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Research Note no. 7 2004–05
The 1974 joint sitting of Parliament: thirty years on
Scott Bennett
Politics and Public Administration Section
3 August 2004
August 2004 sees the thirtieth anniversary of the joint
sitting of Parliament held shortly after the double dissolution election
of 18 May 1974. This Research Note looks at the politics surrounding this
event.
A time of turmoil
The years of 1973 and 1974 were a time of political turmoil and change.
Internationally there were coups d’état in Greece, Chile and Ethiopia.
The fourth Israeli-Arab conflict broke out, and Turkey invaded Cyprus.
The Indian Government detonated a nuclear device. In the United Kingdom,
the international oil crisis was the backdrop to two British elections,
neither of which gave the incoming Labour Party control of the House of
Commons. In the space of ten months, the USA had both its Vice-President
and President resign from office. From early 1973 until April 1974, Australia’s
governmental arrangements were shaken by the threatened use of the national
upper house to block the appropriations (‘Supply’) needed for the conduct
of government.
Government difficulties with the Senate
The Whitlam Government, elected on 2 December 1972, lacked a majority
in the Senate, most of whose members had been elected at the 1967 and
1970 half-Senate-only elections. The Government was confronted by an Opposition
dealing with the loss of office after 23 years in power. Many Opposition
members, it is said, ‘simply did not accept the legitimacy of a Labor
government’.(1) Throughout 1973–4 many of the new government’s
Bills were opposed, various Bills had been rejected twice, and as early
as April and October 1973 there had been suggestions of the Senate blocking
Supply.(2) The half-Senate election due before 30 June 1974
was not likely to alter the parliamentary situation, for it was unlikely
to give Labor control of the upper house.
Section 57 of the Constitution
Section 57 provides a means of sorting out deadlocks between the House
of Representatives and the Senate. If legislation is blocked twice by
the Senate, there may be a dissolution of the houses followed by an election
for both. Previously there had been two double dissolution elections:
in 1914 and 1951. If, after such an election, the same legislation
is again blocked by the Senate, the Governor-General may convene a joint
sitting of the House of Representatives and the Senate, where the disputed
Bills can be voted into law. No joint sitting had occurred prior to 1974.
The Prime Minister and section 57
As it became harder to pass legislation through the Senate, the Prime
Minister emphasised to his colleagues the value of the Constitution’s
deadlock provisions. If the Government chose to use section 57, it might
improve its position in one of two ways. Firstly, it could gain control
of both houses following a double dissolution election, as Prime Minister
Menzies had done in 1951. Failing that, the holding of a joint sitting
might enable a returning Labor government to pass into law so much of
its program as the Senate had rejected twice. Some advice suggested that
only one piece of legislation could be dealt with under the constitutional
arrangements, but Whitlam believed that any number of twice-rejected Bills
could be dealt with at the same time.(3) Matters were
brought to a head by by what became known as the ‘Gair Affair’.
The ‘Gair Affair’—and Supply
On 21 March 1974 Whitlam announced the half-Senate election for 18 May
1974. On the same day, the Executive Council secretly approved the appointment
of Democratic Labor Party Senator Vince Gair as Ambassador to Ireland.
By creating this extra vacancy in the Queensland representation, Whitlam
hoped to win an extra seat and possibly control of the upper house. This
dramatic event was said to have been born out of ‘[f]rustration, anger,
opportunism, fear and bravado’.(4) When the Gair appointment
was publicly confirmed on 2 April, the Leader of the Opposition,
Billy Snedden, attacked it as ‘the most shameful event by any government
in Australia’s history’, his anger indicating the Opposition’s fear that
Labor might gain control of the Senate.(5) Two days later,
during a parliamentary debate on appropriation legislation, Snedden spoke
of the Opposition’s intention to block this supply legislation in the
Senate. Accordingly, on 10 April, the Senate Opposition leader, Reg Withers,
moved that, ‘because of its mal-administration the Government should not
be granted funds until it agrees to submit itself to the people’.(6)
The Government leader in the Senate, Lionel Murphy, moved the closure
of the debate, announcing that the Government would regard defeat of his
motion ‘as a denial of Supply’. Murphy’s motion was lost, 26 votes to
31.(7)
Both houses are dissolved
The Prime Minister could have advised the Governor-General to dissolve
the House, forcing a House election to be held in conjunction with the
forthcoming half-Senate election. In the event, Whitlam chose to advise
the dissolution of House and Senate, no doubt in the hope that the Government
would gain control of both. In doing, so he was using the fact that at
least five pieces of legislation appeared to have fulfilled the section
57 criteria:
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the Commonwealth Electoral Bill (No.
2) 1973, which sought to make Commonwealth electorates
more even in size by reducing the allowable quota variation for from
20 per cent to 10 per cent
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the Senate (Representation of Territories) Bill
1973, which gave the Australian Capital Territory and the Northern
Territory their first senators—two each
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the Representation Bill 1973,
which stated that neither the people of the territories, nor the Territory
Senators, could be included in the formula for determining the number
of House seats for each State
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the Health Insurance Bill 1973, which was the
main bill that established Medibank, perhaps the most significant
piece of health legislation to that date, and
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the Health Insurance Commission Bill
1973, which established the Medibank administrative agency.
The Petroleum and Minerals Authority Bill 1973 was
included despite some uncertainty as to whether the provisions of s.57
had been met. This established a statutory body to control the exploration
for, and development of, petroleum and mining resources. The Governor-General
accepted the Prime Minister’s advice and granted an immediate dissolution
of both houses, provided that adequate provision could be made for carrying
on the Public Service during the period of time covered by the elections.
The Opposition ensured that the required supply legislation was passed,
clearing the way for the election. This third double dissolution broke
new ground:
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In the first two double dissolutions, the government’s
request had relied on just a single Bill.
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As three of the six Bills had been rejected for the
second time in a previous session of the Parliament, the use of these
to justify the double dissolution implied that ‘a stockpile of rejected
Bills’ could be amassed by a government ‘to be used as a basis for
seeking a double dissolution as and when it suited the Government
to do so’.(8)
The 1974 double dissolution election
Despite the use of the six Bills to justify the 1974 double dissolution
election, they ‘were never really the subject of election debate’ during
the campaign period.(9) The Opposition campaign focussed on
its claims of government mismanagement and of the economy being out of
control; the Government campaign reminded voters of its mandate to govern
given by voters in 1972.(10) The Whitlam Government was
returned to office with little change in major party votes or seats. It
was, however, still two seats short of a majority in the Senate.
The next stage of section 57
Parliament reassembled on 9 July 1974 and the six Bills were reintroduced
on the following day. All had been passed by the House by the close of
business on 11 July. Between 16 and 24 July, all were negatived at the
second reading stage in the Senate. The way was therefore clear for a
joint sitting of the two houses as provided for in section 57, and on
30 July the Governor-General issued a proclamation calling the members
of the two houses to a joint sitting at 10.30 am on 6 August 1974:
at which they may deliberate and shall vote together
upon each of the said proposed laws as last proposed by the House of
Representatives.(11)
Differing views
Not all observers believed that a joint sitting should be held. The Coalition
parties sought to find a way to block it, but with no success.(12)
By contrast, Professor Alex Castles of Adelaide Law School expressed no
doubts:
the spirit of the Constitution is clear on this point—the
joint sitting is intended to resolve the deadlocks which occurred in
the last Parliament and which caused last month’s double dissolution.(13)
Planning for the joint sitting
There were few guidelines as to how a joint sitting should be run, though
the houses’ standing orders specified how a chair should be chosen and
how votes would be taken. The Government’s House and Senate leaders met
with the Clerks of the two houses to arrange the procedures. Each
clerk was keen for his chamber to be used as the venue. The main claim
for the Senate was that there was ‘ceremonial and historical precedent’
for its use—that is, its use for the opening of Parliament. On the other
hand, the seating of the House of Representatives was more adequate.(14)
The Prime Minister was insistent that the meeting should take place in
the House of Representatives chamber, and the Governor-General’s proclamation
duly confirmed the House of Representatives as the location for the joint
sitting.
Rules of conduct
Special rules were drafted for the conduct of business.(15)
These included the hours of sittings, a 20 minute limit applied to speeches,
and the requirement that there had to be at least four hours debate (or
12 speakers) before debates on any Bill could be ended.
Legislative changes
Various pieces of legislation were amended to give legal protection to
the proceedings:
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the Evidence Act 1905–1973 was amended so
that judicial notice could be taken of the signature of the presiding
officer, and also that the formal record of the proceedings could
be admissible in court as evidence
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the Parliamentary Papers Act 1908 was amended
to give the official publication of proceedings the same protection
as applied in ordinary sittings of the two chambers, and
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the Parliamentary Proceedings Broadcasting Act
1946 was amended to allow broadcasting of the proceedings and
to give such broadcasts the same protection as given to ordinary parliamentary
broadcasts.
The broadcasting of proceedings
The Joint Committee on the Broadcasting of Parliamentary Proceedings announced
that there would be radio and television broadcasts of the proceedings.
This would be the first Australian television coverage of parliamentary
debates. Announcements were to be kept to a straight description of procedure
and business. There were to be no political views or forecasts expressed
during the broadcasts, nor could there be any comment on the presence
or absence of specific members or senators, though reference could be
made to how specific members or senators voted in divisions. The Joint
Committee also determined that the ABC should video-tape the proceedings
and a one hour programme on the joint sitting be prepared and shown nationally.
High Court writ
To avoid allegations of obstructionism, the Coalition decided that only
Senators Sir Magnus Cormack (Lib) and Jim Webster (CP) should challenge
the sitting in the High Court.(16) Their writ, issued on 1
August 1974, sought to:
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invalidate the proclamation of the joint sitting
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declare that the joint sitting was not empowered to
vote on all the proposed laws referred to in the proclamation
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declare that the joint sitting could only vote on
one proposed law, and
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declare that the Petroleum and Minerals Authority
Bill did not fulfil the requirements of section 57 and could not be
voted upon at the joint sitting.(17)
The State of Queensland also sought a similar declaration
on the Petroleum and Minerals Authority Bill. These matters were heard
by six justices of the High Court. An oral judgment was given on 5 August,
wherein the Court held that:
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a joint sitting ‘may deliberate and vote upon any
number of proposed laws in respect of which the requirements of s.57
have been fulfilled’
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even if s.57 had not been complied with in regard
to a particular Bill, the joint sitting was still valid because there
were other Bills on which Parliament was deadlocked.(18)
It seemed that the justices either wished to avoid
High Court intervention or else believed the High Court could not intervene.
The joint sitting
The joint sitting met on 6 and 7 August 1974, with every member of the
Parliament in attendance. The Bills required an absolute majority of all
187 MPs (127 MPs and 60 senators) to become law. A vote of 94 was therefore
required, so that if at least 94 of the 95 Labor MPs supported the Bills,
each would be passed.
Election of the chair
After the reading of the Governor-General’s proclamation, Speaker Jim
Cope (ALP) assumed the chair. His had been the only nomination. He expressed
his ‘grateful thanks for the high honour’ he had been granted, though
Snedden responded that the Opposition had not nominated a chair due to
its desire ‘to proceed with the business of this Joint Sitting as rapidly
as possible’.(19) Cope noted that this first joint sitting
of the houses was ‘an occasion of great constitutional significance in
the history of this Parliament’.(20)
The business of the joint sitting
The joint sitting dealt with the electoral Bills on 6 August and the other
three Bills on the following day. By agreement the two representation
Bills were discussed together, though separate votes were taken on each.
Similarly the health insurance Bills were discussed together but voted
on separately. The different perspectives of Government and Opposition
were summed up by their leaders. The Prime Minister claimed that the joint
sitting had come about:
because of the repeated refusal of the Senate to pass
legislation which has been approved by the House of Representatives—the
people’s House, the House where alone governments are made and unmade.(21)
In reply, the Leader of the Opposition stated:
We are not resolved to obstruct legislation. We are resolved
not to let legislation go through the House of Representatives and the
Senate which we believe is bad in principle and which would detract
from the constitutional principles of parliamentary democracy.(22)
For the most part, the proceedings moved smoothly.
The health insurance Bills were both passed on party lines, 95:92; the
Petroleum and Minerals Authority legislation also passed on party lines,
though with one Liberal absent. Senator Steele Hall (Liberal Movement)
supported the three electoral Bills, citing his experience as Liberal
Premier of South Australia, where he had fought his own party in an effort
to improve unequal electoral arrangements.(23) Northern Territory
Country Party Senator, Sam Calder, supported the Territory Senators legislation,
though he opposed the ACT being given added representation.(24)
The proceedings concluded at 11 pm on 7 August to mixed reviews. Labor
saw it as an ‘historic’ event; their opponents saw it as a waste of time.
Others saw it, simply, as a distraction: ‘the ersatz glamour of the event
barely concealed the inaction of the Government as the nation approaches
a state of crisis’.(25)
Later court challenges
Court challenges were soon made to these proceedings. In the Petroleum
and Minerals Authority case, the High Court held that the legislation
should not have been submitted to a joint sitting, because the required
three month period between being rejected for the first time and its second
submission to the Parliament had not occurred. The legislation was therefore
invalid.(26) In the First Territory
Senators case the High Court found that the Commonwealth
Electoral Act (No. 2) 1973, Senate (Representation of Territories)
Act 1973 and the Representation Act 1973 ‘had been duly passed
by both Houses of Parliament within the meaning of s.57’.(27)
Looking back
When the Constitution founders wrote s.57 they made two innovations to
the Westminster parliamentary system. The first was the possibility of
the simultaneous election of the two houses to sort out differences over
legislation. The first two double dissolution elections of 1914 and 1951
had indicated that this was likely to solve any disagreements between
the houses. In 1914 the Cook Government was not returned; in 1951 the
Menzies Government was returned and also gained control of the upper house.
The second innovation was the joint sitting. The 1974 double dissolution
election result had not provided a solution to the problem of Senate rejection.
The Whitlam Government took the final step provided for in the Constitution
by having twice-defeated Bills passed at a joint sitting, enabling the
Government to bypass the Senate. In more recent time s.57 has been
criticised for being cumbersome and ‘not a workable means of resolving
deadlocks’.(28) In 1974, however, the section worked as the
Constitution founders had expected. Two political terms that emerged
at this time have become part of the Australian political lexicon. These
events showed that governments were not limited to the use of a single
piece of rejected legislation as the justification for a double dissolution
and the consequential election. Nor were they required to use a rejected
Bill the moment its second rejection occurred. Governments could, in fact,
‘stockpile’ rejected Bills (soon dubbed ‘double dissolution triggers’)
for possible use in the future (though the Constitution forbids such use
within six months of the due date for the expiry of the House of Representatives).
The post-1974 opportunity for prime ministers to be able to ‘stockpile’
such ‘double dissolution triggers’ has significantly increased the power
available to prime ministers. Political analysts had long been aware of
the power to call an election being an important prime ministerial weapon
to use against opponents within the prime minister’s party as well as
those across the chamber.(29) We now appreciate that the double
dissolution threat has added to that power, for it can be used against
the full Senate as well. These events of thirty years ago have made
a lasting mark upon Australian government and politics.
Endnotes
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Gerard Henderson, Menzies’ Child: The Liberal Party of
Australia, 1944–1994, Allen & Unwin Sydney,
1994, p. 222.
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C. Lloyd and G. Reid, Out of the Wilderness the return of Labor,
Cassell, Melbourne, 1974, p. 381.
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L. Oakes and D. Solomon, Grab for Power: Election ’74, Cheshire,
Melbourne, 1974, p. 452.
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Allan Barnes, ‘How the Gair affair was born: by opportunism, out
of anger’, Age, 9 April 1974.
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Oakes and Solomon, op. cit., p. 16.
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Senate, Debates, 10 April 1974, p. 884.
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Senate, Debates, 10 April 1974, p. 893.
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R. E. Bullock, ‘Australian Parliament—Joint Sitting of Senate and
House of Representatives’, Table, vol. 63, 1975, p.
14.
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G. Davidson, ‘The amber light unlikely to change to red’, Canberra
Times, 4 June 1974.
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For the 1974 election, see Oakes and Solomon, op. cit.
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Australian Government Gazette S62B, 30 July 1974.
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Oakes and Solomon, op. cit., pp. 531–2.
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Talk given on ABC Radio, 7 June 1974.
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Bullock, op. cit., pp. 15–16.
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Senate, Journals, 1974–5, pp. 117–20.
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Oakes and Solomon, op. cit., p. 532.
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House of Representatives Practice, 1971, p. 72.
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Cormack v Cope (1974) 131 CLR 432.
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Joint Sitting, Debates, 6 August 1974, p. 3.
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ibid, p. 4.
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ibid, p. 4.
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ibid, p. 7.
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ibid, p. 15.
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ibid, p. 77.
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‘Priorities Mixed’, editorial Canberra
Times, 8 August 1974.
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Victoria v The Commonwealth and Connor (1975) 134
CLR 81 at 82.
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Western Australia v Commonwealth (1975) 134 CLR 201
at 202.
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Resolving Deadlocks: a discussion paper on section 57 of the
Australian Constitution, Department of Prime Minister and Cabinet,
Canberra, 2003, p. 7.
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L. F. Crisp, Australian National Government, Longmans, Melbourne,
5th ed. 1983, p. 386.
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