57. 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 Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen's assent.
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Those words "the Senate rejects or fails to pass it" sparked one of the most horrible constitutional crises that this country has ever seen. Or rather, it did not.
The Australian Constitution was passed some 11 years before the giant fight between the House of Lords and the House of Commons in Britain; before they eventually decided on the Parliament Act 1911 which limited the House of Lords from blocking Appropriation Bills. Admittedly, this would eventually meet a similar kind of fate in 1975, with the events which preceded the 11th Nov 1975 Constitutional Crisis but it it worth remembering that that was a political failure; not a Constitutional failure. The Senate always had the power to block legislation, including money bills, and 1975 was actually more about the Appropriation Bills for 1975 never being heard and not passing, rather than directly being rejected and not passing.
In the normal course of events, the House or Senate introduce legislation, it gets read and argued about three times, then handed to the other house and read and argued about another three times, before being handed to the Governor-General who in theory reads it and then decides to sign it into law or withhold assent for it to become law. I can think of no occasion really, with the Governor-General has withheld assent for a bill to be made into law because ever since that head-chopping incident when the Puritans indicted Charles I for tyranny, the monarch/representative has been extremely reluctant to overstep the authority of the elected executive government. Arguably the Governor-General probably should have at least showed some quanta of resistance to the former Prime Minister Scott Morrison when he demanded to be made the Minister for a bunch of Departments but this can be saved for another time.
In the event that one faction of MPs either in formal or informal blocs, decides that it does not want to allow passage of legislation, then a bill from either house, may be introduced and then never ever leave the process.
However, the normal operation of the government and government services, requires the appropriation of monies drawn upon the treasury of the Commonwealth. That is, the most basic function of the parliament is to pass the Budget bills. That is, the parliament needs to pass the Budget bills so that the government as a whole can continue to pay its monetary bills. I've got bills, I've got to pay; so I'm going to work, work, work, every day... and so should parliament.
In the event of parliament not working, then Section 57 is the mechanism by which the dispute is resolved.
If the Senate fails to pass legislation, then the government of the day will then hold what is colloquially named an "double dissolution trigger". As Section 57 says, if the House can not get legislation passed by the Senate, someone from the House can ask the Governor-General to dissolve the parliament so than an election can be held and a joint sitting of both houses held; with a majority of all of the members together being taken as approval of the whole parliament.
This is what makes the timeline of events on the 11th of November 1975 so interesting. Many books have been written about this and so I shall not cover the actual timeline of the day but the reason why any of that mess happened at all was that the Senate would not pass the Appropriation Bills for 1975.
This saga contains Saudi business people in the "Loans Affair", probably the CIA, MI6, KFC, IPA, a Liberal Party Senator from Queensland being appointed after the previous Senator was a member of the Labor Party, a weekend in October in which with the Governor-General John Kerr stayed on Rupert Murdoch's estate; so the whole thing looks very very nasty.
The thing at the core of the events on the 11th of November 1975 is that the Federal Budget had been handed down on 19th August 1975 and so the provisions of Section 57 that:
- If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it,
- 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
- the Governor-General may dissolve the Senate and the House of Representatives simultaneously.
Section 57 basically says that from the presentation of a Bill, the House has 3 months to pass a piece of legislation. What that should have meant was that the Appropriation Bills for 1975/6 still had about a fortnight before it actually triggered this.
What happened in the background was that Rupert Murdoch met with the Governor-General John Kerr and did some wrangling, then Kerr made annoucements for dissolving the Senate and the House of Representatives simultaneously, sacked the Prime Minister and replaced him with someone else (see Section 64) and calling for a new election.
The really curious thing is the set of tactics that the Senate took in failing to pass the Appropriation Bills for 1975. Rather that just straight up rejecting the Bills, they would frequently stall for time, dither when it came to Senate business, and simply just not show up to the floor of the chamber and thus fail to form a quorum. Hansard for the Senate for 1975 is a glorious riot of political knavery, wrapped in legal frivolity.
The other thing of note about how Westminster parliaments work generally, is that new Acts of Parliament replace old ones; so in theory, it might have been possible that the Appropriation Bills for 1974 may have just stood in a kind of perpetuity until presumably the normal 1977 election would have happened. The regular stupidities of the United States Congress which keeps on resulting in government shutdowns, simply does not happen here for that reason.
Double Dissolution Elections which happen as the result of operation of Section 57 are generally uncommon but not so uncommon as to be unheard of. In 2016, the Turnbull Government probably deliberately tried to pass legislation which would set up the Australian Building and Construction Commission. The bill which in that form was little more than about trying to smash union power, was naturally going to be blocked by the Labor Party in the Senate. That bill wass blocked three times; handing Mr Turnbull a double dissolution trigger and we then went to the 2016 election, where all 226 seats in both houses were up for grabs.
Parties in Opposition generally do not like handing Governments election triggers. Politics is the game which overlays the mechanisms of parliament and the Constitution. The Constitution was written before the solidification of national political parties and so in principle, does not care for their existence one way for the other. There is also no office of the Prime Minister stated within the Constitution, or even if there needs to be one.
Section 57 is then, the written set of instructions as to what happens when the two houses are in so much deadlock that nothing gets done, under normal circumstances.
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