Constitution, Section 57 — Further Questions
| Author | C K Comans |
| Published date | 01 September 1985 |
| Date | 01 September 1985 |
| DOI | http://doi.org/10.1177/0067205X8501500304 |
| Subject Matter | Article |
CONSTITUTION, SECTION 57 -FURTHER QUESTIONS
BY
C K COMANS*
Anumber
of
questions concerning the construction and application
of
sec-
tion
57
of
the Constitution have now been determined by the High Court.
The purposes
of
this note are to examine critically some implications
of
these
answers and to direct attention to some other technical questions that could
arise in the future. The special interest
of
the writer in these matters arises
from the fact that he was closely involved in the preparation
of
documents
in relation to the double dissolutions
of
1974
and
1975
and the joint sitting
of
1974.
It
is
not within the purposes
of
this article to discuss generally the extent
to which the Governor-General may be entitled to exercise apersonal judg-
ment
or
discretion in granting
or
refusing adouble dissolution. That
is
a
matter
of
constitutional propriety rather than the justiciable constitutional
law with which this article
is
concerned. However, it
will
be suggested that
there are circumstances in which such adiscretion to refuse adouble disso-
lution may be exercised and that this possibility
is
relevant to the legal oper-
ation
of
the section in relation to two
or
more Bills. It would seemthat, whilst
aPrime Minister with amajority in the House
of
Representatives can, in
effect, force the Governor-General to grant adissolution
of
the House
of
Representatives by threatening to resign,he cannot, by the same means, force
the Governor-General to grant adouble dissolution even where circumstances
exist that would enable the Governor-General to do so.
1FORM AND EFFECT OF DOUBLE DISSOLUTION
PROCLAMATIONS
The three most recent double dissolution Proclamations each recited the
fact
of
anumber
of
specified Bills having come within the first paragraph
of
section
57
as
the reason for the dissolution. In Cormack vCope} Bar-
wick
CJ
thought this "quite unnecessary". He added that it "tends to sup-
port the misconception that the dissolution
is
in respect
of
or
in relation to
aspecific proposed law
or
specific proposed laws".2None
of
the other
justices expressed asimilar view. The writer finds it difficult to
see
why it
should be undesirable to specify the Bill or Bills by reason
of
the parliamen-
tary history
of
which the Proclamation
is
made. In Western Australia v
Commonwealth3Stephen and Murphy
JJ
expressed the view that it was
desirable for the Proclamation to recite the Bills relied on4and Stephen J
appears to have been
of
the opinion that, where Bills are so recited, no other
Bill can be considered at ajoint sitting following the dissolution.SHis opin-
ion gave reasons which, with respect, appear
to
the writer to be convincing.
*CBE, QC, LLM; Former First Parliamentary Counsel, Commonwealth
of
Australia.
)(1974)
131
CLR 432.
2Ibid 450.
3(1975)
134
CLR 201.
4Ibid
261
and
292
respectively.
ISIbid 261-262.
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