High Court of Australia|1974-08-05

Cormack v Cope ("Joint Sittings case") [1974] HCA 28; (1974) 131 CLR 432 (5 August 1974)

QUEENSLAND v. WHITLAM [1974] HCA 28; (1974) 131 CLR 432

Barwick C.J.(1), McTiernan(2), Menzies(3), Gibbs(4), Stephen(5) and Mason(6) JJ.

* Section 57 of the Commonwealth Constitution provides: "Disagreement between the Houses. - 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 Rerpesentatives, 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."

QUESTIONS and MOTIONS referred pursuant to s. 18 of the Judiciary Act 1903-1969 (Cth). (at p434)

BARWICK C. J. We will deliver judgment in these two motions separately. Much that is said in relation to the first will no doubt apply to the second. (at p447)

2. The course which these proceedings have taken and the urgency for a decision have not allowed an opportunity for the writing of reasons for judgment which would fully and adequately expound my own views upon all the ramifications of the arguments which have been presented. But because of the importance of the matter I will express my opinion on the principal points, though at times without full development of my reasons therefor. None the less I am afraid that it may take some time for me to express my opinion. (at p447)

3. A motion for an interlocutory injunction and a question as to whether the declarations sought in this suit should be made were directed to be argued before a full Court pursuant to s. 18 of the Judiciary Act 1903-1969 (Cth). It is important to bear in mind that the proceedings which were before the Chief Justice and which are now before the Full Court are of an interlocutory character. The suit itself is not before the Court. It is not ready for disposal, pleadings not being complete and the suit not otherwise ready for a final hearing. (at p448)

4. The plaintiffs in the suit are two members of the Senate. By their suit they seek the following relief which I take from the prayers of their statement of claim:

1. A declaration that the proclamation issued by the defendant Sir John Robert Kerr dated 30th July 1974 convening a joint sitting of the Members of the Senate and of the House of Representatives is invalid, void and of no effect.

2. Alternatively, a declaration that the said joint sitting is not empowered to and may not deliberate and vote upon all of the proposed laws referred to in the said proclamation, namely the proposed laws described in the schedule hereto.

3. A declaration that the said joint sitting may deliberate and vote upon one only of the said proposed laws.

4. A declaration that the proposed law intituled Petroleum and Minerals Authority Act 1973 was not a proposed law upon which under s. 57 of the Constitution the Governor-General could lawfully dissolve the Senate and House of Representatives simultaneously on the grounds:-

(i) that the said proposed law lapsed by virtue of the prorogation of Parliament on 14th February 1974; (ii) alternatively, that the said proposed law was not passed by the House of

Representatives for the second time after an interval of three months within the meaning of the said s. 57.

5. A declaration that the said joint sitting may not deliberate and vote upon the proposed law intituled Petroleum and Minerals Authority Act 1973.

6. An injunction restraining the defendants (other than the sixth and seventh defendants) and each of them from introducing into the said joint sitting any of the said proposed laws.

7. Alternatively to 6, an injunction restraining the said defendants and each of them from introducing into the said joint sitting more than one of the said proposed laws.

8. An injunction restraining the said defendants and each of them from introducing into the said joint sitting the proposed law intituled Petroleum and Minerals Authority Act 1973.

9. An injunction restraining the said defendants and each of them from presenting any of the said proposed laws to the defendant Sir John Robert Kerr, the Governor-General of the Commonwealth, for the Queen's assent.

10. An injunction restraining the said defendants and each of them from presenting to the said Sir John Robert Kerr, Governor-General of the Commonwealth, for the Queen's assent any such proposed laws purporting to have been affirmed by the said joint sitting except one of such proposed laws.

11. An injunction restraining the said defendants and each of them from presenting to the said Sir John Robert Kerr, Governor-General of the Commonwealth, for the Queen's assent the said proposed law intituled Petroleum and Minerals Authority Act 1973.

12. Costs.

13. Further or other relief as the nature of the case may require.

14. This cause is within the original jurisdiction of the High Court as it

involves the interpretation of the Constitution. (at p449)

5. The defendants to the suit, as originally commenced, are: James Francis Cope, Justin O'Byrne, Edward Gough Whitlam, Norman James Parkes, Lionel Keith Murphy, Sir John Robert Kerr, Commonwealth of Australia and James Rowland Odgers. Upon the matter coming before the Court, it was pointed out by the Court that Sir John Kerr, the Governor-General, ought not to have been a party to the proceedings. His Excellency was neither a necessary nor a proper party, even in relation to that part of the claim which related to the proclamation which he had made. The Court ordered that his name be struck out as a defendant. (at p449)

6. The only appearance of the defendants was an appearance for the Commonwealth of Australia by its Attorney-General and its Solicitor-General with other counsel. (at p449)

7. It is important to my mind to dispose at the outset of what I consider to be a radical misconception about s. 57 of the Constitution, the nature of the proceedings which it prescribes, and the role and function of this Court in relation to the law-making process for which s. 57 makes provision. I do so because that misconception has led, in my opinion, to the form of the proclamation made on 30th July 1974. (at p449)

8. When the two Houses have so far disagreed, the proposed law passed by the House of Representatives having been twice rejected by the Senate (throughout these reasons I shall include in the word "reject" or "rejection" the failure to pass or a passage with amendments unacceptable to the House of Representatives), an appropriate period of time having elapsed between the first rejection and its second passage by the House of Representatives, the Governor-General is empowered to dissolve both Houses at the same time. The power given by s. 5 of the Constitution is only a power to dissolve the House of Representatives. The dissolution of the Senate can only be effected by action pursuant to s. 57. The basis of this power of dissolving the Senate along with the House of Representatives is described in the first paragraph of s. 57. It seems to have been thought that, when exercising this power, the Governor-General dissolves both Houses in respect of or in relation to some specific proposed law which has thus been twice rejected by the Senate in accordance with the prescription of the first paragraph of s. 57. But this, to my mind, is a basic misconception. Whilst it is true that there must have been in fact the required rejection of a proposed law by the Senate before the Governor-General may lawfully dissolve both Houses he does not dissolve the Houses in relation to or in respect of any particular law. He merely dissolves the Houses. (at p450)

9. The means by which the Governor-General makes known his act of dissolution is by a proclamation. It seems that such a proclamation customarily contains a recital to the effect that some specific proposed law, or on this occasion specific proposed laws, has or have been rejected as required by s. 57. But, in my opinion, such a recital referring to a specific proposed law is quite unnecessary. Indeed, it may be apt to be misleading. In the first place, it is not given to the Governor-General to decide whether or not in fact the occasion for the exercise of the power of double dissolution has arisen. In my opinion, only this Court may decide that fact if it comes into question. But of course, the Governor-General must make up his own mind whther the occasion has arisen for him to exercise his power of double dissolution and he may recite that it has. But what he determines for himself is in no wise binding. To recite that a specific proposed law or specific proposed laws has or have in fact satisfied the prescription of s. 57 may tend to give the impression that the Governor-General is deciding that matter of fact. Secondly, such a recital tends to give support to what I consider the misconception that the dissolution is in respect of or in relation to a specific proposed law or specific proposed laws. (at p450)

10. The dissolution by the Governor-General of both Houses of the Parliament is an act, an act of the Crown pursuant to the statutory power contained in s. 57. The manner in which that act will be performed is not prescribed by s. 57 though s. 5 allows the dissolution of the House of Representatives or the prorogation of the Parliament to take place by proclamation "or otherwise". Thus, in the case of the dissolution of both Houses of the Parliament it is not so much a question of the conformity of the Governor-General's proclamation with any statutory provision, but rather of the lawfulness of the act of dissolution. (at p450)

11. Section 57 prescribes a special process of lawmaking. Its first prerequisite is that there should have been a double dissolution of both Houses of the Parliament; it then requires that after such a dissolution there must be rejection by the Senate of a proposed law which has already fulfilled the requirements of the first paragraph of the section. There must then be a duly convened joint sitting of both Houses at which members of both Houses, voting together, affirm the proposed law. Thereafter it must be presented for and receive the Royal assent. (at p451)

12. The rejection by the Senate of the proposed law after the double dissolution allows the Governor-General in his discretion to convene a joint sitting of the members of the Senate and of the House of Representatives. In my opinion, it is not for the Governor-General to decide whether or not the conditions for the exercise of his discretion to convene the joint sitting have occurred. That again, in my opinion, is a matter for this Court; but naturally, His Excellency will need to satisfy himself before he exercises his power that the occasion has arisen on which he may do so. (at p451)

13. In the exercise of the power to convene a joint sitting of the Houses of the Parliament, unlike the act of dissolution of both Houses, something in the nature of an order or direction is required; something akin to the exercise of the power to appoint times for the holding of the sessions of the Parliament pursuant to s. 5 of the Constitution. The joint sittings must be convened for a place and for a time: accordingly a direction or appointment by the Governor-General is necessary. Such an appointment or direction is traditionally made by proclamation: thus, one would expect the power of convening a joint sitting of the Houses for a particular place, date and time, to be effected by proclamation. Consequently, the question arises whether the proclamation is in conformity with the statutory power. The convening of the joint sitting was purported to be done in this case by proclamation. (at p451)

14. But it is important to observe that the full power which s. 57 gives to the Governor-General when the occasion is appropriate is to "convene a joint sitting of the members of the Senate and of the House of Representatives". It is no part of the Governor-General's function to determine what shall occur at the joint sitting or to direct what proposals may be discussed or what not discussed at such a sitting or what is the purpose of the joint sitting. That is determined by the Constitution in the third paragraph of s. 57 (at p451)

15. This special manner of passing a law pursuant to s. 57, therefore, requires the steps which I have already outlined. (at p451)

16. I should advert, at this point, to a submission made by the Attorney-General, of a very wide-ranging kind. It was submitted that the Governor-General, when performing his functions under s. 57, was participating in the Parliamentary process of law-making so as to attract to all that he did what was referred to as the privileges of Parliament. Thus, according to the submission, this Court could not inquire into the regularity of what the Governor-General had done or, indeed, into the regularity of any of the steps in the law-making process required by s. 57. (at p452)

17. The submission was founded on the fact that s. 49 had brought to the Senate and the House of Representatives all the powers, privileges and immunities of the House of Commons in the United Kingdom as at the establishment of the Commonwealth. It was then recalled that the Commons from the time, at least of the Bill of Rights in 1689, enjoyed certain privileges and immunities, one of which much emphasized by the Attorney-General was freedom of speech. The courts in the United Kingdom have traditionally refrained from any interference in the law-making activities of the Parliament. It was claimed that this restraint, if not indeed inability, on the part of the courts of the United Kingdom was part of the privileges and immunities of the Commons to which the House of Representatives and the Senate had succeeded by dint of s. 49 of the Constitution. (at p452)

18. But the submission, in my opinion, was basically misconceived. We are not here dealing with a Parliament whose laws and activities have the paramountcy of the Houses of Parliament in the United Kingdom. The law-making process of the Parliament in Australia is controlled by a written Constitution. This is particularly true of the special law-making process for which s. 57 makes provision. It has been pointed out by the Privy Council in unequivocal language in the case of Bribery Commissioner v Ranasinghe [1964] UKPC 1; (1965) AC 172 that where the law-making process of a legislature is laid down by its constating instrument, the courts have a right and duty to ensure that that law-making process is observed. Lord Pearce, speaking for the Privy Council, after referring to certain passages in the Board's opinion delivered in the case of McCawley v. The King [1920] UKPCHCA 1; (1920) AC 691; (1920) 28 CLR 106 , said this (1965) AC at pp 197-198 :

"These passages show clearly that the Board in McCawley's Case took the view, which commends itself to the Board in the present case, that 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. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is 'uncontrolled', as the Board held the Constitution of Queensland to be"

I interrupt the quotation to remark that the Parliament of Australia is not uncontrolled, but controlled by the Constitution. Lord Pearce continued, in relation to the legislatures of Ceylon and Queensland (1965) AC at p 198 :

"Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions."

Again I interrupt the reading to point out that the Parliament of this country may not alter the Constitution except in conformity with s. 128 thereof. Lord Pearce continued ( 1965) AC at p 198 :

"But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process."

These words were written with respect to a Constitution which required a particular majority for the passage of an Act of a particular nature. The analogy in the case of s. 57 is that the Constitution requires the various steps which I have outlined to be validly taken as a part of the law-making process. Speaking of the position of the Court in relation to such law-making processes, laid down by the constating instrument, Lord Pearce said in that case (1965) AC at p 194 : "The Court has a duty to see that the Constitution is not infringed and to preserve it inviolate," language which is singularly appropriate to the position of this Court in relation to the Australian Constitution. (at p453)

19. Whilst it may be true the Court will not interfere in what I would call the intra-mural deliberative activities of the Parliament, it has both a right and a duty to interfere if the constitutionally required process of law-making is not properly carried out. In this connexion, we have the guidance of the Privy Council in Rediffusion (Hong Kong) Ltd. v. Attorney-General (Hong Kong) (1970) AC 1136 . There Lord Diplock, speaking for the Board, pointed out the approval of the Privy Council of Trethowan v Peden (1930) 31 SR (NSW) 183 , where the Supreme Court of New South Wales had interfered to ensure that the prescribed process of law-making was followed, not in that instance so much by the constating instrument as by the Colonial Laws Validity Act, 1865 (Imp.). His Lordship also stated what the Board considered the real basis of the observation in Clayton v. Heffron [1960] HCA 92; (1960) 105 CLR 214, at p 235 , namely, that they were to be understood as dealing with the Court's practice in exercise of discretion and not as denying jurisdiction. "The application of a discretion to refuse relief even though this may be pursuant to a settled practice is an exercise of jurisdiction, not a denial of it" (1970) AC, at p 1155 . What was said by the Chief Justice and Justices in Osborne v. The Commonwealth [1911] HCA 19; (1911) 12 CLR 321 can, in my opinion, be accepted if confined to the provisions of the Constitution with which the Court was then dealing. In my opinion, it is not acceptable as a statement of universal application, denying the Court jurisdiction to ensure observance of the conditions of the law-making process itself. (at p454)

20. Thus there are two distinct answers to the submission made by the Attorney-General. First of all, in my opinion, the Governor-General in convening a joint sitting, or, for that matter, in dissolving both Houses, is not participating in the parliamentary process of law-making in any relevant sense. His act of dissolving both Houses and his direction for the convening of a joint sitting is in each instance an executive act. It is an act of the Crown in pursuance of a statute, the Constitution, and within the cognizance of this Court. The Crown's sole part in the parliamentary process of law-making does not begin until the proposed law has been passed by both Houses or affirmed in a joint sitting and is presented for the Royal assent. (at p454)

21. Second, it is not the case in Australia, as it is in the United Kingdom, that the judiciary will restrain itself from interference in any part of the law-making process of the Parliament. Whilst the Court will not interfere in what I have called the intra-mural deliberative activities of the House, including what Isaacs J. called "intermediate procedure" and the "order of events between the Houses" (1911) 12 CLR at p 363 , there is no parliamentary privilege which can stand in the way of this Court's right and duty to ensure that the constitutionally provided methods of law-making are observed. (at p454)

22. Ordinarily, the Court's interference to ensure a due observance of the Constitution in connexion with the making of laws is effected by declaring void what purports to be an Act of Parliament, after it has been passed by the Parliament and received the Royal assent. In general, this is a sufficient means of ensuring that the processes of law-making which the Constitution requires are properly followed, and in practice so far the Court has confined itself to dealing with laws which have resulted from the parliamentary process. But nothing in that process has its precise analogy of or to that prescribed by s. 57. In my opinion, the Court in point of jurisdiction is not limited to that method to ensuring the observance of the constitutional processes of law-making. It seems to me that in an appropriate, though no doubt unusual, case when moved by parties who have an interest in the regularity of the steps of the law-making process at the time intervention is sought, the Court is able, and indeed in a proper case bound, to interfere. The case of Rediffusion (Hong Kong) Ltd v. Attorney-General (Hong Kong) (1970) AC 1136 is illustrative of such a power. That it deals with a legislature of more modest proportions than those of the Australian Parliament does not make the principles of that case inapplicable to the present. I would therefore reject entirely the Attorney-General's submission that this Court is powerless to decide upon the regularity of any of the steps in the law-making process under s. 57, including the proclamation of the Governor-General purporting to convene a joint sitting. (at p455)

23. We were informed by the Attorney-General that each of the Houses of the Parliament has resolved that the proceedings of the joint sitting should be parliamentary proceedings, thus attracting the provisions of s. 49. In my opinion, this fact is irrelevant to the question whether this Court has the right and duty, to use Lord Pearce's words to "see that the Constitution is not infringed and to preserve it inviolate" (1965) AC at p 194 . It may be relevant if the intra-mural deliberative procedures of the Houses of Parliament were the only matter in question. (at p455)

24. I now turn to the detail of the present matter. I have indicated the nature of the relief which is sought in the suit by the plaintiffs. Their claim to that relief is placed, it seems to me, on two principal grounds, although perhaps these grounds overlap in discussion. It is said that the proclamation is void for two reasons: first, that in terms it exceeded the power given to the Governor-General by s. 57 in that it specified what should be discussed at the joint sitting and directed that each of the proposed laws should be voted upon at the meeting. It is then said that it would not be competent for a joint sitting to vote on at least one of the specified proposed laws. Second, that on its proper construction s. 57 only allows one proposed law to be discussed and voted upon at a joint sitting whereas the proclamation named six proposed laws on each of which there was to be a vote. (at p455)

25. The other ground of the plaintiffs' claim is, as I have just mentioned, only one law could be discussed and passed or affirmed at the joint sitting whereas it was proposed that six proposed laws should be so dealt with at that sitting. Perhaps it might be convenient if I dealt at once with this last submission. It is founded principally, if not entirely, upon the singularity of the language in which s. 57 is expressed when it refers to the proposed law. So much, of course, may be granted. It was then said that there was no warrant for turning the singular into the plural throughout the various provisions of s. 57 because if one were to make the substitution in one part of a provision it must necessarily be made in the remaining parts of that provision. If that were attempted in relation to s. 57 it was said it would be seen that such an exercise was not really possible. (at p455)

26. But it seems to me there is no need for any change in the language of the section in order to justify a joint sitting discussing and voting upon more than one proposed law which has satisfied the prescription of the first paragraph of s. 57. Because the proposed law must be identified with its earlier history, its earlier parliamentary history, it is of course necessary to use the singular. But there is nothing in the section, or in the evident reasons for its enactment which requires that only one proposed law should be so discussed and voted upon. (at p456)

27. I have already indicated that the double dissolution is not granted in relation to or in respect of any particular law or, for that matter, particular laws. It is simply granted. The Houses are both dissolved. It is the second and third paragraphs of s. 57 which control what is to happen after double dissolution in the law-making process, and it is the third paragraph which determines what shall be deliberated and voted upon at the joint sitting. Therefore, if this submission of the plaintiffs is to be made good one would need to find in the third paragraph of s. 57 a limitation on the number of proposed laws which could be the subject of deliberation and voting at the joint sitting. I find no such limitation, and in particular I do not find it from the circumstance that the singular is used in describing what may be the subject of deliberation and voting. Indeed, it could not be otherwise because each proposed law as a unit in itself has to answer the prescription of the earlier part of s. 57 and, in my opinion, could only be referred to as "the proposed law". The same can be said of each successive proposed law which is sought to be made the subject of deliberation and voting at the joint sitting. (at p456)

28. I am quite conscious of the fact that such a view of s. 57 leaves open the possibility that, as it were, a storehouse of proposed laws could be built up during the life of a Parliament so that after a double dissolution they might be presented at the one time to a joint sitting, thus making a considerable inroad upon the basic concept of the Constitution which provides for a bicameral system of Parliament. But whilst this is perhaps a possibility, it seems to me it is not to be prevented by what to my mind would not be merely a strained but an unwarranted construction of s. 57. The control of such a possibility might lie in the formation and observance of parliamentary conventions designed to implement the spirit of parliamentary government as under the Constitution. (at p456)

29. Thus, even for the purposes of an interlocutory application, I would not regard the plaintiffs as having made out a case either for a declaration or for an injunction on a construction of s. 57 which would deny the possibility of there being more than one proposed law deliberated and voted upon at a joint sitting of both Houses of the Parliament pursuant to a due convening of such a sitting. (at p456)

30. I turn now to the submission which has given me a great deal of difficulty. One part of the submission, however, is relatively clear. It is said that in respect of the Petroleum and Minerals Authority Act 1973, the requisite interval of three months between the rejection by the Senate and the second passage of the bill by the House of Representatives did not elapse. In my opinion, the commencing point for the calculation of the interval of three months which the first paragraph of s. 57 prescribes is the time when the Senate rejected the proposed law. No doubt there may be circumstances in which a decision of the precise date on which the Senate did so reject the proposed law would be difficult, but that is no reason for not adopting what is to my mind the propor construction of the section. It is clear enough that the event which begins the possibility of the use of the law-making process of s. 57 is the Senate's rejection of the proposed law. I do not see any relevance to that law-making process of the date of the passage initially of a proposed law by the House of Representatives. (at p457)

31. Here the interlocutory nature of the proceedings obtrudes itself. If this were the hearing of a suit and the evidence stood as it stands now, I would have little difficulty in finding that in fact the proposed law consisting of the Petroleum and Minerals Authority Act 1973 did not qualify as a proposed law which could be deliberated and voted upon in a joint sitting of the House under s. 57. But this is not the final hearing and there was a claim made by the Attorney-General that issues of fact had yet to be examined. Indeed he claimed for that reason that the defendant Commonwealth was not prepared to facilitate the final resolution of the suit at this time. (at p457)

32. Whilst I have some difficulty in imagining what relevant issues of fact could be outstanding I am bound in the present state of the matter to confine myself to what is proper to be done in an interlocutory proceeding. The evidence which we had before us consists of an affidavit which annexes the proclamation and gives the timetable of the activities of the respective Houses of the Parliament in relation to the six proposed laws. We have had exhibited to us the pages of the "Journal of the Senate" of 13th December 1973 which on their face unequivocally indicate that at that date the Senate did not reject the Petroleum and Minerals Authority Bill, the second reading of which was before it on that day: but that it adjourned the debate of it. It is clear from the Journal that the Senate merely adjourned the debate until a date in February 1974. At a late stage a further affidavit was tendered by the Attorney-General but I do not see that that carries the matter any further. (at p457)

33. On 14th February 1974 the Governor-General prorogued the Parliament with the consequence that all the then pending business, including the Petroleum and Minerals Authority Bill 1973 lapsed: or, as is said in relation to a bill, was quashed. On 7th March 1974, in the next session of the Parliament, the House of Representatives requested the Senate to resume consideration of the Petroleum and Minerals Authority Bill 1973. However, a Bill in the terms of the Petroleum and Minerals Authority Bill 1973, having been passed by the House of Representatives in that session, was returned to the Senate on 19th March. It was rejected by the Senate on 2nd April. It was passed again by the House of Representatives on 8th April and on that day returned to the Senate which, on 10th April, adjourned its second reading. (at p458)

34. The recital of this sequence of events makes it abundantly clear that a period of three months did not elapse between the first rejection of the proposed law by the Senate and the passage again of the proposed law by the House of Representatives. Consequently, on those facts, it would not be a Bill which could be described as "the proposed law" for the purposes of par. (2) of s. 57 or which could be the subject of deliberation and voting at the joint sittings. Thus, conformably with the proper procedures in an interlocutory matter, upon the evidence as it now stands, it can be said that it is probable that at the hearing of this suit it will be found that the Petroleum and Minerals Authority Bill 1973 was not relevantly a proposed law within the operation of s. 57. (at p458)

35. It is around the consequences of such a finding that the particular problem in this case for me arises. When the proclamation of the Governor-General is examined, it is much more than a mere convening of the joint sitting of the members of the Senate and of the House of Representatives at a stated place, date and time which, as I have mentioned, is all that the Governor-General is empowered to do. It purports to fix the business of the meeting, i.e. the purposes of the joint sitting, and to provide that at the meeting members may deliberate upon and shall vote upon each of the six specified proposed laws. It does clearly specify the Petroleum and Minerals Authority Bill 1973 as a proposed law upon which the members may deliberate and shall vote, with the intended consequence, no doubt, that if affirmed, a proposed law in those terms should be taken to be duly passed and presented for assent. (at p458)

36. It is thus clear to my mind that the Governor-General has exceeded his function in specifying the business of the joint sitting and in directing that there shall be voting upon each of the specified bills, including the Petroleum and Minerals Authority Bill 1973. But what is the effect, so far as the validity of the proclamation is concerned, of this excess of authority on the part of the Governor-General? The Court does not have available to it any statutory provision which might possibly enable severance from the proclamation of any part which might be said to be beyond power. The Acts Interpretation Act 1901-1966 (Cth) does not apply to the proclamation which is not a statutory instrument within the operation of s. 15A or s. 46 of that Act. (at p458)

37. I very much doubt whether the statement in the proclamation that the joint sitting is one at which the members shall vote upon each of the proposed laws can be regarded as surplusage or something included per incuriam. Of course, it cannot have any force. But that is true of any instrument. But no more can any void instrument. It seems to me that the expression "shall vote upon each" is something in the nature of a direction. It is not something that is merely descriptive. It seems to me that the recital in this proclamation of the earlier proclamation of the former Governor-General, with its reference to the six proposed laws, carried forward the misconception to which I have already referred. It appears to have formed the basis of this proclamation. It seems to have been thought that as the double dissolution was in respect of or in relation to the six proposed laws it was both appropriate and necessary that the joint sitting be related specifically to those proposed laws and by inference to no other. Therefore, the proclamation took the course of directing voting upon each of those laws. Whilst, of course, the Governor-General could not decide that the laws were all laws which it was appropriate that the members should discuss and vote upon in the joint sittings, it is significant that his proclamation took the form that it did. It must be remembered that it is a proclamation convening a meeting with which we are dealing. Whilst the last paragraph of the proclamation requiring the attendance of members may have, itself, no force as a command, it is indicative of the nature of the proclamation in that it calls the members together and tells them what they may deliberate and upon what they are to vote. (at p459)

38. I think this analysis of the proclamation makes it clear, to my mind, that the two senators who are the plaintiffs have an interest to maintain the suit to have the proclamation declared void. Whilst it stands it is a justification for the members to sit together and for them to deliberate and vote as directed. The interests of the senators, as such, in my opinion are prejudically affected both by the proclamation and by what is purported to have directed it. I am therefore of opinion that they have a sufficient interest to maintain their suit. (at p459)

39. I am of opinion that the inclusion in the direction of what is to be voted upon at the meeting could not in any case have properly included the Petroleum and Minerals Authority Act 1973 upon the evidence as it now stands. (at p459)

40. The matter standing as it is as an interlocutory proceeding, it would not be proper, in my opinion, for the Court to make a declaration now that the proclamation is void. But it is proper that the Court consider whether, if the matter stands at the hearing in point of evidence as it does now, there is a likelihood that the proclamation will be declared invalid and void. (at p459)

41. I have given the question of the validity of the proclamation my anxious consideration during the hearing of this matter and in the intervals of time for which it stood adjourned. I have no doubt the proclamation in terms goes beyond what s. 57 empowers the Governor-General to do. The question to my mind is whether what I regard as an excess in the proclamation is so much part of its substance that the proclamation as a whole should be declared void. I have come to the conclusion it cannot be said now that it is unlikely that at a hearing the proclamation would be declared void. Indeed, the inclination in my mind at present it to think that there is a likelihood of a finding of invalidity. (at p460)

42. Such a conclusion would provide ground on which to grant an interlocutory injunction if otherwise the circumstances were appropriate. However, it seems to me it is quite inappropriate to grant an injunction, either to restrain the holding of a joint sitting or to restrain the presentation to it of any particular item of business. (at p460)

43. I would not refuse an injunction on the ground that the plaintiffs have an alternative remedy. No doubt, if the proclamation is void, any purported act resulting from the joint sitting will be invalid. An Act in terms of the Petroleum and Minerals Authority Act 1973 may well be void if resulting from the joint sitting. But it does not seem to me that the plaintiffs would have any interest upon which to found a suit for a declaration of invalidity of any of the proposed laws if enacted in pursuance of a joint sitting. (at p460)

44. It may be that having regard to the identity and office of the various defendants as form of injunction could be devised to preserve the status quo until the hearing of a suit. This may be particularly so if one knew precisely what the procedures are for the joint sitting and who will be in charge of it. However, that we do not know. (at p460)

45. But, having regard to the fact that if the joint sitting proves not to have been duly convened and affirms laws which do not satisfy s. 57, those laws of some of them made in pursuance of its votes could be declared void at the instance of a proper plaintiff, I am of opinion that the Court should not grant an interlocutory injunction. In so deciding, I have borne in mind the interests of the plaintiffs to seek the relief they have sought, but this consideration is not so great or compelling as to outweigh other considerations to which weight must be given. Not only is there difficulty in finding appropriate persons to enjoin, but having regard to the Court's power to declare void Acts not passed in conformity with the provisions of s. 57 the Court, in my opinion, ought not now to intervene by way of interlocutory relief. (at p460)

46. It is perhaps unfortunate that time does not allow for an expedited hearing of the suit so that the Court could finally resolve the matter. However, in my opinion, the motion for injunction should be refused and the question should be answered that the Court has power to make such a declaration on the hearing of a suit, but that it should not make a declaration in the interlocutory proceedings before the Court. (at p461)

McTIERNAN J. I am not in total agreement with the learned Chief Justice in his conclusions with respect to the relations between the Court and the Governor-General in the matter of s. 57 of the Constitution. (at p461)

2. I have had the opportunity of preparing only a statement of the conclusions at which I have arrived. (at p461)

3. I am of opinion that the question referred to the Court should be answered in the negative and the motion for an interim injunction should be refused. I am of opinion that neither proclamation upon its proper construction contravenes s. 57. I see no reason for declaring either of the proclamations to be invalid. (at p461)

4. Apart from the question of the formal validity of each proclamation the grounds urged in support of the present motion depend upon matters relevant to conditions or events mentioned in s. 57. In my judgment, those matters are intrinsically of concern to the Senate and the House of Representatives respectively. In my opinion, none of such matters dealt with in argument is appropriate for a trial in this Court so far as any of the six proposed laws is concerned. They are not, in my opinion, justiciable issues. (at p461)

5. As I have said, I therefore decline to grant the motion and I think the question referred to us for our opinion should be answered in the negative. (at p461)

MENZIES J. The plaintiffs are two members of the Senate. The defendants are the Commonwealth of Australia, the Prime Minister of Australia, the Speaker of the House of Representatives, the President of the Senate, the Attorney-General of the Commonwealth, the Clerk of the House of Representatives and the Clerk of the Senate. (at p461)

2. The relief claimed consists of a number of declarations and injunctions. First, a declaration that the proclamation of the Governor-General, dated 30th July 1974, convening a joint sitting of the members of the Senate and of the House of Representatives is of no effect. Secondly, declarations as to what proposed laws the joint sitting, if held, may deliberate and vote upon. Thirdly, injunctions restraining the defendants from introducing any of the proposed laws into the joint sitting. Fourthly, injunctions restraining the defendants from presenting to the Governor-General proposed laws affirmed at the joint sitting by an absolute majority of the total number of the members of the Senate and the House of Representatives. (at p461)

3. Fundamental to this case is s. 57 of the Constitution of the Commonwealth of Australia which broadly speaking provides for two matters: first, a double dissolution by the Governor-General in the event of disagreement between the Houses upon any proposed law and, secondly, after such dissolution and consequent election the enactment of the proposed law upon which there has been disagreement, if that disagreement should continue, by a joint sitting of the members of the Senate and the House of Representatives convened by the Governor-General. Such an enactment by the necessary majority would take place by virtue of a special parliamentary proceeding provided by the Constitution itself without the need for any legislation. For the plaintiffs it was contended that the section does not permit a joint sitting of members of the Senate and House of Representatives to deliberate and vote upon more than one proposed law, notwithstanding that, at the time of the double dissolution, there were a number of proposed laws upon which there was disagreement warranting a double dissolution. I do not so read s. 57. (at p462)

4. The first paragraph of the section provides for a double dissolution and I see no reason why, in deciding whether or not to grant a double dissolution, the Governor-General cold not take into consideration that there is disagreement between the Houses upon a number of proposed laws. It is true that disagreement upon one would be enough for the exercise of His Excellency's powers but, as I see it, there is not reason why the Governor-General should not decide to grant a double dissolution because of disagreement upon more than one proposed law. That is what His Excellency the Governor-General, Sir Paul Hasluck, did here as the proclamation of the 11th April demonstrates. It is not suggested that this proclamation which stated that conditions warranting a double dissolution had been fulfilled in respect of the six specified proposed laws was ineffective. It was effective because, at least in respect of some of the proposed laws, the conditions set out in s. 57 had been fulfilled. It may be, however, that the actual statement that those conditions had been fulfilled in respect of each of the proposed laws will be proved to have been made in error. (at p462)

5. The second paragraph of s. 57 relates to the convening of a joint sitting of the members of the Senate and the House of Representatives. The power given to the Governor-General is simply to convene a joint sitting. It is not for the Governor-General to prescribe what may occur at such sitting and, in my opinion, the members would not be bound by any attempt to do so. It seems to me that there is surplusage in the proclamation made by the Governor-General on 30th July 1974 when in that proclamation it is said that at the joint sittings the members may deliberate and shall vote upon the six identified proposed laws. Section 57, however, operates of its own force and what, upon its proper construction in the context of the Constitution as a whole, it allows a joint sitting to do is the only measure of what may or may not be done at such a sitting. If the conditions for a joint sitting have been fulfilled a proclamation convening such a sitting is not subject to attack because it contains unnecessary matter. In my opinion, members at the joint sitting are not constrained as to what they may or may not do by the proclamation actually made. They may, for instance, if they so wish, deliberate and vote upon only one of the six proposed laws that are mentioned. It is not their duty, merely because the proclamation requires them to do so, to deliberate and vote upon all six, even if the conditions for an effective passing of each at the joint sitting have arisen. (at p463)

6. A particular point was taken in relation to the proposed law intituled Petroleum and Minerals Authority Act 1973. It was contended in respect of this proposed law that the conditions set out in the first paragraph of s. 57 had not been complied with. If so, that proposed law should not have been taken into account by His Excellency the Governor-General, Sir Paul Hasluck, in granting a double dissolution and His Excellency the Governor-General, Sir John Kerr, was in error in proclaiming that the joint sitting may deliberate and shall vote upon it. Counsel for the State of New South Wales indicated that there may be other laws upon which the conditions provided by s. 57 had been compiled with. However, as I have already indicated, that part of the proclamation naming the proposed laws to be deliberated and voted upon was surplusage and it cannot be regarded as any justification in law for the joint sitting deliberating and voting thereon. If such a proposed law is affirmed, and it is the case that the conditions set out in the first part of s. 57 were not fulfilled with respect to it, the question of the validity of that law may become a question for this Court at a later time. If it does, the terms of the proclamation will not be relevant to the decision of that question. It will, in my opinion, be decided upon a determination of what happened in the House of Parliament - an inquiry which, upon a challenge to the validity of a law, this Court is competent to undertake. (at p463)

7. The third paragraph of s. 57 determines what proposed laws may be affirmed at a joint sitting and states the consequence of such affirmation, namely that the proposed law is taken to have been passed by both Houses and shall be presented for assent. If the plaintiff's submission that only one proposed law may be affirmed be correct, it is this last paragraph that justifies it. I find no such limitation in the paragraph itself. The section as a whole refers to any proposed law. The last paragraph assumes that there is a proposed law upon which, by virtue of what has happened, the members of the joint sitting may effectively vote. The paragraph applies distributively to any such proposed law and neither expressly nor by implication does it limit the joint sitting to deliberating and voting upon only one of such proposed laws if there are more than one. (at p464)

8. In this case it is not necessary to go as far as the Attorney-General invited the Court to do and to determine whether, at a duly convened joint sitting, the members may do whatever they chose to do. It may be that the third paragraph of s. 57 should be regarded as limiting proceedings at a joint sitting to dealing with proposed laws in respect of which the conditions set out in the section have been complied with. Upon that I say no more. It is sufficient for me to decide, as I do, that a joint sitting is not precluded from dealing and dealing effectively with any number of proposed laws in respect of which the constitutional conditions have been fulfilled. (at p464)

9. It should be added that it is not for the members of the Senate and the House of Representatives to decide whether or not a proposed law affirmed at a joint sitting has been enacted as a law. If and when the proposed law has been affirmed by the majority required by the section and has been assented to, it is open to challenge in the courts on the ground that it was not duly enacted because of non-compliance with the conditions which s. 57 requires to be fulfilled. Non-compliance with constitutional requirements for the making of laws spells invalidity. (at p464)

10. The importance of the issues involved in the plaintiff's case merits reference to two other matters. The first is whether the plaintiffs have the right to claim the relief that is sought in the action. Their claim to that capacity depends entirely upon the circumstances that they are senators and that if it should be that the proposed laws are affirmed and assented to as provided by s. 57 they would have no right as such to challenge the validity of the laws on the ground that the conditions required by s. 57 had not been fulfilled. I have not been persuaded affirmatively that the plaintiffs have locus standi, but because of my decision on other matters I leave undecided the objection that independently of the merits of the case the plaintiffs have no right to the relief which they claim. (at p464)

11. A more important question is whether the Court can or should make declarations and grant injunctions relating to the proceedings of a joint sitting and in particular whether a declaration should be made that the joint sitting may deliberate and vote upon one but not more than one of the proposed laws. (at p464)

12. It is a firmly established principle that this Court may declare or treat as invalid any law of the Parliament made without the authority of the Constitution. The exercise of this authority assumes the completion of the parliamentary process to turn a bill into an Act. It is no part of the authority of this Court, however, to restrain Parliament from making unconstitutional laws. It is of course convenient to speak of an unconstitutional law but the phrase means merely that the purported law is not a law at all. This Court does not consider in advance whether if Parliament were to pass a particular bill it would result in a valid law. Another aspect of the same matter is that the introduction of a bill does not affect rights; it is the making of a law that does that. Then a person who has the requisite interest may challenge the validity of the law. (at p465)

13. Closely associated with these principles is another principle of great constitutional importance, namely that the Court will not interfere with the proceedings of Parliament or the Houses of Parliament. The validity of the law that follows from what Parliament has done is one thing. The proceedings of Parliament that lead to a valid or an invalid law are another. It is not for this Court to prevent Parliament from doing what, in the opinion of this Court, will result in an invalid law. The Supreme Court of New South Wales in Trethowan v. Peden (1930) 31 SR (NSW) 183 did restrain the presentation for assent of a bill which it decided had not been passed as required by the Constitution of New South Wales. In McDonald v. Cain [1953] VicLawRp 62; (1953) VLR 411 the Supreme Court of Victoria decided it had jurisdiction to declare that it was contrary to law to present a bill if it had not been passed by the majority required by the Victorian Constitution. But these cases are not authority for the proposition that a court can dictate to the members of the House of Parliament what they can or cannot deliberate and vote upon in a parliamentary proceeding. The correct general principle was clearly stated by this Court in Osborne v. The Commonwealth [1911] HCA 19; (1911) 12 CLR 321 and reference may be made to what was said by Griffith C.J. (1911) 12 CLR, at pp 336-337 , by Barton J. (1911) 12 CLR, at pp 351-352, 353-354 , and by O'Connor J. (1911) 12 CLR, at p 355 . (at p465)

14. The same principle was expounded by Dixon C.J. and McTiernan, Taylor and Windeyer JJ. in Clayton v. Heffron [1960] HCA 92; (1960) 105 CLR 214 , and by Dixon C.J. in Hughes & Vale Pty Ltd. v. Gair [1954] HCA 73; (1954) 90 CLR 203 . In Rediffusion (Hong Kong) Ltd. v. Attorney-General (Hong Kong) (1970) AC, at p 1156 , Lord Diplock, speaking for the majority of the Privy Council, referred to what the Chief Justice said in terms which I cannot, with respect, accept as a correct explanation of his Honour's observations. Of course, I do not, in any way, question the decisions of the Privy Council in that case but I think that the privileges of the Parliaments of Australia, although limited constitutionally, accord more closely with those of the House of Commons in he United Kingdom than with the Legislative Council of Hong Kong. Moreover, the Chief Justice was speaking of the relationship between the courts and Parliament in Australia and not upon the discretion of a court to refuse to act because of the existence of an alternative remedy. In my opinion the Court should not depart from the principles first established here in 1911. I would add but one reservation: it is that if by following some particular procedure in the making of a law it were possible to defeat the constitutional power of this Court to deal effectively with legislation when enacted that would give rise to a situation that has not yet been considered and which is unlikely to arise. (at p466)

15. Accordingly, in my opinion the relief claimed should be refused and the question answered "No". (at p466)

GIBBS J. At the very threshold of this case there arise the questions whether this Court can interfere to prevent the holding of a joint sitting of the members of the Senate and of the House of Representatives, or to prevent the members present at a joint sitting from deliberating and voting upon a proposed law, on the ground that the requirements of s. 57 of the Constitution have not been fulfilled and, if so, whether it ought to take that course in the exercise of its jurisdiction. (at p466)

2. I am disposed to think that this Court has jurisdiction to interfere at any stage of the special law-making process permitted by s. 57, in order to prevent a violation of the Constitution and that an assertion of the privileges of Parliament would not deprive the Court of the jurisdiction with which the Constitution invests it. However, although I accept that such a jurisdiction exists, in my opinion it would be wrong to exercise it by granting the relief sought in the present case. (at p466)

3. There can be no doubt that a proposed law, which has been affirmed by an absolute majority of the total members of both Houses of Parliament at a joint sitting, will be invalid and void unless the requirements prescribed by s. 57 have been satisfied. The only power to enact a law at a joint sitting is that given by s. 57. The provisions of that section are not merely directory but attach conditions to the grant of the power and if those conditions have not been fulfilled, the power will not have been validly exercised. Once a proposed law had been affirmed at a joint sitting, this Court would have undoubted jurisdiction to pronounce on its validity and it would be appropriate then to do so. In other words, after the proceedings of the joint sitting had been completed, this Court would have jurisdiction to give, and could conveniently give, an adequate remedy if there had been a breach of the provisions of s. 57, and it is not necessary, in order to prevent a violation of the Constitution, that the Court should interfere in the legislative or administrative processes prescribed by s. 57 before any proposed law has been passed. (at p466)

4. These circumstances are relevant and important in deciding whether the discretionary remedies of declaration and injunction should be granted in a case such as the present. It has been emphatically laid down that the settled practice of this Court is to refuse to grant relief in respect of proceedings within Parliament which may result in the enactment of an invalid law and that the proper time for the Court to intervene is after the completion of the law-making process - Hughes & Vale Pty. Ltd. v. Gair [1954] HCA 73; (1954) 90 CLR 203 ; Clayton v. Heffron (1960) 105 CLR, at p 235 . The same considerations apply where the proceedings which may result in invalidity are taken in purported pursuance of s. 57. It is after the proposed law has been affirmed that the Court should declare it to be invalid, if grounds for such a declaration exist. (at p467)

5. It was said that if the proposed laws were passed the present plaintiffs, in Action No. 128 of 1974, might no longer have an interest sufficient to enable them to challenge their validity and that this was a reason for intervention by the Court at the present stage. In my opinion, if the office held by the plaintiffs as senators gives them a locus standi, their position will be no weaker after than before a joint sitting. But even if that were not so that would not justify the Court in departing from its settled practice and in passing upon the validity of a proposed law before it had been passed. Clearly, any person affected by the operation of any of the proposed laws could challenge its validity and that is enough to show that if the Court does not grant relief now it will have ample power to do so later if the circumstances warrant it. In the present case if there has been a failure to comply with the conditions laid down by s. 57 in relation to any proposed law that law will be void and this Court can so declare. In these circumstances, no reason has been shown for departing from the settled practice of the Court. (at p467)

6. Indeed, it seems to me that the facts of the present case show how undesirable it is to determine important constitutional questions in the way in which the parties have asked us to determine these. The case was rushed before the Court, with little opportunity to consider whether the action is properly constituted as to parties, with no service having been effected on some of the parties before the hearing commenced and with no full and precise statement of the facts having been placed before the Court in relation to that aspect of the matter on which the facts may be vital. (at p467)

7. In my opinion, the Court should, in the exercise of its discretion, refuse to decide at the present stage whether any of the proposed laws would, if passed at a joint sitting, be valid. I would dismiss the motion as premature. (at p467)

8. However, since my brethren consider that it is right to deal with the substantive questions raised, I feel bound to express, very briefly, my own views on some of those questions. (at p467)

9. Although s. 57 is expressed in the singular, in my opinion it operates distributively. If the provisions of the first two paragraphs of the section have been satisfied in relation to any one proposed law the Governor-General may convene a joint sitting at which the members may deliberate and vote upon any one or more proposed laws that answer the requirements laid down in the section. This construction does not require singular words to be read as including the plural, but finds its basis in the words "any proposed law" and in the fact that the section could not achieve its object of resolving deadlocks between the Houses if each proposed law as to which disagreement existed had to be the cause of a separate dissolution and the subject of a special joint sitting at which it alone was the subject of deliberation. (at p468)

10. In my opinion, the Governor-General had no power to direct the members present at the joint sitting upon what proposed laws they may deliberate and should vote, but as at present advised I am of the view that the inclusion of a direction of that kind did not affect the validity of the proclamation assuming it to be otherwise valid. Such a direction was an unnecessary addition to the proclamation and might simply be ignored. (at p468)

11. I would say nothing as to the proposed Petroleum and Minerals Authority Act. The validity of that Act, if it is passed, will depend upon issues of fact which have been insufficiently ventilated before us and ought therefore to be left for determination in subsequent proceedings if that proposed law is affirmed at the joint sitting. (at p468)

STEPHEN J. The facts concerning this application for declarations and injunctions sufficiently appear from the reasons for judgment of the Chief Justice. (at p468)

2. There arise initially questions concerning the parties joined as plaintiffs and defendants. In view of the conclusion at which I have arrived I do not propose to express any concluded views on this point; but I should make it clear that in dealing as I do with the merits of the matter I am not to be taken as affirmatively determining either the plaintiff's proper standing or the propriety of the joinder of the various defendants. (at p468)

3. Section 57 of the Constitution is concerned with deadlocks resulting from the legislative will of the majority of the House of Representatives not being given effect to by the Senate. It acknowledges that ultimately the will of the House is most likely to prevail. (at p468)

4. This is made manifest in two ways; only to laws originating in the House do its provisions apply and the final arbiter which it provides is a joint sitting in which those upholding the views of the majority in the more numerous House will be likely to be able to outvote the opposing voices, including those of the majority in the less numerous Senate. (at p469)

5. Interposed between the deadlock and its ultimate resolution in joint sittings is the double dissolution and a recourse to the popular will as expressed in an election held after the conflict between the Houses has become apparent and is sharply defined. Should that election fail to achieve a like-minded majority in both Houses it nevertheless ensures that those deliberating in the joint sittings will all be elected representatives of an electorate which has had before it the very issues upon which the Houses have disagreed. (at p469)

6. Since s. 57 is concerned with affairs of the legislative arm of government it is necessarily upon proposed laws that the disagreements with which it is concerned will occur. It is no doubt conceivable, although unlikely, that disagreement may be confined to one proposed law; it is quite likely as has happened on the two prior occasions in which part at least of the provisions of s. 57 have been invoked, that the conflicting majorities in each House will confine to the one proposed law the twice repeated process of passage and rejection or failure to pass to which the first paragraph of s. 57 refers. In the present case the process has not been so confined and it is said that the consequence is that when, thereafter, a double dissolution and ensuing election occur, the remainder of the procedure for resolution of deadlocks which s. 57 provides is applicable to one only of the proposed laws about which the conflicting majorities in each House remain in disagreement. As to the others they may only, so it is said, be resolved if at all by repeated recourse to the procedures of the first paragraph of s. 57, in effect a double dissolution for each measure if majorities in each of the Houses, as newly constituted, remain intransigent. In fact the wording of s. 57 would, I think, on this view require that each successive double dissolution be preceded by a passage and rejection, twice over, of the proposed law in question. (at p469)

7. I see nothing in s. 57 that compels the adoption of this interpretation; the section readily lends itself to the contrary view that whenever a situation arises in which one or more proposed laws have twice been proposed and rejected or not passed the stage is set for a double dissolution. One instance of double rejection suffices but if there be more than one it merely means that there is a multiplicity of grounds for a double dissolution, rather than grounds for a multiplicity of double dissolutions. Then, when the ensuing elections have been held, the second paragraph of the section is readily applicable to the passage for a third time of each of such proposed laws as were previously twice rejected and to their consideration at a joint sitting if not then passed by the Senate. (at p469)

8. The operation of s. 57 does, it is true, infringe the generally bicameral character of the legislature and for the time being deprives the Senate, to the extent that it may be said to be represenative of the States, of an effectively distinct voice in the legislative process. This is, on any view of its operation, its effect, an intended effect which arises both from the need to find some solution to deadlocks and from the nature of the solution arrived at, one tending to ensure that the will of the lower House should prevail. (at p470)

9. It is said that the provisions of s. 57, because they are extraordinary, should be given a quite narrow interpretation and that to give them the meaning I have leaves open the way to wholesale impairment of the legislature's bicameral character should the majority in the lower House adopt the expedient of procuring the passage and rejection twice over of a large number of proposed laws, their eventual enactment then being ensured by recourse to a joint sitting. However, the safeguard of an intervening appeal to the electorate exists and once it be accepted, as it must, that the unicameral solution to a deadlock is what the Constitution provides, the possibility of any abuse of s. 57 by the lower House appears to me to be a less real fear than the probability that to accede to the plaintiff's contention will, for all practical purposes, deprive s. 57 of its ability to resolve disputes extending beyond the merits of a single proposed law. Certainly the possibility of what might be regarded as an abuse of s. 57 provides no ground in the circumstances for giving to it an interpretation narrower than its words appear to me to require. (at p470)

10. For these reasons I conclude that to consider and pass upon more thanone proposed law at a joint sitting involves no contravention of s. 57. It follows that there is nothing concerning the two proclamations here in issue which can be regarded as other than giving proper effect to the terms of s. 57. I say nothing as to the point whether there may be legal significance in the relationship between the time at which or the sittings during which the second rejection or failure to pass a measure occurs and the time at which or the sittings during which the double dissolution occurs. (at p470)

11. It is said that the Petroleum and Minerals Authority Bill 1973 was not twice passed by the lower House and rejected or refused passage in the Senate in the manner and at the times specified in s. 57. So far as this involves interpretation of the phrase "after an interval of three months" it seems to me clearly enough that the period begins on the happening of any one of the three events which the section identifies as first giving rise to deadlock. These events are rejection of the measure by the Senate, its failure to pass the measure or the disagreement of the House with the Senate's amendments thereto. As a matter of language the word "after" is apt to refer to that event or series of alternative events which it immediately follows, in this case the three alternative events which manifest an initial state of deadlock. The sense of the section points in a like direction; the section as a whole deals with a coherent sequence of events, each following, in temporal order, the other; thus provision of a period of three months is a no less significant event than others which the section provides for and it takes its place in the sequence as the first event after deadlock has become apparent. 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. In seeking to apply to the section as thus interpreted the meagre evidence now before the Court, it becomes apparent that having regard to the interlocutory nature of this application it is inappropriate to say more than that there appear to be arguable grounds for doubting whether this Bill has passed through the legislative processes contemplated in s. 57. Whether or not this proves to be so may be a matter for another day. It will not affect what has been done and what may hereafter be done in connexion with the other Bills the subject of this action. (at p471)

12. The two relevant proclamations refer to the Petroleum and Minerals Authority Bill by way of recital but this can, in my view, in no event have any vitiating effect. All that s. 57 requires of the Governor-General, all other conditions being satisfied, is that he should first dissolve both Houses simultaneously and should later convene a joint sitting. The grounds upon which he grants such a dissolution may, no doubt, conveniently be recited, as may be his understanding of what is to be business of the joint sitting but these recitals are not called for by the section. It itself prescribes what is to be the business of the joint sitting and the terms of the proclamation cannot affect this one way or another. Accordingly I regard any reference in the proclamations to the Petroleum and Minerals Authority Bill as of no vitiating effect. (at p471)

13. It is said that the making of the proclamations are executive acts and as such are proper subject matter for intervention by this Court whatever may be the position concerning intervention in the legislative processes of Parliament. Since I see nothing in these acts calling for any intervention this question does not arise but I may say that I would regard the acts of the Governor-General, undertaken in pursuance of s. 57, in dissolving both Houses and in convening a joint sitting as different in character from the familiar executive acts of the Governor-General in Council which were said by the plaintiffs to be analogous and which were relied upon in that way as justifying judicial intervention in this instance. Both the acts of dissolving both Houses and that of convening a joint sitting are undertaken not so much in exercise of the executive power vested by s. 61 as in performance of a power conferred by s. 57 upon His Excellency as persona designata and inextricably involved in a legislative process. If, as I think is the case, this Court will not intervene in that process generally so too it will not intervene in the integral steps in that process represented by the making of these two proclamations. Section 57 lays down a complex procedure lying well within the ambit of legislative process and all the reasons which operate to deny to this Court intervention therein apply with equal strength to each of its parts whatever particular label may be sought to be attached to each. (at p472)

14. It follows from what I have said above that I am of the view that this Court does not intervene in matters involving the lawmaking process. As early in its history as 1911 members of this Court expressed such a view - Osborne v. The Commonwealth (1911) 12 CLR, at pp 336,355 - and in Hughes & Vale Pty. Ltd. v. Gair [1954] HCA 73; (1954) 90 CLR 203 and Clayton v. Heffron [1960] HCA 92; (1960) 105 CLR 214 this was affirmed. There may be exceptions to this rule in cases in which, if such cases there be, the product of any irregularity in legislative procedure is other than a statute which is capable of challenge in this Court by those affected by its terms, upon the ground that it is not a true product of the constitutionally appointed legislative process. It suffices to say that this is not such a case; if the past legislative history of the measure now described as the Petroleum and Minerals Authority Bill is ultimately shown not to have involved compliance with s. 57 and yet it is affirmed by the requisite majority at a joint sitting and becomes and Act there will, no doubt, be opportunity for those affected by its terms to attack its validity. (at p472)

15. I may add that in my view this limitation of intervention by the Court depends not upon discretionary but jurisdictional grounds; this emerges, I think, clearly enough from the authorities to which I have referred which do not, with respect, appear to me to be open to the contrary interpretation which appears to have been given to them in Rediffusion (Hong Kong) Ltd. v. Attorney-General (Hong Kong) (1970) AC, at p 1156 , and authority concerned with the very different case of a proposed law which, when enacted, would not be subject to challenge in the Courts. That this was a most powerful factor in their Lordships' decision is apparent from what appears in the report (1970) AC, at p 1157 ; it serves to emphasize the very different position with which we in this Court are concerned. (at p472)

16. It is upon this jurisdictional ground that I would dismiss the plaintiffs' motion for injunctions and declarations and would answer in the negative the question referred to the Court. (at p472)

MASON J. These proceedings raise the question whether the Court should grant interlocutory relief by way of declaration or injunction, in relation to the convening by the Governor-General by proclamation dated 30th July 1974 of a joint sitting of both Houses of the Parliament, pursuant to s. 57 of the Constitution, for the purpose of deliberating and voting upon six proposed laws referred to in an earlier proclamation made by the Governor-General on 11th April 1974 which dissolved both Houses. (at p473)

2. The relief sought by the two senators who are the plaintiffs is designed to prevent the joint sitting from deliberating and voting on the six bills and, alternatively, to prevent the bills from proceeding to the stage of assent in the event that they are passed by a majority at the joint sitting. (at p473)

3. In my view, proceedings at a joint sitting, pursuant to s. 57 are proceedings in Parliament under Ch. 1 of the Constitution. Whether this Court has jurisdiction to intervene in the parliamentary process by granting an injunction or making a declaration, the effect of which would be to prevent the parliamentary sitting convened by the Governor-General from taking place, is a question which I do not find it necessary to decide finally. It is sufficient for me to say that, assuming such a jurisdiction to exist, no case is here made out for its exercise. (at p473)

4. My principal reason for coming to this conclusion is that the grounds upon which the plaintiffs rely in order to invalidate the joint sitting or to limit its deliberations are all grounds upon which the validity of the bills would be open to challenge in the event that they are passed by a majority at the joint sitting and are assented to. (at p473)

5. In Clayton v. Heffron (1960) 105 CLR, at p 235 , it was said in the joint judgment, ". . . the framers of a constitution may make the 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". To the same effect are the observations of the Privy Council in Bribery Commissioner v. Ranasinghe (1965) AC, at pp 197-198 and Rediffusion (Hong Kong) Ltd. v. Attorney-General (Hong Kong) (1970) AC, at pp 1156-1157 . (at p473)

6. It was submitted by the Attorney-General for the Commonwealth that the proclamation of 30th July 1974 is conclusive and not open to attack. If the proclamation is effective to convene a joint sitting of the two Houses, as I happen to think it is, so long as there is at least one proposed law which answers the description contained in s. 57, it does not follow that it has conclusive effect so far as its recitals assert that, in relation to each of the six bills, the provisions of the section have been satisfied. These provisions are conditions upon which s. 57 has entrusted to a joint sitting of both Houses an extraordinary lawmaking power. It is for this Court, at least in proceedings for a declaration of invalidity, once the bills are passed and assented to, to determine whether the conditions have been observed. (at p474)

7. However, intervention in the parliamentary process by the grant of interlocutory relief before a bill is assented to and becomes law, is to be justified, if at all, as an exceptional measure essential to prevent a violation of the Constitution. (See Hughes & Vale Pty. Ltd. v. Gair [1954] HCA 73; (1954) 90 CLR 203 ). As the six bills, if passed at the joint sitting and assented to are open to challenge in properly constituted proceedings seeking a declaration of invalidity on the grounds now argued, I can see no sufficient basis for the Court in this case taking the exceptional step of granting relief by way of intervening in the parliamentary process. (at p474)

8. It is true that the interests of the plaintiffs as senators, even if sufficient to sustain a locus standi to attack the passage of the bills at this stage, may not be sufficient to sustain a challenge to validity once the bills have been carried and assented to. However, this circumstance is not, in my opinion, enough to justify the Court in exercising jurisdiction at this stage, rather than subsequently when the bills come into operation as law.

Although the case has proceeded on an interlocutory basis the construction of s. 57 has been argued at length and I have reached a firm conclusion of one aspect of the argument. (at p474)

9. I would reject the plaintiffs' submission that only one proposed law can be deliberated and voted upon at a joint sitting under s. 57. In this respect I agree with what the Chief Justice has said. I would only add that the provisions of s. 54, and in particular s. 55 of the Constitution, restricting the contents of particular statutes, make it inevitable that a disagreement between the Houses on an important matter of policy will necessarily extend beyond the bounds of a single proposed law. In this setting there is no warrant for holding that a joint sitting should be confirmed in its deliberation to a single proposed law under s. 57. (at p474)

10. The question whether there was a failure by the Senate to pass the Petroleum and Minerals Authority Bill on 13th December 1973 is a serious question which should not be determined on an interlocutory basis; nor do I propose to express any opinion as to the other substantive questions which have been argued, the locus standi of the plaintiffs and the sufficiency of the defendants as parties in proceedings of this kind. (at p474)

11. In the result I would dismiss the motion and I would answer the question asked by stating that the Court should not grant the interlocutory relief sought. (at p475)

Questions referred to the Full Court answered in the negative.

BARWICK C.J. In my opinion, the State of Queensland has no sufficient interest to maintain this suit and in any case I would not grant an injunction or make any declaration because undoubtedly the State of Queensland would have an interest to attack the proposed law of which it complains, the Petroleum and Minerals Authority Act 1973, if the joint sitting should affirm that proposed law and it should receive the Royal assent. (at p475)

2. For those reasons, I would dismiss the motion and answer the question in the negative. (at p475)

MCTIERNAN J. I am of the same opinion as the Chief Justice on the question of the interest of the plaintiff to bring this suit. (at p475)

2. I take the view that the proposed law intituled Petroleum and Minerals Authority Act 1973 is in the same position in regard to s. 57 as each of the other five proposed laws. (at p475)

3. I would therefore refuse this motion. (at p475)

MENZIES J. In my opinion, the State of Queensland has no locus standi to maintain an action for the relief now claimed. Furthermore, for the reasons given in Cormack v. Cope [1974] HCA 28; (1974) 131 CLR 432 at pp 461-466 , it has made out no case for the relief sought. (at p475)

GIBBS J. For reasons which are in substance the same as those which I gave in the case of Cormack v. Cope [1974] HCA 28; (1974) 131 CLR 432 at pp 466-468 , I would agree that the present motion should be dismissed. (at p475)

2. I would only add that one question which arose in the former case, that is, the doubt as to the question whether the plaintiffs would have an interest to challenge the legislation. if it were passed, has no application to the present case where it would seem that the State of Queensland would clearly have such an interest. (at p475)

STEPHEN J. In my opinion, the State of Queensland has no sufficient interest to entitle it to the relief which it seeks. (at p476)

2. As to other issues which arise it suffices that I refer to my reasons expressed in the preceding case [1974] HCA 28; (1974) 131 CLR 432 at pp 468-472 ; I would dismiss the motion and answer the question stated in the negative. (at p476)

MASON J. For the reasons I gave in Cormack v. Cope [1974] HCA 28; (1974) 131 CLR 432 at pp 473-475 , I would dismiss this motion. (at p476)

Question referred to the Full Court answered in the negative.

Minerals Authority Act 1973

Acts Interpretation Act 1901

Cormack v Cope

At a glance

Court

Decision date

Source

Judgment (147 paragraphs)

Cormack v Cope ("Joint Sittings case") [1974] HCA 28; (1974) 131 CLR 432 (5 August 1974)

Parties

Legislation Cited (3)

Cases Cited (5)