simply indorse the legislation
which it considers requires amendment or
else disagreement will be allowed, perhaps unnecessarily, to persist, so that,
before deadlock
has in any real sense arisen, s. 57 will operate, not as an
extraordinary provision designed to overcome a legislative impasse but as a
potent weapon in the hands of
a House majority anxious to secure dissolution
of the Senate. (at p175)
28. Moreover the view that failure to pass occurs whenever the Senate does
not pass a Bill with all possible speed will seriously
prejudice the ability
of the Senate, in appropriate cases, to obtain the assistance of a report of a
select committee upon a Bill
coming to it from the House. In this and other
instances which readily come to mind this suggested construction of s. 57,
particularly if coupled with the notion that the interval of three months runs
from the first passing by the House, would result
in the Senate being treated
as having failed to pass a measure which is in fact still receiving its active
consideration. (at p175)
29. These possible consequences of the adoption of such a construction of s.
57 would very seriously prejudice the effective functioning of the Senate as a
second chamber and would be, to a not inconsiderable
degree, destructive of
the function of the Senate as an integral part of the bicameral system created
by the Constitution. (at p175)
30. It affords, of course, no answer to point to the fact that a double
dissolution brings in its train consequences no more dire
than that the
elected members of both chambers must then go to the country at a general
election. The Constitution has established the Senate as a chamber possessing
a continuity of existence (s. 13); not subject, as is the House, to periodic
dissolution; with members who are elected for twice the term of members of the
House (s. 7) so that one half of its members at any one time represent the
results of an election held three years before that at which the other
half
were elected. Whatever may be the merits or demerits of a chamber so
constructed as to be less responsive to short term fluctuations
of electoral
opinion than will be the House, it forms a central feature of our legislative
model, only to be departed from when that
model ceases effectively to function
as demonstrated by an instance of deadlock affecting the two chambers. To
construe s. 57 in such a way that this model may be departed from at the will
of a majority in the House and in the absence of any true and irreconcilable
deadlock, the constitutional model not in fact having ceased to function,
effects an important constitutional change and this without
resort to
constitutional methods. (at p176)
31. In conclusion, two points of detail; the Commonwealth attached some
significance to the fact that the Senate resolved to suspend
Standing Orders
in the case of the present Bill; this, it was said, acknowledged its urgency;
such a suspension of Standing Orders
may only occur "in cases of urgent
necessity" - Order 448; the subsequent adjournment of the debate was
inconsistent with any need
for urgency and disclosed a clear intention
improperly to delay passage of the Bill. Although there is doubt as to the
precise extent
to which the passing of such a resolution suspends Standing
Orders, as to which Orders are suspended and which remain in force -
see
Odgers Australian Senate Practice, 4th ed. (1972), p. 295 - it is clear that
its passage does not inhibit the examination and
discussion of the terms of a
Bill at such length as senators may think appropriate - ruling of President
Givens, Hansard, 13th November
1918, pp. 7727-7728 (1917-1919). It follows
that there was nothing inconsistent in the Senate's conduct when, on the
afternoon of
the last day of sitting in 1973, it adjourned the second reading
debate until the first day of its sittings in 1974. (at p176)
32. Then, as to the meaning of "fails to pass", the Court was referred to
authority, none of which I have found to be in point.
It requires no authority
to demonstrate that the meaning of "to fail" must depend upon context. In the
present case it is the temporal
aspect of the verb that is in question and
this is helpfully discussed by Asprey J.A. in Reg. v. Skurray (1967) 86 WN (Pt
1) (NSW) 1, at pp 7-8 . His Honour there referred to different meanings it
might bear so far as concerns the stage at which the omission to
perform the
act can be said to be complete, so that failure to perform is established; he
emphasized that its meaning "must be related
to the type of act to be
performed in all the circumstances of the particular case ... the word 'fails'
itself bears the connotation
of a lapse of time to enable compliance with the
obligation of performance ... some period of time which will vary with the
nature
of the act to be performed and the circumstances in which it is to be
performed". I regard this approach as directly applicable to
the present case;
here the character of the act to be performed, the consideration of proposed
laws for the government of this country,
is one calling for adequate time for
deliberation, something which the construction urged on behalf of the
Commonwealth would substantially
deny to the Senate. (at p177)
33. These further considerations, which I have shortly noticed, have served
to confirm me in my view that the construction of s. 57 contended for by the
Commonwealth is erroneous. (at p177)
34. I turn now to the second aspect of this case, that of justiciability. It
is convenient so to describe it although in argument
it was treated as
consisting of two distinct arguments, the first concerned with whether the
requirements of s. 57 were mandatory or merely directory and only the second
with justiciability itself. (at p177)
35. So as to place these arguments in their proper perspective, an
appreciation of the rather special character of the measure entitled
Petroleum
and Minerals Authority Act 1973 is necessary. This measure was not passed by
both Houses of Parliament and is therefore
no ordinary Act of Parliament but,
having
received Royal assent, will have become one if the deeming provision
contained in the concluding
words of s. 57 are applicable to
it. That
provision applies when what is there called "the proposed law" has been
affirmed by an
absolute majority at a Joint Sitting
of both chambers. There
has here been such an affirmation, so that if the present measure satisfies
the description "the proposed
law" it will have become an Act of Parliament.
The phrase "the proposed law" recurs throughout s. 57
and its meaning changes
and
acquires added content as the section unfolds its procedural pattern. The
measure perforce begins life
as "any proposed law" which
may be passed by the
House; if it then undergoes hostile treatment at the hands of the Senate and,
after
the much discussed interval
of three months has elapsed, is again passed
by the House it ceases to be "any proposed law" and becomes
"the proposed
law". If
the Senate remains hostile to it upon its second appearance in that
chamber a double dissolution may follow
and "the proposed law"
may then once
again appear before each chamber and, if necessary, before a Joint Sitting.
At each stage of
this process "the proposed
law" acquires an additional
quality, that of having been subjected to whatever process that stage has
involved. What may ultimately
be deemed to have been duly passed by both
chambers is "the proposed law" but only when it has acquired
the qualities of
having undergone
each of the stages called for by s. 57; only then may it be
"taken to have been duly passed by
both Houses of Parliament". (at p178)
36. The present measure did not, as I interpret s. 57, pass through all those
stages; it was never subject to the elapsing of the
prescribed interval of
three months. Accordingly it never became "the proposed law", that which
alone may ever be deemed to have
been passed by both chambers. (at p178)
37. The Commonwealth sought to rebut this conclusion, fatal to the validity
of the measure, by two principal contentions, the first
of which was that
non-compliance with the requirement of an interval of three months does not
result in invalidity because that requirement
is only directory and not
mandatory. It was said that unless a directory construction were given to it
dire consequences would attend
any instance in which, s. 57 having been
applied to a particular Bill, it later transpired that some requirement of the
section had
not been observed; not only would invalidity then affect both the
double dissolution and the subsequent election but all laws passed
by the
newly elected Parliament would also be void. Such a submission recalls the
case of Simpson v. Attorney-General (N.Z.) (1955)
NZLR 271 , in which
constitutional provisions relating to dissolution were held to be directory
only, the far-reaching consequences
of a contrary view, treating those
provisions as mandatory, assisting the Court in arriving at its conclusion -
and see Clayton v.
Heffron [1960] HCA 92; (1960) 105 CLR 214, at p 247 . In the case of s.
57 no such consequences would, in my view, ensue; once
the Governor-General
has
in fact dissolved both chambers, whether or not he is justified in doing
so in terms of s. 57, the existing
Parliament will have
been brought
effectively to an end and the new Parliament which results from the issue of
writs and the holding
of an election following
such dissolution will be quite
unaffected by whatever may or may not have preceded that dissolution. (at
p178)
38. Other considerations were also relied upon in support of the view that a
directory, rather than a mandatory, construction was
appropriate. I have
found it unnecessary, and undesirable, finally to determine which construction
should be given to the relevant
part of s.57; unnecessary because in the
particular circumstances of this case even the adoption of a directory
construction will
not secure the validity of the present measure; undesirable
because instances readily occur in which, in different circumstances,
a
directory construction of s. 57 would preserve validity and might, viewed in
the light of those circumstances, appear appropriate.
(at p179)
39. A directory construction will not assist in securing validity unless,
despite the non-compliance which is the occasion for invoking
that
construction, there may nevertheless be seen to be substantial compliance with
the general object at which the statutory provision
aims. Sometimes the
stipulation which has not been complied with is, in its context, so relatively
unimportant to the attainment
of that general object that, although there has
been total non-compliance, a directory construction may be appropriate. In
such cases
it may not matter that the non-compliance is complete, not partial.
Indeed the stipulation in question may be of a kind which is
incapable of
partial compliance; to give to such a stipulation a directory interpretation
recognizes that it may be wholly disregarded
without prejudice to validity
because of its relative unimportance in the attainment of the general
statutory object and also, perhaps,
because of the far-reaching and
undesirable consequences of treating its non-observance as invalidatory. (at
p179)
40. Where, on the contrary, a stipulation may be seen to be of importance in
attaining the general object of the statute its total
non-observance cannot be
sought to be excused, and its intended effect circumvented, by the adoption of
a directory construction.
A directory construction may none the less be given
to such a stipulation if it is of a kind capable of degrees of non-compliance
and if some degree of non-compliance can be seen as not necessarily
prejudicing the substantial carrying into effect of the general
object. If in
such a case a directory construction be adopted, the extent of non-compliance
in the particular case must then be
examined to determine whether what has in
fact occurred nevertheless gives effect to the general object of the statute.
(at p179)
41. The requirement of s. 57 calling for an interval of three months clearly
cannot be treated as relatively unimportant; it plays
an important part in the
constitutional compromise to which s. 57 gives effect. However, it is a
requirement which is capable of
degrees of non-compliance and if it were to be
given a directory construction it would then be necessary to examine the
particular
facts so as to decide whether there had been substantial compliance
with the general object of the statutory provision. In the present
case the
result of such an examination would, I think, be a foregone conclusion, no
question of substantial compliance could arise;
instead of an interval of
three months there was an interval of only a few days and the purpose which
the interval of time stipulated
for is designed to serve in the general scheme
of s. 57 has been frustrated. (at p180)
42. It is for this reason that I have regarded reliance upon a directory
construction as of no avail to validity and have therefore
found it
unnecessary to seek to apply to s. 57 those rather indefinite criteria which
have been said to indicate whether or not such
a construction may
appropriately be adopted in a particular case. The propositions which I have
stated concerning a directory construction
and its consequences find support
in the following authorities - Howard v. Bodington (1877) 2 PD 203, at pp
210-211 , Montreal Street
Railway Co. v. Normandin (1917) AC 170, at p 175 ,
Clayton v. Heffron (1960) 105 CLR, at pp 262 et seq, p 266 , Cullimore v. Lyme
Regis Corporation (1962) 1 QB 718 and Plastic Enterprises Pty. Ltd. v.
Southern Cross Assurance Co. Ltd. (1968) Qd R 401 . Instances
of stipulations
given a directory construction preserving validity notwithstanding total
non-compliance occur among the above cases
as well as in Chanter v. Blackwood
[1904] HCA 2; (1903) 1 CLR 39 and Pope v. Clarke (1953) 1 WLR 1060 . An instance of a
directory
construction
where there was partial compliance
and the
circumstances were examined to determine whether it was sufficiently
substantial
is provided
by Woodward v. Sarsons (1875)
LR 10 CP 733 . An
example of a modern case which held that, even if a stipulation were
to be
given
a directory construction, invalidity
would nevertheless ensue because of
want of substantial compliance with the general
object of
the statue is
furnished by Cullimore
v. Lyme Regis Corporation (1962) 1 QB 718 and see
generally Scurr v. Brisbane City
Council
[1973] HCA 39; (1973) 133 CLR 242 . (at p180)
43. There remains the general question of justiciability. I have had the
advantage of reading the reasons for judgment of the Chief
Justice and of my
brother Gibbs. Leaving aside the presently irrelevant question of
intervention by the Court before Royal assent,
I respectfully agree with all
that is said in each of those judgments on this topic. (at p180)
44. I would allow the demurrer of the State of Victoria and would further
declare that the Petroleum and Minerals Authority Act
1973 is not a valid law
of the Commonwealth. (at p181)
MASON J. In these cases the initial question, presented by the last
argument advanced on behalf of the defendants, is whether it
is for the Court
to determine that there has been any failure to comply with the provisions of
s. 57 of the Constitution. The Solicitor-General for the Commonwealth
submitted that the issue was not justiciable because the courts will never
inquire into
the law-making processes of Parliament and the grant of the Royal
assent to a Bill puts beyond the reach of this Court any judicial
examination
of the internal passage of the Bill through the legislature. I do not doubt
that this submission correctly states the
relationship which exists between
the courts and each House of the Parliament in relation to the internal
procedures of Parliament
where a Bill originates in the House of
Representatives and is passed by the Senate. Then it is for each House to
determine whether,
according to its procedures, the measure has been passed;
and the assent may be taken as indicating that the Bill has been passed
by
each House. (at p181)
2. But it is beyond question that the courts have jurisdiction to pronounce
upon the validity of a law enacted in the apparent exercise
of an
extraordinary law-making power conferred upon a Parliament, when it is
conditioned upon the existence of certain facts or events,
and that the Court
may in the exercise of that jurisdiction declare an Act invalid on the ground
that the preliminary conditions
have not been satisfied, even if the
preliminary conditions relate to proceedings in Parliament. That this is not
a new or novel
assertion of jurisdiction by the Court is evident from the
observations of Dixon C.J., McTiernan, Taylor and Windeyer JJ. in Clayton
v.
Heffron [1960] HCA 92; (1960) 105 CLR 214, at p 235 :
"Of course the framers of a constitution may make theThis statement accords with what was said by the Privy Council in Bribery Commissioner v. Ranasinghe [1964] UKPC 1; (1965) AC 172, at pp 197-198 and Rediffusion (Hong Kong) Ltd. v. Attorney-General (Hong Kong) (1970) AC 1136, at pp 1156-1157 . What is more, it is an approach appropriate to the unique position occupied by this Court as the guardian of the Constitution, charged as it is with the responsibility of determining whether legislative powers conferred by the Constitution are validly exercised in accordance with its requirements. (at p182)
validity of a law depend upon any fact, event or consideration
they may choose, and if one is chosen which consists
in a proceeding within Parliament the courts must take it
under their cognizance in order to determine whether the
supposed law is a valid law."
3. It is apparent, as I said in Cormack v. Cope [1974] HCA 28; (1974) 131 CLR 432, at p 474
, that "s. 57 has entrusted to a joint sitting of both Houses an extraordinary
law-making power". That the events which the section specifies
as preliminary
to a double dissolution are conditions compliance with which is essential to a
valid exercise of the power thereby
conferred was the view expressed by a
majority of this Court in Cormack v. Cope. Moreover, in the view of a
majority, the relief
then sought should be refused because this Court would
have jurisdiction to declare a law invalid after it had received the Royal
Assent if it appeared that the preliminary conditions expressed in s. 57 had
not been satisfied. (at p182)
4. The ground on which the case was decided is, in my opinion, correct and
should now be followed by this Court. However, having
regard to the more
comprehensive argument presented in this case, it is desirable to say
something more in relation to two aspects
of the defendants' case. The first
is the suggestion that the reference in the section to the events preliminary
to a double dissolution
are not conditions but are provisions which are
directory only and, therefore, do not touch the validity of a measure enacted
at
a Joint Sitting. Where a statute requires an act to be done within a
particular time or in a prescribed manner there is the problem
whether failure
to comply with the statutory instruction results in the invalidity of the
subsequent act. Whether non-compliance
has this effect hinges on the true
construction of the statute. (at p182)
5. Here, it will be observed, the section does not deal with the preliminary
events in terms of instruction or direction - they
are stated as conditions.
The inescapable sense of the words is that if certain events take place, if
certain facts come into existence,
then, and then only, does the occasion for
the exercise of the power conferred arise. (at p182)
6. Any other view of constitutional provisions delimiting with some
particularity the occasion for the exercise of an extraordinary
law-making
power arising out of disagreement between the House and the Senate is, I
think, completely unacceptable. What the Constitution says must be heeded,
not disregarded. (at p182)
7. Of course, as Clayton v. Heffron [1960] HCA 92; (1960) 105 CLR 214 demonstrates, a
provision framed as a condition may be held
to be directory.
However, such a
result is an uncommon
event and when it eventuates it is attributable to
powerful considerations
in the context
which subdue the ordinary sense of the
words. (at p183)
8. The decision in Clayton v. Heffron is not inconsistent with what I have
said. There the provision requiring a free conference
of managers of the
Legislative Council and the Legislative Assembly (which was not satisfied
because the Council refused to participate
in a conference of managers) was
held not to be imperative. The ground for this conclusion taken by the
majority of the Court was
that a meeting of managers depended on the
co-operation of the Houses and that to regard the meeting as essential to
validity would
be to open the way to the Council to frustrate the statutory
procedure for the resolution of a disagreement between the Houses by
refusing
its co-operation. There was no suggestion that the other requirements
prescribed by s. 5B(1) of the Constitution Act, 1902 (N.S.W.) were not
mandatory. Indeed the circumstance that the Court decided that the Council
had rejected the proposed
law indicates that it was of the view that this was
made a condition going to validity. (at p183)
9. The other point made by the defendants in connexion with the issue of
justiciability was that it is for the Governor-General
to determine
conclusively whether the preliminary requirements of s. 57 have been satisfied
and this he does when he convenes a Joint
Sitting by proclamation. No support
for this view is to be discerned in the language of the section. It
presupposes the occurrence
of specified events as facts; it makes no reference
to the opinion of the Governor-General, a traditional formula which could and
should have been invoked had it been intended to place his decision beyond the
reach of the Court in a suit for a declaration of
invalidity. (at p183)
10. It is no easy matter to define the role of the Governor-General under s.
57. Does His Excellency make a personal judgment or
does he, in accordance
with English constitutional convention, act on the advice tendered to him by
the Government? Although the
problem was left unresolved by the argument, I
am persuaded that the section does not confer on the Governor-General a power
to decide
conclusively whether the conditions have been satisfied. (at p183)
11. It does not follow, despite the suggestion to the contrary made by the
Solicitor-General, that the Court could intervene to
declare invalid a
dissolution of the Parliament and an ensuing election. The jurisdiction of the
Court is engaged because there is
at issue the validity of a statute enacted
by the Parliament, a question which it will decide in a suit for a declaration
as to validity.
Intervention by the Court at any other stage of the
parliamentary process involves different considerations of a complex
character,
jurisdictional and discretionary, some of which were discussed in
Clayton v. Heffron [1960] HCA 92; (1960) 105 CLR 214 , Cormack
v. Cope [1974] HCA 28; (1974)
131 CLR 432
and the decisions there referred to. Even if it be thought that a logical
consequence
of granting relief to
the plaintiffs
now would be to expose a
prospective dissolution of Parliament under s. 57 to judicial scrutiny,
this
does not demonstrate
that relief
cannot be granted in the present cases. (at
p184)
12. The observations in Osborne v. The Commonwealth [1911] HCA 19; (1911) 12 CLR 321, at pp
336, 351-352, 355 and Buchanan v.
The Commonwealth
[1913] HCA 29; (1913) 16 CLR 315, at p
329 , to the effect that the provisions of s. 53 of the Constitution are
merely directory have no application to s. 57. The functions of the two
sections are entirely dissimilar and leave no scope for an analogous reading
of s. 57 deriving solely from the reference in each section to the words
"proposed laws". (at p184)
13. Having reached the conclusion then that the preliminary events referred
to in s. 57 are essential conditions going to the validity of a legislative
measure passed at a Joint Sitting and that the issue of compliance
with the
conditions creates a justiciable issue which this Court can entertain in a
suit for a declaration of invalidity I come to
the principal point for
decision. What do the words "fails to pass" in the first and second
paragraphs of the section convey? It
is not an unfamiliar problem, for
experience has shown that whenever statutory provision is made for certain
consequences to follow
in the event that a person fails to perform a specified
act, there is difficulty in ascertaining what constitutes a failure to
perform.
The expression may signify a mere omission to perform, regardless of
any fault or delay on the part of the actor, or it may mean
an omission to
perform which is attributable to fault or delay on his part - see Ingram v.
Ingram (1938) 38 SR (NSW) 407, at p 410
. Neither in point of law nor of
English usage is there a general preference for one sense over the other.
Always it is the context
which determines the sense in which the words are
used. (at p184)
14. Where there is a duty to perform an act within a prescribed time, a
failure to perform the act may be more readily related to
a mere omission to
perform within that time, regardless of any fault on the part of the body in
whom the duty is reposed. But where
no such duty is imposed and there is no
prescription of the time within which the act is to be performed it is
difficult, if not
impossible, to conclude that there can be a failure of
performance before a reasonable time has elapsed unless the omission to
perform
is attributable to fault of some kind. This, so it seems to me, is
the formidable obstacle which confronts the Commonwealth and
it is not one
which to my mind the Solicitor-General has succeeded in surmounting or
outflanking, despite the ingenuity of the arguments
which he has advanced. (at
p185)
15. It cannot be suggested that the Senate has a duty to pass a Bill
transmitted to it by the House of Representatives. Section 53 expressly
provides that the Senate has equal power with the House in respect of all
proposed laws, except as provided in that section.
The exceptions relate only
to proposed laws imposing taxation, or appropriating revenue or moneys for the
ordinary annual services
of the Government and to amendments increasing any
proposed charge or burden on the people. As such the exceptions have no
relevance
to this case, for the Petroleum and Minerals Authority Bill ("the
Bill") was not a proposed law of the kind described. (at p185)
16. In the exercise of its powers under s. 53 the Senate deliberates upon
proposed laws initiated by the House; its power to pass or reject them is
unconfined by s. 53 or any other provision in the Constitution; and its power
to otherwise deal with them is also unconfined save in so far as contrary
provision is made by the exceptions which,
as I have said, have no application
in this case. (at p185)
17. There is no explicit prescription in the Constitution of a time within
which the Senate is to pass or reject a measure transmitted to it by the
House; nor does the Constitution contain a provision prescribing a time for
deliberation on the expiration of which the Senate is deemed to have rejected
or failed
to pass a Bill: cf. Constitution Act, 1902 (N.S.W.), ss. 5A(2),
5B(4); Constitution Amendment Act 1958 (Vict.), s. 56. Although we do not
know the reasons which induced the authors of the Constitution to omit a
provision of this kind, its absence provides no foundation for any implication
or inference favourable to the Commonwealth
in this case. The high importance
of the Senate's deliberation upon Bills transmitted to it by the House, its
enjoyment of equal
power with the House in respect of all proposed laws except
in the respects mentioned are quite at odds with the notion that the
Senate is
under any duty to pass a Bill as soon as it is transmitted by the House or as
soon as it comes before the Senate for deliberation
or when it first has the
opportunity to pass a Bill, whatever that expression may mean. The absence of
any prescription of the time
to be taken by the Senate in the consideration of
a Bill points not to the conclusion that there is a failure to pass if the
measure
is not adopted immediately, but to the conclusion that the Senate was,
in conformity with its position in the Parliament and with
its
responsibilities, allowed reasonable time for deliberation and that after the
expiration of that time there is a failure to pass
if the measure has not been
adopted. This interpretation sensibly allows to the Senate a reasonable
period for consideration; it
recognizes that what is adequate or reasonable
depends upon the circumstances of the particular case, including no doubt the
sittings
of Parliament and the importance and complexity of the measure which
has been transmitted. (at p186)
18. The correctness of this conclusion is reinforced, so it seems to me, by
considerations deriving from the language and arrangement
of s. 57 itself. On
no less than three occasions the section in referring to the various modes in
which the Senate may deal with a Bill originating
in the House, upon which the
convening of a Joint Sitting depends, expresses them in relation to a proposed
law as "the Senate rejects
or fails to pass it, or passes it with amendments
to which the House of Representatives will not agree ..." If "fails to pass"
means
"did not pass", and no more, then the reference to rejection is
redundant and the reference to passing with amendments no less so.
(at p186)
19. The suggestion that the references to rejection and passing with
amendments, though inessential, have been included for more
abundant caution
lacks plausibility. The sequence of the three expressions which refer to the
Senate's handling of a Bill indicates
that the authors of the Constitution had
in mind three different forms of response by the Senate - (1) a positive
rejection, (2) a failure to pass not amounting to
a positive rejection, and
(3) passing with amendments. The second response specified was intended to
comprehend action or inaction
with respect to a Bill which does not amount to
a positive rejection or an implied rejection as is involved in passing a Bill
with
amendments. (at p186)
20. This is not to say that in relation to a particular Bill there cannot be
a failure to pass and a positive rejection, or for
that matter, a failure to
pass and a passing with amendments. There may come a time in the course of a
Bill in the Senate when it
is correct to conclude that the Senate has taken
more than a reasonable time in its consideration of the Bill in which event a
failure
to pass will have occurred. Yet, as the occurrence of a failure to
pass does not of itself terminate the Senate's power to deliberate
further
upon the Bill, although it does satisfy the requirement in s. 57, the Senate
may still proceed to rejection or to pass with amendments. (at p187)
21. The next question is whether the phrase "after an interval of three
months" takes as its point of commencement - (1) the passing
of the Bill by
the House; (2) its rejection, failure to pass or its passage with amendments
by the Senate; or (3) the time when
the House refuses to agree to the
amendments. The arrangement and the natural sense of the provisions indicate
to my mind that the
point of commencement of the stipulated interval is the
second of the three alternatives to which I have referred. The third
alternative
may be dismissed because it governs one only of the three events
and that is an event which is not in question here. We are left
with a
condition which presupposes two events. The initiation of the Bill by the
House and the subsequent action or inaction in relation
to that Bill by the
Senate. It is appropriate to relate the commencement of the interval to what
occurs in the Senate because that
is the immediate antecedent to which the
clause naturally relates and it is the later in time of the two events
previously presupposed.
I agree with Stephen J. in Cormack v. Cope, when
referring to the section, he said (1974) 131 CLR, at p 471 :
"It serves an obviously useful purpose; avoidance of deadlock
is what the section is concerned with and the interval
of three months, in providing a time for attempted reconciliation
of differences, must begin after the deadlock occurs.
To regard the period as beginning with the first passing of
a proposed law by the lower House serves no such purpose
and, indeed, would appear to serve no useful purpose at all."(at p187)
22. I agree that the construction of s. 57 which I favour may lead to the
existence of difficulty in determining in a given case whether there has been
a failure by the Senate
to pass a proposed law. However, this possibility
provides no justification for distorting the meaning of the words ascertained
from
the context in which they appear and assigning to them an interpretation
which is not in conformity with the status and responsibilities
of the Senate
under the Constitution. It has long been recognized that there are
difficulties in the operation of the section, not the least of them being the
problem
of ascertaining when the Senate has failed to pass a proposed law and
the accepted view has been that there cannot be such a failure
unless some
breach of duty, fault or avoidance of a decision is shown. This was the
opinion expressed by the Solicitor-General in
1951 on the occasion of the
second double dissolution and it reflected a view which had been taken on an
earlier occasion. I refer
to it, not because it conforms precisely to what I
have said, but so as to make the point that the problems inherent in the
concept
of failure to pass are of very long standing and that hitherto they
have not been regarded as justifying the conclusion that "fails
to pass" means
"did not pass". (at p188)
23. The history of the Bill and the transactions which took place in the
Senate are set out in detail elsewhere. In the light of
the interpretation
which I have given to s. 57 it is impossible to conclude that there was a
rejection or a failure to pass the Bill on 13th December 1973, the last day of
the
sittings. The suggestion that there was a rejection on that day may be put
aside without further mention. Little more need be said
about the submission
that there was a failure to pass because the Bill was transmitted by the House
to the Senate on that day when
the Senate suspended its Standing Orders to
enable the Bill to be read a first time and then adjourned the debate on the
motion for
a second reading until later in the day. Upon the resumption it
was ordered that the debate be adjourned and that the resumption
of the debate
be an order of the day for the first sitting day in February 1974. There is in
all this no suggestion of fault or delay
on the part of the Senate which would
warrant a finding that there was a failure to pass. The events indicate that
the Senate intended
to set about its deliberations upon the Bill with all due
expedition. (at p188)
24. The speeches and statements made by members of the Senate upon which the
defendants sought to rely in order to show that the
Opposition intended to
defeat the Bill do not constitute admissible evidence. There are two reasons
why this is so. First, the
fact, if it be a fact, that the Opposition
senators having control of the Senate, intended to defeat the Bill, does not
demonstrate
that there was a failure to pass on 13th December. The existence
of an intention to defeat the Bill does not establish that there
was any fault
or unreasonable delay on 13th December. Secondly, the section directs itself
to the conduct of the Senate as a body,
not to the actions or statements of
individual senators. It would be an endless, and in my opinion a profitless,
excursion for the
Court to inquire into the actions, statements and intentions
of individual senators and we are not justified in assuming that what
was said
by a party leader in the Senate necessarily reflects the views of all members
of his party. In my opinion the practical
objections expressed by Latham C.J.
in South Australia v. The Commonwealth [1942] HCA 14; (1942) 65 CLR 373, at p 410 to the
consideration
by the
courts of speeches in Parliament in order to elucidate
the interpretation
of statutes apply to the reception of the material
which
the defendants wish to put forward in these cases. (at p189)
25. In the result I would allow the demurrer filed by the State of Victoria
in its action and I would declare that the Petroleum
and Minerals Authority
Act is not a valid law of the Commonwealth. (at p189)
JACOBS J. The matter which has been principally argued has been a demurrer
by Victoria to the Commonwealth's defence. New South
Wales, South Australia
and Western Australia did not demur but, with Victoria also, applied by their
respective summonses to strike
out the defences to their respective statements
of claim or part of those defences. On each summons the substantial questions
which
arose, namely, whether a subparagraph, numbered 6(c) in the defence to
Victoria's action, should be struck out on the ground that
the allegations
contained therein were unnecessary or might tend to prejudice, embarrass or
delay the fair trial of the action and
whether the whole defence ought to be
struck out on the ground that it did not disclose a reasonable answer to the
plaintiff's claim,
were reserved for the consideration of a Full Court. (at
p189)
2. It is necessary to consider the pleadings with some particularity. I shall
take that of Victoria. By par. 3 of the statement
of claim it is alleged that
the House of Representatives passed the Bill on 12th December 1973; by par. 4
that on 13th December 1973
the Bill was sent to the Senate; by par. 6 that on
13th December 1973 the Senate passed a motion that so much of the Standing
Orders
be suspended as would prevent the Bill being passed through all its
stages without delay; by par. 7 that on the same day the Bill
was read a first
time; by par. 8 that on the same day it was moved in the Senate that the Bill
be read a second time; by par. 9 that
on the same day the Senate passed a
motion that the debate on that motion be adjourned and that thereupon it was
ordered that the
resumption of the debate be an Order of the Day for a later
hour of the day; by par. 10 that on the same day upon the resumption
of the
debate upon the motion for second reading, it was resolved that the debate be
adjourned and that the resumption of the debate
be an Order of the Day for the
first sitting day in February 1974; and by par. 11 that on the same day the
Senate resolved that it,
at its rising, should adjourn till a day and hour to
be fixed by the President, or, in certain events, by the Chairman of
Committees,
and that the Senate thereupon resolved to adjourn and that the
President or the Chairman of Committees did not fix a date for the
Senate to
resume before 28th February 1974. (at p189)
3. Then by par. 12 it is alleged that on 14th February 1974 Parliament was
prorogued until 28th February 1974; by par. 14 that on
7th March 1974 the
House of Representatives requested the Senate to resume consideration of the
Bill; by par. 15 that on 19th March
debate on the motion that the Bill be read
a second time was resumed in the Senate and by par. 16 that on 2nd April 1974
the Senate
negatived that motion. (at p190)
4. There then follow a number of paragraphs which relate the passing of the
Bill a second time by the House of Representatives on
8th April 1974, the
sending of the Bill to the Senate on the same day, and the passing on 10th
April by the Senate of a motion that
the Bill be deferred for six months.
Further paragraphs relate the double dissolution, the passing of the Bill
again by the House
of Representatives on 10th July 1974, the calling of a
joint sitting, the resolution of the joint sitting on 7th August 1974 to
affirm
the Bill and the Royal assent on 8th August 1974. It is then alleged
that the joint sitting had no power to vote on the Bill, that
the assent was
of no effect and that the Petroleum and Minerals Authority Act 1973 is not a
valid law of the Commonwealth of Australia.
A declaration to that effect is
sought. (at p190)
5. The defence admits most of the allegations in the statement of claim but
seeks to supplement the allegations by much detail of
the course of events in
the Senate, particularly on 13th December 1973. This detail appears
particularly in the allegations in sub-par.
6(c) of the defence. This
subparagraph was in further answer to par. 10 of the statement of claim, the
paragraph which alleged the
adjournment on 13th December 1973 of the motion in
the Senate for the second reading of the Bill until the first sitting day in
February
1974. Subparagraph 6(c) is a long subparagraph which relates the
party political division which occurred in the Senate in respect
of the Bill
and seeks to show, if that be necessary, that on the basis of that division
and the statements of opinion and intention
of members of the Opposition in
the Senate, who were in a majority, the debate on the second reading was
adjourned to February 1974
in circumstances where the majority of members of
the Senate had no intention of passing the Bill and that therefore on the day
of
adjournment the Senate failed to pass the Bill. These statements and
opinions of members of the Opposition were alleged to have
been made both on
13th December 1973 and at preceding and subsequent times. (at p190)
6. In par.25 of the defence the general allegation is made that on 13th
December 1973 the Senate failed to pass the Bill, or alternatively,
on that
day rejected the Bill. By par. 26 various points of law are raised as
follows:
"(a) Whether on the facts pleaded in the statement of claim
and admitted and pleaded in the defence, the Petroleum
and Minerals Authority Act 1973 (hereinafter
called 'the said Act') is an Act taken to have been duly
passed by both Houses of Parliament within the meaning
of s. 57 of the Constitution.
(b) Whether on the facts pleaded in the statement of claim
and admitted in the defence, the said Act is an Act
taken to have been duly passed by both Houses of
Parliament within the meaning of s. 57 of the Constitution.
(c) Whether on the facts pleaded in the statement of claim
and admitted in the defence and in particular the fact
that on 8th August 1974 His Excellency the Governor-General
declared the Assent of Her Majesty the Queen
to the said Act, the said Act can be said not to be a
valid law of the Commonwealth of Australia and the
said Assent can be said to be of no effect by reason only
of the fact (which is not admitted) that the said Act
was a proposed law which the Senate did not reject or
fail to pass prior to the dissolution simultaneously on
11th April 1974 of the Senate and House of Representatives.
(d) Whether the statement of claim is justiciable.
(e) Whether the plaintiffs have or either of them has standing
to seek the relief claimed in the statement of claim
upon the allegations contained therein." (at p191)
7. The grounds of the demurrer of Victoria are that the allegations contained
in the defence do not disclose facts which establish
that the Senate rejected
or failed to pass the Bill within the meaning of s. 57 of the Constitution on
13th December or that the consequent proclamation was valid, or that the joint
sitting had any power to vote upon the Bill or
that the Royal assent was valid
or effectual or that the Petroleum and Minerals Authority Act 1973 was a valid
law of the Commonwealth.
(at p191)
8. Though the demurrer is one to the defence, the initial question of law
which must be considered is whether on the whole of the
pleadings the
statement of claim discloses a cause of action; that is to say, the first
questions are those questions of law raised
in sub-pars (b), (c) and (d) of
par. 26 of the defence. If, and only if, those questions are decided against
the Commonwealth does
the question arise whether the matters raised in the
defence are such that proof of them will establish a failure to pass the Bill
on a day three months before the House of Representatives again passed the
Bill on 8th April 1974. (at p191)
9. First it is necessary to determine what is meant in s. 57 by the words
"fails to pass" and by the condition that the Senate should
fail to pass the
proposed law and then after an interval of three months the House of
Representatives should again pass the proposed
law. It is obvious that a
substantial question of construction arises from the use of these words "fails
to pass". The difficulty
of ascertaining the meaning of the word "fail" is a
real and a familiar one. In R. v. Southwark Borough Council; Ex parte
Southwark
Borough Market Trustees, Bankes L.J. said (1921) 124 LT 623, at p
624 : "Nobody doubts that the word 'fail' may have different meanings,
having
regard to the context in which that word is used". In Ingram v. Ingram,
Jordan C.J. wrote (1938) 38 SR (NSW) 407, at p 410
: "...where it is provided
by statute that certain consequences shall follow if a person fails to do
something which is directed
to be done, the meaning of the word 'fail' depends
upon the context in which it is found. In some contexts it may mean simply
the
omission to do the thing in question, irrespectively of any reason which
may have existed for his not doing it: Miedbrodt v. Fitzsimon
(1875) LR 6 PC
306, at pp 315-316 ; R. v. Southwark Borough Council; Ex parte Southwark
Borough Market Trustees (1921) 124 LT 623,
at p 624 . In other cases it may
mean an omission to do the thing by reason of some carelessness or delinquency
on his part, but
not omission caused by impossibility for which the person in
question is not responsible: cf. Loates v. Maple (1903) 88 LT 288,
at p 290 .
In other cases, it may mean omission to do the thing, but so that omission
caused by impossibility arising from some causes
is included and from others
is excluded: cf. Re Neilson (1890) 18 Rettie 338 ." (at p192)
10. This passage was quoted with approval by Taylor J. in Collector of
Customs (N.S.W.) v. Southern Shipping Co. Ltd. [1962] HCA
20; (1962) 107
CLR 279, at p 295
and in the same case Owen J. said (1962) 107 CLR, at p 305 : "In one context
the words 'fails'
may
import the
notion of fault. In another it may mean no
more than 'omits' or 'does not'." (at p192)
11. In s. 57, then, do the words "fails to pass" mean "does not pass" or
"omits to pass" or do they mean "neglects to pass"? The
construction to be
preferred must be determined from the context and from the purpose of the
constitutional provision disclosed by
its language. (at p192)
12. The importance of determining this question of construction goes much
deeper than the mere question whether or not the words
import concepts of
fault or default because the construction of the words "fails to pass" is in
grammatical construction and usage
bound up with the question - from what
point of time does the interval of three months commence to run? If one
concludes that the
interval of three months commences from a positive act or
omission of the Senate of which failure to pass is one then the words "fails
to pass" should be read as denoting a positive act or omission from which the
period of three months can commence to run and must
be given a meaning which
will enable such a point of time to be ascertained. But conversely, if the
words "fails to pass" are read
without importing therein any concept of fault
or default or positive omission at a point of time which may be fixed on as
the time
when the Senate ought to have dealt with the proposed law, then
inevitably the state of failure to pass or "not passing" will commence
once
there is a condition where the House of Representatives has passed the
proposed law and the Senate has not passed it, and the
interval of three
months will be computed from that time. That is to say that the interval of
three months will be computed from
the time when the House of Representatives
has passed the proposed law and the Senate having received the Bill has not
passed it.
(at p193)
13. If the words "fails to pass" did not appear in the section then the
period of three months would run only from the act of rejection
or passing
with amendments to which the House of Representatives would not agree. On the
other hand, if the only words which had
been used were the comprehensive words
"fails to pass", then the period of three months would in ordinary English
usage be a period
of three months during which the Senate did not pass the
proposed law. A difficulty arises from the circumstance that both the concept
of failure to pass and the concept of rejection or passing with amendments are
introduced into the same conditional clause. But
this mode of expression is
quite common in English usage and may best be explained by taking some simple
examples. A says to B,
"If you write to me requesting employment and if I
reply stating that no employment is available then after an interval of one
month
write to me again". There the interval of one month is in ordinary usage
the interval of one month after A's reply. On the other
hand, A says to B,
"If you write to me requesting employment and if I fail to reply then after an
interval of one month write to
me again". Ordinarily the interval of one
month would be taken to be that interval of one month after B's letter during
which A
does not reply. The words "fails to reply" are understood to mean "do
not reply" and the period is the period during which that
condition continues.
But A may combine both conditions and say to B, "If you write to me requesting
employment and if I reply stating
that it is not possible or if I fail to
reply, then after an interval of one month write to me again". In that case
the sense would
ordinarily be that the interval of failure to reply was that
period of a month during which A does not reply after receipt of the
letter.
And the reason is the practical impossibility of B knowing any other interval.
How long should he allow if he does not hear
from A? When should he conclude
that A ought to have replied and had not done so? So ordinarily we conclude
that what is referred
to is the period of time during which there is no reply
from A when he might have replied. We reach this conclusion from the context
and from the impracticability of any other construction. (at p194)
14. In the context of common English usage which we find in s. 57 I likewise
find the only practicable construction to be one where
the interval of three
months from a failure to pass is the interval during which the Senate does not
pass the proposed law when it
might have passed it. That interval is the
three months after the House of Representatives passes the proposed law and
sends the
Bill to the Senate. (at p194)
15. It was desirable in s. 57 in order to avoid uncertainty to express the
only three courses which were open to the Senate when
a proposed law was sent
up to it from the House of Representatives other than the course of passing
the law as proposed by the lower
House. It would not have been sufficiently
comprehensive and definitive in a constitutional provision to say, "If the
Senate does
not pass the proposed law within three months" and to leave it to
be inferred that there is no passing if, say, the proposed law
is passed in an
amended form. It was therefore obviously desirable to express the three
courses open to the Senate. Once the desirability
of this definitive mode of
expression is accepted it becomes impossible to include the adverbial phrase
expressing the period of
three months in the conditional clause expressing the
conditions of rejection, failure to pass, or passing with amendments to which
the House of Representatives will not agree and at the same time to give to
the Senate at least three months during which it might
consider the proposed
law. To have attempted to do so would have eroded the intention that the
Senate should have the full three
months. Thus, if s. 57 had provided "If the
House of Representatives passes any proposed law, and the Senate within three
months
rejects or fails to pass it, or passes it with amendments to which the
House of Representatives will not agree" the period of three
months would be
curtailed if, for instance, the Senate once rejected the proposed law. This
was not intended. (at p195)
16. Failure to do an act is a continuing state throughout the occasion of the
period allowed for its performance. If at any time
during the period allowed
the act is done then there is no failure. Any inchoate failure disappears upon
the doing of the act. On
the other hand, a state of failure to do the act by
the end of the occasion or the period relates back to the whole of the
occasion
or the period. (at p195)
17. It must be borne in mind that the object of s. 57 is attained once the
proposed law is passed by the Senate in a form acceptable
to the House of
Representatives. Accordingly, both time and recurrent opportunity are
intended to be given to the Senate to resolve
the actual or inchoate deadlock.
The purpose of the provision is to provide a way in which deadlocks between
the Senate and the House
of Representatives may be resolved, one way or the
other. It may broadly be said that it provides a way in which the will of the
people may be expressed and may prevail, though such a statement involves an
obvious over-simplification of our democratic political
system. Neverthless
that statement is true in the sense that, if the people indorse the Government
so that after the election the
same Government has the confidence of the House
of Representatives, then most probably, even if not certainly, there will, on
a joint
sitting of the Houses if that be still necessary, be a majority in
favour of the Bill as passed by the House of Representatives.
(at p195)
18. There is no duty imposed on the Senate to pass the proposed law as passed
by the House of Representatives. The Senate may or
may not take the Bill into
its consideration; if it does so it may pass it or reject it or pass it with
amendments. In the last
case the Bill goes back to the House of
Representatives. If that House agrees to the amendments then the deadlock is
resolved. If
it does not, the deadlock remains. But at no stage would it be
correct to describe the Senate as at fault or in default. The whole
concept
of fault or default is odious in such a context. (at p195)
19. These considerations lead me to the conclusion that s. 57 allows to the
Senate a period of three months from the time when it
is first open to it to
consider a proposed law passed by the House of Representatives. So long as it
does not pass the proposed
law it is in a state or condition of failing to
pass it. If during a period of three months it does not pass the proposed law
then
throughout the whole of the period it has failed to pass it. The failure
extends from the commencement of a state of affairs when
the House of
Representatives has passed the proposed law and has sent the proposed law to
the Senate. (at p196)
20. The contrary view, that the interval of three months extends only from
the time when the Senate by ascertainable act or omission
fails to pass,
appears to me to lead to very considerable difficulties and uncertainties in
construction and application of the section.
First, it requires that some
moment of time be discovered when it can definitively be said that the Senate
has failed to pass the
proposed law, some particular day from which the
interval of three months can in that event be calculated. The ascertainment
of
this day could be fraught with difficulty. It is not enough to say that
the House of Representatives should allow a good margin
before passing the
proposed law a second time. Reasons of great national interest may dictate
otherwise and the Constitution must speak unequivocally. A corollary to this
objection is that on such a construction of the section the House of
Representatives,
before it can pass the proposed law again for the purposes of
the section, must examine the conduct of the Senate and determine whether
three months have passed since the Senate "failed to pass" the proposed law.
It would be an invidious inquiry and determination and,
what is more, if this
litigation raises any justiciable issue at all, it would be an inquiry and
determination on a factual situation
in respect of which on the same or on
additional facts propounded in evidence this Court, or indeed any other court
of Australia
which is invested with federal jurisdiction, might subsequently
come to a contrary conclusion. That, it may be said, is a position
in which
persons in their private affairs are often placed. One party to a contract may
have to determine whether the other party
has by his conduct repudiated that
contract so that he, the first party, may rescind; and he may decide wrongly
and suffer the consequence
that his rescission is held in a court of law to be
void. But we are not dealing with private rights. We are dealing with public
rights which lie at the heart of our constitutional democracy. The lives of
the Government and of the national Parliament are in
such a case at stake. In
particular, the life of the elected Senate is at stake. If an error be made a
Senate elected by the electorate
for a certain period will be wrongly
dissolved or on another view the dissolution itself may be void. It would
indeed be an extraordinary
result. It may be that this consideration is of
even greater importance on the question whether the matter is justiciable
before
this Court at all, but it is by no means unimportant on the issue of
construction if it be assumed that the issue is justiciable.
(at p197)
21. Another objection to such a construction is that no time limit on the
consideration of the proposed law by the Senate is then
provided. One would
need to carry over into our Constitution an implication which is often
necessary in private law, namely, that the Senate should have a reasonable
time in all the circumstances.
What time was reasonable would in every case be
a question of fact. But a constitution is not the place for implied terms of
this
kind. It should speak for itself. (at p197)
22. It seems to me much better to construe the section as I have suggested.
Thereby the period of three months becomes the minimum
period allowed to the
Senate for consideration of the proposed law. During that period and
thereafter the Senate may deal with the
proposed law as it wishes. If within
that time or thereafter until the House of Representatives passes the proposed
law again it
may pass the Bill before it and the deadlock is resolved. There
is no longer any failure to pass the proposed law. If however the
Senate,
after having had the proposed law before it for three months, still has not
passed it, that House may pass the proposed law
again. If the Senate rejects
it, or fails to pass it or passes it with amendments to which the House of
Representatives will not
agree then the Governor-General may dissolve the
Senate and the House of Representatives simultaneously. No time is expressed
within
which on this second occasion the Senate must deal with the proposed
law and it has been suggested that this supports the construction
that "fails
to pass" refers to a positive time at which it may be deduced from the
circumstances that the Senate has failed to pass
the Bill. Otherwise, it is
said, how does the Governor-General know whether the occasion has arisen for
double dissolution? These
factors, far from detracting from the view which I
have expressed, strongly reinforce it. At any time after the House of
Representatives
has passed the proposed law a second time the Senate may pass
it and as long as it does not do so it is in a state of failing to
pass it.
During that time the Governor-General may dissolve both Houses. No doubt time
would be allowed. Advice to allow no time
would be so extraordinary that it
might require some extraordinary course on the part of the Governor-General.
But the giving of
such advice need not be contemplated. The delicate
relationship between the Crown and the Ministers of the Crown is in Australia
as in the United Kingdom maintained by the convention that advice given will
be advice which may properly be given within the spirit
of the Constitution.
The construction whereby failure to pass can be determined at a single point
of time would lead to a most remarkable result. The
failure would be a fact
which had happened and the condition precedent to double dissolution would
have occurred irrespective of
whether or not the Senate thereafter made good
its default and before the double dissolution passed the proposed law. The
double
dissolution could still proceed. That would be an impossible result
and therefore at the least failure to pass throughout s. 57 would need to be
read as a failure not only at but also from a particular point of time. But
once one takes that step the argument
in favour of a construction which would
require the ascertainment of some fault or default at a particular point of
time is very
much weakened. Any reason for preferring a construction of the
words "fails to pass" as meaning "neglects to pass" rather than "does
not
pass" disappears. For all these reasons I prefer to construe the words "fails
to pass" in the sense of "does not pass". That
being so the period of three
months runs from the time when the House of Representatives has passed the
proposed law and the Senate
received the proposed law and has not passed it.
Therefore on 8th April 1974 there had been a period of over three months
during
which this state or condition of things existed. The plaintiffs
therefore fail in their statements of claim to make out a cause
of action. (at
p198)
23. If I am wrong in my construction of s. 57 and if a point of time must be
ascertained at which it can be said that the Senate "failed", then the
plaintiffs must in their statements
of claim either allege that the Senate had
not, three months before 8th April 1974, so failed or allege facts from which
it follows
as a matter of law that the Senate had not so failed. But the
plaintiffs do neither. I have earlier outlined the contents of the
statements
of claim but I shall refer again to the salient dates. The lower House passed
the Bill on 12th December 1973. The Senate
took the Bill under consideration
on 13th December 1973 but declined to proceed beyond the first reading of the
Bill. It then saw
fit to adjourn the further consideration of the Bill for two
months and itself to adjourn for those two months. It did not resume
consideration of the Bill until 19th March. These facts do not establish that
the Senate, in taking this course, did not at some
point of time between 13th
December 1973 and 7th January 1974 "fail to pass" the Bill. The delay must
surely be regarded as some
evidence of failure. Such a course of events, as
related in the statements of claim, does not lead to a conclusion of law that
the
Senate did not by such actions fail to pass the Bill and it was for the
plaintiffs to allege the facts necessary to sustain their
claims. We have
been told that the adjournment of the Senate was for the purpose of taking its
Christmas or midsummer recess. There
is no such matter alleged in the
statements of claim, but, even if there were, such an allegation would provide
no conclusive explanation
of the delay. At the most it would be a factor to be
taken into account in categorizing the conduct of the Senate. A conclusion on
such an important question affecting political and constitutional security
cannot turn on a court taking note of the fact that the
Senate prefers not to
sit between mid-December and mid-February. To do so would detach the course of
events from the reality. There
is nothing before the Court which would
establish or even suggest that in reality the Senate as constituted ever at
any time had
any intention of passing the Bill. It would be wrong to
conjecture that on 13th December the Senate required the further time for
consideration of the measure, but could not give that time because of the need
to take the Christmas recess. Even if the Court does
take notice of the
Senate's sessional preferences it does not follow that in the particular
circumstances it was reasonable for the
Senate to adjourn leaving this
business undone despite the urgings of the country's government and of the
lower House that the business
be done. (at p199)
24. Thus the course of events related in the statement of claim does not
establish that the Senate did not fail to pass the Bill;
on the contrary it
provides material from which a conclusion of fact could be drawn that the
Senate, if not on 13th December, then
in the succeeding days, failed to pass
the Bill. Indeed, if the matter fell to be determined as a conclusion from
the allegations
in the statement of claim I would conclude that the Senate on
13th December 1973 by simply adjourning further consideration of the
Bill
until February 1974 failed to pass the Bill. (at p199)
25. I am therefore of the opinion that on either construction of s. 57 the
statement of claim does not allege facts which establish a right to the relief
claimed and that on the demurrer to the defence
there ought to be judgment for
the defendant in accordance with the old established practice governing
demurrers. See Stephen on
Pleading, 1st ed. (1824), p. 162; Holdsworth,
History of English Law, vol. IX, p. 28. In view of my primary conclusion on
the construction
of the section and of the facts as alleged in the statements
of claim there would be no point in granting leave to amend in order
that the
plaintiffs might make a specific allegation that the Senate had not failed to
pass the Bill. Such an amendment would only
be necessary if the decision
turned on the conclusion which I have alternatively and secondly expressed. I
would therefore dismiss
the action by Victoria against the Commonwealth and
likewise the actions by the other States. (at p200)
ORDER
VICTORIA AND ATTORNEY-GENERAL (VICTORIA) v. THE COMMONWEALTH AND CONNOR
Demurrer allowed with costs.
Declare that the Petroleum and Minerals Authority Act 1973 is not a valid
law of the Commonwealth.
Liberty to the plaintiff to apply.
Questions referred by Stephen J. unnecessary to answer.
Remit summons for the striking out of the Defence for determination by
Stephen J.
NEW SOUTH WALES v. THE COMMONWEALTH
Declare that the Petroleum and Minerals Authority Act 1973 is not a valid
law of the Commonwealth.
Defendants to pay plaintiffs' costs.
QUEENSLAND v. THE COMMONWEALTH
Questions referred by Stephen J. unnecessary to answer. Matter remitted to
him for final determination. Costs to be in the discretion
of Stephen J.
WESTERN AUSTRALIA v. THE COMMONWEALTH
Questions referred by Stephen J. unnecessary to answer. Matter remitted to him for final determination. Costs to be in the discretion of Stephen J.
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