Commonwealth

Parliament
Topic 10 Glenn Dennett
Federal System of Government
• The Commonwealth of Australia - Federal system of
government
• Other Federal Systems of government include: USA,
Canada and Switzerland
• The Commonwealth of Australia is made up of the
Commonwealth government, 6 State governments and 2
Territory governments
• Within the Commonwealth government are 3 arms
• The Commonwealth Parliament, the Judiciary and the
Executive
• Each arm of the Commonwealth government is defined
by the Commonwealth Constitution
Commonwealth Constitution
• An Imperial Act
• An Act to constitute the Commonwealth of
Australia 9th July 1900
• 63 & 64 Victoria, Chapter 12
• Short title: Commonwealth of Australia
Constitution Act
• Took effect on 1 January 1901
Table of Provisions
• Preamble: The Constitution

• Chapter I. The Parliament (s. 1 to 60)

• Part I - General (s. 1 to 6)
• Part II - The Senate (s. 7 to 23)
• Part III - The House of Representatives (s. 24 to 40)
• Part IV - Both Houses of the Parliament (s. 41 to 50)
• Part V - Powers of the Parliament (s. 51 to 60)

• Chapter II. The Executive Government (s. 61 to 70)

• Chapter III. The Judicature (s. 71 to 80)

• Chapter IV. Finance and Trade (s. 81 to 105A)

• Chapter V. The States (s. 106 to 120)
• Chapter VI. New States (s. 121 to 124)
• Chapter VII. Miscellaneous (s. 125 to 127)
• Chapter VIII. Alteration of the Constitution (s. 128)
• The Schedule
Source: Australian Parliament House website
Vesting of Legislature Power

S 1 - The legislative power of the

Commonwealth shall be vested in a Federal
Parliament, which shall consist of the
Queen, a Senate, and a House of
Representatives, and which is herein-after
called "The Parliament," or "The Parliament
of the Commonwealth."
Three Elements to the
Commonwealth Parliament
• Queen/Governor-General
• Senate/Upper House
• House of Representatives/Lower
House
The Queen/Governor-General
s2. A Governor-General appointed by the
Queen shall be Her Majesty's
representative in the Commonwealth, and
shall have and may exercise in the
Commonwealth during the Queen's
pleasure, but subject to this Constitution,
such powers and functions of the Queen as
Her Majesty may be pleased to assign to
him.
Express powers of the
Governor-General
• S5: the power to summon, prorogue and dissolve
Parliament;
• S56: the power to recommend the passage of money bills;
• S57: the power to dissolve both houses of Parliament in a
deadlock;
• S58: the power to assent to legislation; and
• S61: the executive power of the Commonwealth is vested
in the Queen, and is exercisable by the Governor –
General.
• S64: The Governor- General appoints Ministers
• S68: Commander in Chief of the military forces
• S72: appoints judges of federal courts
Limits on the power of the
Governor-General
• s2: “subject to this Constitution”
• Constitutional monarchy
• Responsible government
• the Queen (and her delegate) do not exercise their
powers without ministerial advice
• Model Parliament of 1295 – Edward 1
• Ministers are in turn responsible to Parliament for
their advice and the functioning of the departments
they supervise.
• Bill of Rights 1689
The Power of Royal Assent
58. When a proposed law passed by both Houses
of the Parliament is presented to the Governor-
General for the Queen's assent, he shall declare,
according to his discretion, but subject to this
Constitution, that he assents in the Queen's
name, or that he withholds assent, or that he
reserves the law for the Queen's pleasure. The
Governor-General may return to the house in
which it originated any proposed law so
presented to him, and may transmit therewith
any amendments which he may recommend,
and the Houses may deal with the
recommendation.
The Power of Royal Assent
• Despite the discretion contained in s 58, assent
has become an automatic, inevitable response.
• Intended to be a failsafe measure to pick up
mistakes
Discretionary powers of G-G
• Prerogative or reserve powers
• ss 61 (broad executive power) and 51(xxxix)
• Includes:
• power to appoint a Prime Minister in a hung
Parliament
• power to dismiss a Prime Minister where the House of
Representatives has passed a motion of “no
confidence” in the Prime Minister; and
• The power to refuse to dissolve the House of
Representatives contrary to Ministerial advice.
• The power to ensure that the government is acting
legally
Discretionary powers of G-G
• Might also include:
• power to refuse a double dissolution
• withhold assent to bills
• D]dismiss a Prime Minister where the House cannot
guarantee supply of money bills
The Senate
s7. The Senate shall be composed of senators for each
State, directly chosen by the people of the State, voting,
… as one electorate.
…
Until the Parliament otherwise provides there shall be
six senators for each Original State. The Parliament may
make laws increasing or diminishing the number of
senators for each State, but so that equal representation
of the several Original States shall be maintained and
that no Original State shall have less than six senators.
The senators shall be chosen for a term of six years,…
The Senate - Composition
• Represents the States
• Elected from the States they serve (proportional
representation)
• Equal number of representatives in each state
regardless of the population of the state
• Originally 6 members per state – now 12
• Now 2 Senators for each territory
• Senator’s term – 6 years
Victoria v The Commonwealth (the AAP
Case) (1975) 134 CLR 81 (at 121 –2) per Barwick CJ
“It is evident from the terms of the Constitution that the Senate was
intended to represent the States, parts of the Commonwealth, as
distinct from the House of Representatives which represents the
electors throughout Australia. It is often said that the Senate has, in
this respect, failed its purpose. This may be so, due partly to the
party system and to the nature of the electoral system; but even if
that assertion be true it does not detract from the constitutional
position that it was intended that proposed laws could be considered
by the Senate from a different point of view from that which the
House of Representatives may have taken. The Senate is not a mere
house of review; rather it is a house which may examine a proposed
law from a standpoint different from that which the House of
Representatives may take.”
The Senate - Term of office
• s13: 6 year terms
• Continuous body
• only half of the Senate is elected every 3
years
• When there is a double dissolution – half are
elected for 3 years and the other half
elected for 6 years
• Term commences 1 July following election
• Territorial Senators - 3 year terms
Territorial Senators
• Territorial Senators in a States House?
• s122. The Parliament may make laws for
the government of any territory … and may
allow the representation of such territory
in either House of the Parliament to the
extent and on the terms which it thinks fit.
Territorial Senators
• Territorial observers in the Senate from 1922
• Observers given voting rights in the 1960’s
• 1973 – Whitlam government introduced the
Senate (Representation of Territories) Bill
into Parliament
• 1974 – Double Dissolution – then passed in
a Joint Sitting of Parliament
• 2 Senators for each Territory for a term of 3
years
First Territorial Senators Case
• The validity of the Senate (Representation of
Territories) Act 1973 (Cth) was challenged in:
• Western Australia v Commonwealth (1975) 134
CLR 201
• Section 7 of the Constitution was primary power
and section 122 was subordinate
• Mason, McTiernan, Jacobs and Murphy JJ –
legislation valid
• Barwick CJ, Gibbs and Stephen JJ - invalid
Second Territorial Senators
Case
• Queensland v Commonwealth (1977) 139 CLR
585
• High Court upheld the validity of the Act - 5:2
• Gibbs CJ and Stephen J – aligned with the
majority (Mason, Jacobs and Murphy JJ ) since
they felt the First Territorial Senators case stood
as the precedent in the case
The House of Representatives
s.24. The House of Representatives shall be composed of
members directly chosen by the people of the Commonwealth,
and the number of such members shall be, as nearly as
practicable, twice the number of senators. The number of
members chosen in the several States shall be in proportion to
the respective members of their people, and shall, until the
Parliament otherwise provides, be determined, whenever
necessary, in the following manner:
(i.) A quota shall be ascertained by dividing the number of the
people of the Commonwealth, as shown by the latest statistics of
the Commonwealth, by twice the number of senators:
(ii.) The number of members to be chosen in each State shall
be determined by dividing the number of people of the State, as
shown by the latest statistics of the Commonwealth, by the
quota; …But notwithstanding anything in this section, five
members at least shall be chosen in each Original State.
The House of Representatives -
Composition
• The people’s house
• Its members are roughly twice the members of
the Senate – 144
• The number of members shall be in proportion
of the number of people in the State (ie.
different to the Senate)
• Divide 24 million people by 144 seats – gives you the
number of people per electorate
• Must have at least 5 members in any one state
• Electorates must fall within state borders
• Member’s term – 3 years
Disqualification - Section 44
• (1) – is under any acknowledgment of allegiance, obedience,
or adherence to a foreign power, or is a subject or a citizen or
entitled to the rights or privileges of a subject or a citizen of a
foreign power
• Sykes v Cleary (1992) 176 CLR 77
• ALP Candidate – Bill Kardamitsis (born in Greece)
• LNP Candidate – John Delacretaz (born in Switzerland)
• Independent – Phil Cleary
• Sue v Hill (1999) 199 CLR 462
• Heather Hill – elected in 1998 (born in the UK)
• UK was a foreign power since at least 1986 Australia Acts
Legislative Powers of the
Parliament
• s51“The Parliament shall, subject to this Constitution, have
power to make laws for the peace, order, and good
government of the Commonwealth with respect to …”
• There is no general grant of power:
• Cth has 39 ‘enumerated powers’
• States retain the ‘residual powers’
• The Commonwealth’s powers may be
• Exclusive
• Concurrent (ie. held with the States)
• All powers are ‘subject to the Constitution’
• Section 51 powers must conform to s92 that requires trade
between the States to be free
Powers with respect to Money
Bills
• Section 53 –
• Money Bills are bills:
• relating to the expenditure on Commonwealth public service and/or
Commonwealth projects;
• for the raising of money - taxation
• Money bills must originate in the House of Representatives
• The Senate cannot amend these bills if they are for the ordinary
services of the government’ or for ‘taxation’
• The Senate can reject these bills or send them back to the House with
recommendations – indefinitely
• Section 54 and 55
• Anti-tacking provisions
• The powers in Section 53 are different to those in NSW Parliament –
section 5A of the NSW Constitution takes away the power to reject
money bills from the Legislative Council
State/Federal powers –
Chapter 5
s106. The Constitution of each State of the Commonwealth shall,
subject to this Constitution, continue as at the establishment of
the Commonwealth, … until altered in accordance with the
Constitution of the State

s107. Every power of the Parliament of a Colony which has

become or becomes a State, shall, unless it is by this
Constitution exclusively vested in the Parliament of the
Commonwealth or withdrawn from the Parliament of the State,
continue as at the establishment of the Commonwealth, …

• In other words – the undefined remainder of power (the

residual) remains with the States.
Exclusive powers of the
Commonwealth
• Legislative powers are made exclusive to the
Commonwealth in 3 ways
• By express means in the Constitution
• By withdrawing the power from the States
• By their very nature some powers have to be exclusive
to a national parliament
Exclusive powers – by Express
Grant:
• s52- power to regulate federal property and
public service;
• s90 –power to make laws imposing duties of
customs and excise and granting bounties;
• ss111,112 –power to make laws with respect to
Commonwealth territories.
Exclusive Powers - Withdrawn
from States
• s115 – Federal power with respect to coinage
• s114 – Federal power to raise and maintain
military forces for the defence of the
Commonwealth
Exclusive Powers - by their
nature are exclusive
• s51(iv) – borrowing money
• s51(xix) – naturalisation
• s51(xxiv) – service and execution of process
• s51(xxv) – recognition of State laws and records
• s51(xxx) – relations with Pacific islands
• s51(xxxii) – control of railways for defence purposes
• s51(xxxiii) – acquisition of State railways
• s51(xxxviii) – exercise of Imperial power
• s51(xxxix) – incidental power
Concurrent powers

• 51(i) – trade and commerce

• 51(ii) – taxation, apart from customs and excise
• 51(vi) – defence
• 51(vii) – lighthouses
• 51(viii) – Astronomical and meteorological
observations
• 51(ix) - Quarantine
Concurrent powers:
• 51(x) – Fisheries
• 51(xi) – census and statistics
• 51(xiii) – banking
• 51(xiv) – insurance
• 51(xv) – weights and measures
• 51(xvi) – Bills of exchange
• 51(xvii) – Bankruptcy
• 51(xviii) – Copyright etc
Concurrent powers:
• 51(xix) – aliens
• 51(xx) – corporations
• 51(xxi) – marriage
• 51(xxii) – divorce and matrimonial causes
• 51(xxiii) – pensions etc
• 51(xxviii) – influx of criminals
• etc
Residual State powers
• Everything not mentioned in the Cth
Constitution is in the residual power of the
States.
• This includes
• Agriculture
• Courts
• Factories and shops
• Health
• Land
Residual State powers:
• Mining
• Municipal institutions
• Police
• Prisons
• Education
• Trade and commerce within a State
• etc
State/Federal Powers

Residual State Power

Exclusive
Federal Concurrent
Power Powers
Inconsistent State/Federal laws
s109. When a law of a State is inconsistent with a
law of the Commonwealth, the latter shall
prevail, and the former shall, to the extent of the
inconsistency, be invalid.
Inconsistency
• What is meant by inconsistency?
• Inconsistency may be:
• Direct
• both laws can’t be obeyed; or
• One law takes away a right or privilege
conferred by the other.
• Indirect
• Commonwealth has ‘covered the field’
 ‘Cover the field’
• Clyde Engineering v Cowburn (1926) 37 CLR
466
• Direct inconsistency, and covered the field
• Viskauskas v Niland (1982) 153 CLR 280
• No direct inconsistency, covered the field
• University of Wollongong v Metwally (1984)
158 CLR 447
• Indirect inconsistency can be cured, but not
retrospectively
Viskauskas v Niland (1982) 153
CLR 280
• George and Stella Viskauskas (and others) refused to
serve someone at a bar in their hotel in Kempsey on the
basis of their race
• Mr and Mrs Viskauskas sought an injunction restraining
Carmel Niland (NSW Anti-Discrimination Act counsellor)
from investigating a complaint
• Their argument was Ms Niland couldn’t conduct her
investigation under Part II of the Anti-Discrimination Act
1977 (NSW) because it was inconsistent with the Racial
Discrimination Act 1975 (Cth)
Viskauskas v Niland
• High Court found:
• No direct consistency – can comply with both laws
• One Parliament ‘evinces and intention to cover the field
in terms of the situations to be covered by operation of
the Act’.
• Cth Parliament was trying to fulfil its obligations under
the UN Convention for the Elimination of all forms of
Racial Discrimination
• An intention to ‘cover the field’ was clear in order to
give effect to the Convention
• Note – Cth was using its external affairs power under
s51 (xxix)
Viskauskas v Niland
“There is no direct inconsistency between the
Commonwealth Act and the NSW Act – it is obviously
possible for a person to obey both laws by refraining
from committing any act of racial discrimination.
However, it is now clearly established that there may
be inconsistency within s109 although it is possible to
obey both the State law and the Commonwealth law.
In Clyde Engineering Co. Ltd v Cowburn, Isaacs J said
that “if a competent legislature expressly or impliedly
evinces its intention to cover the whole field that is a
conclusive test of inconsistency where another
legislature assumes to enter to any extent upon the
same field.”
Viskauskas v Niland
“The Commonwealth Parliament has chosen the
course of itself legislating to prohibit racial
discrimination, and having done so it can only fulfil
the obligation cast upon it by the Convention if its
enactment operates equally and without
discrimination in all the States of the
Commonwealth. It could not …admit the possibility
that a State law might …detract from the efficacy of
the Commonwealth law. The subject matter of the
Commonwealth Act suggests that it is intended to be
exhaustive and exclusive…”(291)
Post - Viskauskas v Niland
• The Commonwealth Parliament passed the
Racial Discrimination Amendment Act 1983(Cth)
• S6A – the Act was not intended to exclude the States
from this area of law making – and never had been
intended to do so
• In other words – the Commonwealth was attempting
to give retrospective operation to its amendment Act.
University of Wollongong v
Metwally (1984) 158 CLR 447
• Mr Metwally – an Egyptian post-graduate engineering student
• Enrolled in May 1978 but the University terminated his enrolment
in September 1981
• Metwally alleges racial discrimination
• He brought a complaint to the NSW Anti-Discrimination Board in
February 1982 – and the complaint was heard in November 1983
• The complaint was upheld and the University was ordered to pay
$46,500
• The University appealed based on s109 and High Court judgment
in Viskauskas v Niland – handed down in May 1983
• The High Court – 4:3 – The s109 conflict could not be cured
retrospectively
• Section 109 made the State law invalid – not the Commonwealth
Parliament law. The Cth Parliament can’t override the operation of
s109
University of Wollongong v
Metwally
“Parliament cannot exclude the operation of s109 by
providing that the intention of the Parliament shall be
deemed to have been different from what it actually was
and that what was in truth an inconsistency shall be
deemed to have not existed.” per Gibbs CJ at [457]
University of Wollongong v
Metwally
• “Where the condition governing s109 is in truth
satisfied, it is not within the power of the Parliament
to deem it not to be satisfied. The Parliament can
remove an inconsistency but it cannot deem an
inconsistency to be removed” per Brennan J at [474]
• ‘The Commonwealth Parliament, being subordinate
to the Constitution, could not, by its 1983 Amending
Act, reverse the past operation of s109 of the
Constitution which had rendered invalid or
inoperative the relevant provisions of the NSW Act’
Deane J at [479]
University of Wollongong v
Metwally
• The effect of the High Court’s decision was that at the
time of Mr Metwally’s complaint (Nov 1982) – Part 11 of
the NSW Anti-Discrimination Act was ‘inoperable’ due to
inconsistency with the Cth Racial Discrimination Act
• If Mr Metwally had brought is complaint after the
amendment of the Cth Racial Discrimination Act (June
1983) – his complaint under the NSW Anti-Discrimination
Act would have been lawful because there was now no
inconsistency
• Inconsistency under s 109 doesn’t mean the State law in
void – it just means it is ‘inoperable’ (Gibbs CJ) or
‘sterilized’ (Deane)
Growth of Commonwealth Power
• Constitutional means:
• S128 – Amendment of the Constitution
• S51(xxxvii) – Referral schemes – Corporations Law
• Co-operation with the States:
• COAG process
• Application schemes – Competition and Consumer Law
• High Court:
• The Engineer’s case principle
• S96 – Tied Grants
• S109 – ‘Cover the field doctrine’
• S51(xxix) – External Affairs Power
Reserved Power and Inter-
Governmental Immunity
• High Court is responsible for interpreting the
Constitution – and the legislative powers conferred by
the Constitution.
• Prior to 1920’s High Court developed the doctrines of
‘reserved powers’ and ‘inter-governmental immunity’.
• The High Court interpreted the powers of the
Commonwealth narrowly so as not to limit the powers
of the States (s107). If there was any doubt, the High
Court would err on the side of the States.
• The States should not burden the Commonwealth’s
interests and the Commonwealth should not burden
the State’s interests – eg. States should not impose
State income taxes on Commonwealth employees
The Engineers Case
• The Amalgamated Society of Engineers v Adelaide
Steamship Co (1920) 28 CLR 129
• The doctrine of inter-governmental immunity was
abandoned in the Engineers case
• The Engineers doctrine promotes the Commonwealth
interests over the states
• The approach is to interpret the Commonwealth’s powers ‘as
complete as its words in their natural meaning
indicate’[144]
• Commonwealth powers to be read fully, and not read down
to protect interests of States – and not to read down in order
to preserve the supposed immunity of States’ interests
Tied grants

s96. During a period of ten years after the

establishment of the Commonwealth and
thereafter until the Parliament otherwise
provides, the Parliament may grant financial
assistance to any State on such terms and
conditions as the Parliament thinks fit.
Section 96 - Background
• During the first 10 years of the Commonwealth, the Cth
government was obliged to return ¾ of its customs and excise
revenue to the States.
• Once this obligation was over, the Cth started to use s96 to
make specific grants to the States for specific purposes
• This power gave considerable power to the Cth – because it
started to impose conditions or ‘terms’ on areas that were not
within its realm of powers under the Constitution.
• This use of power was first challenged in Victoria v The
Commonwealth (1926) 38 CLR 399
The Federal Roads Case
• Victoria v The Commonwealth (1926) 38
CLR 399
• Federal Aid Roads Act 1926 (Cth)
• Cth Parliament could use s96 to pass this law
even though it had no specific power for road
building
The DOGS Case
• Attorney-General (Vic) ex rel. Black v The
Commonwealth (1981) 146 CLR 559
• Defence of Government Schools (DOGS) – opposed the
funding of non-government schools
• The Howard Commonwealth government used tied
grants to fund non-government schools (ie. private and
religious schools)
• Two grounds for challenge
• Section 116 – not make laws for the establishment of any religion
or imposing any religious observance
• Section 96 – these monies were not given to assist the States but
given to States for particular purposes and even given direct to
particular schools
 The School Chaplain’s Case
• Williams v Commonwealth (2012) 248 CLR 156
• This was not a s96 case – but more a challenge to the Cth
government’s general executive powers under s61 to enter
into agreements for the provision of services – ie. the
provision of chaplaincy services
• Mr Williams challenged this services on the basis that they
infringed s116
• The majority of the High Court found that these
agreements were not in contravention of s116 but were
beyond the scope of s61
• With respect to s 96, the following passage from the
reasons of Barwick CJ in the AAP Case is in point:
The AAP Case
"Section 96 ... has enabled the Commonwealth to intrude in
point of policy and perhaps of administration into areas
outside Commonwealth legislative competence. No doubt, in
a real sense, the basis on which grants to the claimant States
have been quantified by the Grants Commission has further
expanded the effect of the use of s 96. But a grant under s 96
with its attached conditions cannot be forced upon a State:
the State must accept it with its conditions. Thus, although in
point of economic fact, a State on occasions may have little
option, these intrusions by the Commonwealth into areas of
State power which action under s 96 enables, wear
consensual aspect.” Barwick CJ
External Affairs power
s51.The Parliament shall, subject to this
Constitution, have power to make laws for
the peace, order, and good government of
the Commonwealth with respect to: -
(xxix.) External Affairs:
External Affairs power
• This power has been given a very broad interpretation by the High
Court
• It allows the Commonwealth Parliament to make laws on matters
external to Australia but also in areas that would otherwise be
reserved for the States provided that they are the subject of valid
international treaty obligations
• Early cases brought to the High Court were limited to
• Laws involving relations with other countries – R v Sharkey (1949) 79
CLR 283
• Laws involving territories physically external to Australia such as
fisheries and the continental shelf – The Commonwealth Seas and
Submerged Lands Act case (1975) 135 CLR 337
• In the 1980’s a series of cases came to the High Court involving
international conventions the subject matter of which was not
within the scope of section 51 of the Constitution
Koowarta v Bjelke Peterson
(1982) 153 CLR 169
• Involved the validity of the Racial Discrimination Act 1975
(Cth)
• The High Court upheld the validity of the relevant provisions
of the Act
• The Court was split 3:3:1
• Stephen J agreed with the majority that the power in s51(xxix)
extends to bona fide international treaties but the subject
matter of the treaty had to be of ‘international concern’
The Tasmanian Dam case
• The Commonwealth v Tasmania (1983)158 CLR1
• 4:3 decision (Stephen J had retired from the court) upholding
the validity of the Commonwealth Act
• Mason, Murphy, Brennan and Deane JJ: Commonwealth could
give effect to any international treaty obligation imposed by a
bona fide international agreement or by customary law on any
subject.
• It was not necessary for the subject matter to be of
‘international concern’
• The minority – Gibbs CJ, Wilson and Dawson JJ – found that
the subject matter had to involve ‘international concern’ – and
did not think heritage protection was a matter of international
concern (like the eradication of racial discrimination)
The Tasmanian Dams case
• Involved legislation to bring into effect the provisions of the
Convention for the protection of World Cultural and Natural
Heritage 1972 - Australia had ratified this in 1974
• World Heritage List under the Convention and the Cth had
nominated 3 parks in SW Tasmania
• The Tasmanian government wanted to build hydro electric
schemes in these parks – involving the Franklin river
• The Cth Parliament passed the World Heritage Properties
Conservation Act 1983 (Cth)- and made regulations making it
unlawful to build the dam
• The Cth began proceedings in the High Court seeking a
declaration that the construction of the dam was unlawful so the
Tasmanian government challenged the validity of the legislation
Deane J at 805:
“Circumstances could well exist in which a law
which procured or ensured observance within
Australia of the spirit of a treaty or compliance
with an international recommendation or pursuit
of an international objective would properly be
characterised as a law with respect to external
affairs, notwithstanding the absence of any
potential breach of defined international
obligations or of the letter of international law”
Amendment of the Constitution – s128

s128. This Constitution shall not be altered except in the

following manner:--
The proposed law for the alteration thereof must be passed
by an absolute majority of each House of the Parliament,
and not less than two nor more than six months after … the
proposed law shall be submitted in each State and Territory
to the electors….
When a proposed law is submitted to the electors the vote
shall be taken in such manner as the Parliament
prescribes….
And if in a majority of the States a majority of the electors
voting approve the proposed law, and if a majority of all the
electors voting also approve the proposed law, it shall be
presented to the Governor-General for the Queen's
assent….
Amendment of the Constitution
• A very difficult process
• Only 8 of the 42 proposal to amend have
succeed
Relations between the Houses
– resolving conflict and
deadlocks
• Conflict between Houses is implicit in any bi-cameral
system
• Deadlock procedures exist to deal with intractable
conflict
• ss5A and 5B in the NSW Constitution Act 1902 (NSW)
ensure in NSW that Legislative Assembly is dominant.
• s57 in the Commonwealth Constitution provides for
different Federal procedures
S 57 – Deadlock Provisions
1.The House of Representatives passes a proposed law.
2. The Senate (a) rejects or (b) fails to pass the proposed law or
(c) passes it with amendments to which the Representatives will
not agree.
3. There is an interval of three months.
4. The House of Representatives, in the same or the next
session, again passes the proposed law, with or without any
Senate amendments.
5. The Senate again rejects or fails to pass the proposed law, or
passes it with amendments to which the House of
Representatives will not agree
6. The Governor-General simultaneously dissolves the Senate
and the House of Representatives.
S 57 – Deadlock Provision
7. A general election for both houses takes place.
8. The newly-elected House of Representatives passes the proposed
law, with or without any Senate amendments.
9. The newly-elected Senate rejects or fails to pass the proposed law,
or passes it with amendments to which the House of Representatives
will not agree.
10. The Governor-General convenes a joint sitting of the two houses.
11. The members of the Senate and the House of Representatives at
the joint sitting deliberate and vote together on the proposed law as
last proposed by the Representatives, and any amendments; if the
proposed law with amendments is affirmed by an absolute majority of
the total membership, it is taken to have been duly passed by both
houses.
12. The proposed law is then presented to the Governor-General for
assent.
S 57 Deadlock Provision
• The design of section 57 doesn’t give the House of
Representatives complete power over the Senate even in
the case of Money Bills (like the NSW Parliament)
• It ultimately allows the House of Representatives to
prevail because of its 2:1 ratio of members with the
Senate
• Only bills originating in the House of Representatives can
trigger section 57
Case law on s57
• Two cases have considered s57 in detail

• Victoria v The Commonwealth (1975) 134 CLR

81 (also known as the PMA case or Petroleum
and Minerals Authority case)

• Western Australia v Commonwealth (1975)

134 CLR 201 (also known as the First Territorial
Senators case)
The PMA Case
• Involved the establishment of the Petroleum and Minerals
Authority (PMA) during the Whitlam government
• The passing of the bill to establish the PMA was one of the bills that
triggered the double dissolution in 1974
• The bill had passed the House of Representatives and was sent to
the Senate on the 13th December 1973 – the last day of the Senate’s
spring session.
• Debate commenced on the bill but was adjourned. The first issue
was - did this amount to ‘a failure to pass’ the bill.
• The High Court found that it didn’t constitute a failure to pass the
bill. The Senate must be allowed adequate time to deliberate and
debate the bill before it can be said to have failed to pass
• Public statements by the leader of the Senate for the opposition
were irrelevant to whether there was a failure to pass
The PMA Case
“at the date of the simultaneous dissolution of
the House of Representatives and the Senate, the
Bill did not satisfy the requirements of the first
paragraph of s57, and thus could not itself have
afforded a reason for that dissolution or be the
subject of debate and affirmation at a joint
sitting.” Barwick CJ at 109
The PMA Case
“No conclusive test can be devised which, by its
application, in all circumstances will provide a
ready answer to the question whether in any
particular instance parliamentary conduct
involves a failure to pass for the purposes of
s57…it may not be the character of the particular
parliamentary conduct but rather its excessive
employment that may identify it as a failure to
pass” Stephen J
The PMA Case
• The second issue related to the 3 month interval required by
section 57 – when did the 3 month period commence?
• From the time the House passed the bill or from the time when
the Senate failed to pass the bill?
• Was the 3 month period mandatory to trigger section 57 or
merely directory?
• The High Court found the 3 month interval commenced from
the rejection or failure to pass – and that it was a mandatory
requirement
• The result was there was no 3 month period in this case –
because the Senate never ‘rejected or failed to pass’ the bill
before the double dissolution was called
The PMA Case
“The plaintiffs submit that upon the true
construction of s57, the interval of three months
referred to in the first paragraph of the section is a
period which begins at the time at which the
Senate rejects, or fails to pass, or passes with
amendments which ultimately proved
unacceptable to the House of Representatives; that
the Senate had not rejected the Bill, failed to pass it
or passed it with unacceptable amendments before
2nd April 1974; and that, unless the interval of
three months had elapsed thereafter before the
House again passed the Bill, it would not qualify as
a proposed law for the purposes of the third
paragraph of s57.” Barwick CJ at 116
The PMA Case
“…there is no room, in my opinion, for the view
the terms of s57 are merely directory so that
failure to conform to its requirements will not
affect the validity of what is done. What is laid
down in s57 is a process of law making, and s57
is a provision of the Constitution. It is quite
inappropriate, in my opinion, to apply to such a
section the distinctions between a directory and
mandatory statutory provision.” Barwick CJ at
119
The First Territorial Senators
Case
• Involved the passage of the Senate (Representation of
Territories) bill
• It was challenged twice by the States – first by Western
Australia after it was passed by a Joint Sitting of Parliament in
1974 and then by Queensland
• The bill was twice rejected by the Senate
• The fact that nothing immediately happened after the
rejection – implying that there was no longer a disagreement –
was found to be irrelevant
• In other words – there doesn’t have to be an active and
ongoing disagreement between the House and the Senate to
trigger a double dissolution under s 57
First Territorial Senator’s Case
per Gibbs J at 236
“If…the House of Representatives has twice
passed a proposed law and the Senate has twice
rejected it, it is apparent that the two Houses are
in disagreement on the question whether that
proposed law should be passed, and it is not
correct to say that they have ceased to disagree
simply because some time elapses during which
no action is taken to resolve the disagreement.”
THE END