Victoria v Commonwealth [1975] HCA 39 | Case summary

Victoria v Commonwealth [1975] HCA 39 | Case summary | Zoe

[55]

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)

[117]

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)

[131]

"Lawyers speak of statutory provisions as imperative

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."

[150]

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)

[151]

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)

[159]

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)

[162]

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) [1974] HCA 28; 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)

[163]

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)

[170]

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)

[172]

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)

[173]

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)

[178]

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 :

[192]

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)

[282]

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)

[289]

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)

[291]

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)

[292]

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)

Victoria v Commonwealth [1975] HCA 39;

At a glance

Court

Decision date

Source

Judgment (301 paragraphs)

Victoria v Commonwealth [1975] HCA 39; (1975) 134 CLR 81 (30 September 1975)

Parties

Legislation Cited (7)

Cases Cited (14)