Double dissolution

A double dissolution is a procedure permitted under the Australian Constitution to resolve deadlocks between the House of Representatives and the Senate. If the conditions are satisfied (called a trigger), the government of the day can request the Governor-General to dissolve both houses of parliament and call a full election. If after the election the legislation is still not passed by the two houses, then a joint sitting of the two houses of parliament can be called to vote on the legislation. If the legislation is passed by the joint sitting, then the legislation is deemed to have passed both the House of Representatives and the Senate.

A double dissolution is the only circumstance in which the entire Senate can be dissolved. Also, as a result of all seats being contested, it is easier for smaller parties to obtain election to the Senate under the Senate proportional voting system: the quota for the election of each senator in each Australian state in a full Senate election is 7.69% (1+1/(12+1)), while in a normal half-Senate election the quota is 14.28% (1+1/(6+1)).

Similar to the United States Congress, but unlike the United Kingdom and Canadian Parliaments, Australia's two parliamentary houses generally have equal legislative power. The only exception is that appropriation (money) bills must originate in the House of Representatives and cannot be amended by the Senate (although they may be rejected outright). With the Senate having more or less equal power, governments, which are formed in the House of Representatives, can be seriously frustrated by Senate majorities determined to reject their legislation. This can be the case even when a government has a very strong majority in the House of Representatives.

Malcolm Fraser is the only Prime Minister to have advised two double dissolutions (1975 and 1983), and Sir Ninian Stephen is the only Governor-General to have approved two double dissolutions (1983 and 1987).

Constitutional basis

Part of section 57 of the Constitution provides as follows:

If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.

Section 57 also provides that, following the election, if the Senate a third time rejects the bill or bills that were the subject of the double dissolution, the Governor-General may convene a joint sitting of the two houses to consider the bill or bills, including any amendments which have been previously proposed in either house, or any new amendments. If a bill is passed by an absolute majority of the total membership of the joint sitting, it is treated as though it had been passed separately by both houses, and is presented for Royal Assent.

Trigger event

The double dissolution provision comes into play if the Senate and House twice fail to agree on a piece of legislation (in section 57 called "a proposed law", and commonly referred to as a "trigger"). The government may use this trigger (or any number of triggers) to recommend the Governor-General dissolve the House and the entire Senate – pursuant to section 57 of the Constitution – and issue writs for an election in which every seat in the Parliament is contested.

The conditions stipulated by section 57 of the Constitution are—

• The trigger bill originated in the House of Representatives.
• Three months elapsed between the two rejections of the bill by the Senate ("rejection" in this context can extend to the Senate's failure to pass the bill, or to the Senate passing it with amendments to which the House of Representatives will not agree).
• The second rejection occurred in the same session as the first, or the subsequent session, but no later.

There is no similar provision for resolving deadlocks with respect to bills that have originated in the Senate and are blocked in the House of Representatives.

Though the Constitution refers to the Governor-General doing certain things, it had until the 1975 Australian constitutional crisis been believed that convention required the Governor-General to act only on the advice of the Prime Minister. However, as the 1975 constitutional crisis demonstrated, the Governor-General is not compelled to follow the Prime Minister's advice. In these cases, he or she must be personally satisfied that the conditions specified in the Constitution apply, and is entitled to seek additional information or advice before coming to a decision.

History

There have been 6 double dissolutions: in 1914, 1951, 1974, 1975, 1983, and 1987. However, a joint sitting following a double dissolution pursuant to section 57 has only taken place once, and that was in 1974.

In 1914, the Joseph Cook Commonwealth Liberal Party sought to abolish preferential employment for trade union members in the public service, resulting in a double dissolution on 30 July 1914. In the election on 5 September 1914 the government was defeated by the opposition, Andrew Fisher's Australian Labor Party, and the bill was not pursued.

In 1951, the Robert Menzies Liberal-Country Party coalition government sought to reverse the proposed nationalisation of the banks put in place by the Australian Labor Party led by Ben Chifley when it was still in government. The repeal was opposed by the Labor Party in the Senate. Parliament was dissolved on 19 March 1951. In the election on 28 April 1951, the government was returned with a reduced majority in the lower house, but now with a majority in the Senate. The Commonwealth Bank Bill was presented to Parliament again on 26 June 1951 and passed both houses.

In 1974, the Gough Whitlam Labor government was unable to pass a large number of bills through a hostile Senate. The government had announced a half-Senate election, but in the wake of the Gair Affair, Whitlam decided to call a double dissolution on 11 April 1974, citing six bills as triggers for a double dissolution. The bills included representation of the territories and for the setting up of Medibank. At the election of 18 May 1974, the government was returned, but still without a majority in the Senate. Sir Paul Hasluck's term as Governor-General ended on 11 July and the new Governor-General Sir John Kerr took office. The trigger bills were reintroduced and again rejected by the Senate and on 30 July Kerr approved Whitlam's request for a joint sitting. The coalition parties applied to the High Court on 1 August to prevent the joint sitting. One of the grounds was that the dissolution writs did not set out which "proposed laws" were the subject of the dissolution and that only one bill could be dealt with at a joint sitting. The court delivered a unanimous decision on 5 August 1974 and ruled that the sitting was constitutionally valid, that the joint sitting may deal with any number of trigger bills, and that provided the circumstances set out in section 57 had been satisfied then the Governor-General need not specify which "proposed laws" were to be the subject of a future joint sitting. The joint sitting took place on 6–7 August 1974, and it passed the 6 trigger bills. Thirteen months later, four states challenged the validity of the Petroleum and Minerals Authority Act 1973 in the High Court on the grounds that correct constitutional procedure had not been followed: it had not been one of the 'proposed laws' in dispute when the double dissolution was called and could not therefore be voted on by the joint session. The states were Victoria, New South Wales, Queensland and Western Australia. The High Court ruled that the Act was not eligible for the double dissolution process, as the Senate had not had sufficient time to "fail to pass" it.

In 1975, the Whitlam government was again frustrated by a hostile Senate. The government had accumulated a total of 21 trigger bills, but did not call for a double dissolution. However, the Whitlam government was unable to obtain passage of appropriation bills through the hostile Senate and leading to the 1975 Australian constitutional crisis. On 11 November 1975, in an attempt to break the deadlock, Whitlam intended to call a half-Senate election, but instead was dismissed by the Governor-General, Sir John Kerr, who then appointed Malcolm Fraser, the Leader of the Liberal-Country coalition Opposition, caretaker Prime Minister. The Fraser minority government immediately passed the Supply bills through the Senate (it had already passed the House of Representatives) before losing a no-confidence motion in the House of Representatives. Kerr then dissolved both houses of Parliament on the "advice" of the caretaker Prime Minister citing the trigger bills, even though Fraser had opposed the bills. (Commentators have since noted that the trigger bills also put the loaded gun in the hands of the Governor-General.) Fraser remained the caretaker Prime Minister during the election campaign. In the election on 13 December 1975 the Fraser government was elected with a majority in both houses and the trigger bills were not brought up after the election.

On 3 February 1983, the Fraser government called a double dissolution, citing 13 trigger bills. When Fraser called the election, he expected he would be facing Bill Hayden as the alternative prime minister. But unbeknown to Fraser, Labor had changed leadership from Hayden to Bob Hawke earlier that same morning. The Fraser coalition government was defeated by the Labor Opposition led by Hawke at the election on 5 March 1983, and the bills were not pursued.

On 5 June 1987, the Hawke government called a double dissolution after the rejection of the Australia Card Bill 1986. The government was returned at the election of 11 July 1987, but still without a Senate majority. The bill was reintroduced in September 1987, and a vote in the Senate was planned for 7 October. A retired public servant, Ewart Smith, pointed out that the Australia Card Bill was unworkable because the implementation date would have needed to be the subject of a regulation, which would have required the concurrence of the Senate, which was hostile to the legislation. Even if the bill had been passed by the parliament at a joint sitting, the Opposition could still have prevented it from being implemented as long as it held a majority in the Senate. In these circumstances, Hawke decided to abandon the bill.

Summary

The following table is a summary of the relevant details:

Date of double dissolution	Date of election	Governor-General	Prime Minister	Leader of the Opposition	Relevant bills	Circumstances and outcome
30 July 1914	5 September 1914	Sir Ronald Munro Ferguson	Joseph Cook	Andrew Fisher	Government Preference Prohibition Bill 1913	The bill sought to abolish preferential employment for trade union members in the public service. The Cook Commonwealth Liberal Party government was defeated by Andrew Fisher's Australian Labor Party.
19 March 1951	28 April 1951	William McKell	Robert Menzies	Ben Chifley	Commonwealth Bank Bill 1950 [No. 2]	The Menzies Liberal-Country Party coalition government was opposed by Chifley's Labor Party. It was returned with a reduced majority in the lower house, but crucially it now had a majority in the Senate as well. The Commonwealth Bank Bill was presented to Parliament again and passed both houses.
11 April 1974	18 May 1974	Sir Paul Hasluck	Gough Whitlam	Billy Snedden	6 bills	The Whitlam Labor government was returned, but still without a majority in the Senate. The bills were reintroduced and again rejected by the Senate. Sir Paul Hasluck's term ended on 11 July and the new Governor-General Sir John Kerr approved Whitlam's request for a joint sitting. This was held on 6–7 August 1974, and it passed all the bills. Subsequently, the High Court ruled that the Petroleum and Minerals Authority Bill had not been eligible for the double dissolution process, as the Senate had not had sufficient time to "fail to pass" it.
11 November 1975	13 December 1975	Sir John Kerr	Malcolm Fraser (caretaker)	Gough Whitlam	21 bills	Fraser had opposed the bills as Leader of the Liberal-Country coalition Opposition. He had been appointed caretaker Prime Minister when the Whitlam government was dismissed by Sir John Kerr after being unable to obtain passage of its appropriation bills. The Fraser minority government immediately lost a no-confidence motion in the lower house; but Kerr dissolved the Parliament on Fraser's advice (a condition of his appointment). Fraser remained the caretaker Prime Minister during the election campaign. On 13 December the Fraser government was elected in its own right with a record majority.
3 February 1983	5 March 1983	Sir Ninian Stephen	Malcolm Fraser	Bob Hawke	13 bills	When Fraser called the election, he expected he would be facing Bill Hayden as the alternative prime minister. But unbeknownst to Fraser, Labor had changed leadership from Hayden to Bob Hawke earlier that same morning. The Fraser coalition government was defeated by the Labor opposition led by Hawke.
5 June 1987	11 July 1987	Sir Ninian Stephen	Bob Hawke	John Howard	Australia Card Bill 1986	The Hawke government was returned for its third term, but still without a Senate majority. The bill was reintroduced in September, and a vote in the Senate was planned for 7 October. A retired public servant, Ewart Smith, pointed out that the Australia Card Bill was unworkable because the implementation date was a matter of regulation, requiring the concurrence of the Senate alone, which was hostile to the legislation. Even if the bill had been passed by the parliament at a joint sitting, the Senate could still have prevented it ever being implemented in practice. In these circumstances, Hawke decided to abandon the bill.

See also

• Electoral system of Australia