In A Fix: Fixed-Term Parliaments in the Australian States
| Published date | 01 June 2013 |
| Date | 01 June 2013 |
| DOI | 10.22145/flr.41.2.3 |
| Author | Peter Congdon |
| Subject Matter | Article |
IN A FIX: FIXED-TERM PARLIAMENTS IN THE
AUSTRALIAN STATES
Peter Congdon*
ABSTRACT
Constitutional systems of Westminster heritage are increasingly moving towards fixed-
term parliaments to, amongst other things, prevent the Premier or Prime Minister
opportunistically calling a 'snap election'. Amongst the Australian states, qualified
fixed-term parliaments currently exist in New South Wales, So uth Australia and
Victoria. Queensland, Tasmania and Western Australia have also deliberated over
whether to establish similar fixed-term parliaments. However, manner and form
provisions in those s tates' constitutions entrench the Parliament's duration, Governor's
Office and dissolution power. In Western Australia and Queensland, unlike Tasmania,
such provisions are doubly entrenched. This article considers whether these
entrenching provisions present legal obstacles to constitutional amendments
establishing fixed -term parliaments in those two states. This involves examining
whether laws fixing parliamentary terms fall within section 6 of t he Australia Acts 1986
(Cth) & (UK). The article concludes by examining recent amendments t o the Ele ctoral
Act 1907 (WA) designed to enable fixed election dates in Western Australia without
requiring a successful referendum.
INTRODUCTION
Qualified fixed-term parliaments in New South Wales, South Australia and Victoria
exemplify Justice Brandeis' famous 'laboratories of democracy' concept operating in
Australia's federal system.
1
These states have, to some extent, fixed their Parliament's
duration by limiting the Governor's power to dissolve Parliament prior to a fixed
date.
2
State Constitutions' predominantly uncontrolled nature has meant ordi nary
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* LLB (Hons), BA (Hons) W Aust. Tutor, Constitutional Law, University of Western
Australia. I would like to thank the anonymous refer ee, Dr James Thomson SC, Associate
Professor Sarah Murray, Mr Greg Calcutt AM SC and Mr Nicholas Tiverios for their
invaluable thoughts and comments on earlier versions of this article. Any errors or
omissions, of course, remain my own.
1
George Winterton, 'The Constitutional Position of Australian State Governors' in H P Lee
and George Winterton (eds), Australian Constitutional Perspectives (LawBook, 1992) 274, 333.
2
Constitution Act 1902 (NSW) s 24B; Constitution Act 1934 (SA) ss 28, 28A; Constitution Act
1975 (Vic) ss 8, 8A.
266 Federal Law Review Volume 41
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legislative procedures have genera lly been sufficient to effect these amendments.
3
However, fixing pa rliamentary terms in other Australian states raises constitutional
conundrums regardi ng the state Governor's role in dissolving the Legislative
Assembly or House of Assembly. In Western Australia restrictive procedures
purportedly apply to bills altering the Governor's Office or power to dissolve the
Assembly.
4
Similar restrictive procedures purportedly apply to Queensland bills
altering Quee nsland's gubernatorial office or extending its Assembly's duration.
5
Whilst the Tasmanian As sembly's duration and Governor's dissolution power are
purportedly entrenched, ordinary legislation may repeal or amend the entrenching
provision which is not itse lf entrenched.
6
Accordingly, this article aims to answer the
question: what manner and form requirements apply to a bill establishing a fixed-term
parliament i n We stern Australia or Queensland, similar to parliaments in other
Australian states?
Entrenchment issues arise only if legislation is inconsistent with purportedly
entrenched statutory provisions. Ascertaining subsequent legislation's consistency
with provisions purportedly entrenching gubernatoria l powers requires comparing the
Governor's powers before and after such legislation's passage.
7
Accordingly, Part One
examines the Governor's existing p ower to dissolve the Assembly ('dissolution power')
in Western Australia and Queensland. This is then compared with the G overnor's
dissolution power in New South Wales, South Australia and Victoria. It is concluded
that a law similarly fixing parliamentary terms in Western Australia or Queensland
would be inconsistent with entrenched provisions in those two states.
Consistency questi ons equ ally arise only if purportedly entrenched provisions are
binding. Part Two considers what source(s) of legal efficacy may bind Wester n
Australia's or Queensland's Parliament to observe applicable manner and form
provisions when enacting a law fixing Parliament' s term ('fixed-term Parliament law').
This analysis focuses on whether such a law is respecting Parliament's 'constitution,
powers or pr ocedure' and therefore engages s 6 of the Australia Act 1986 (Cth) & (UK)
('Australia Acts'). It is argued that a fixed -term parliament law falls within s 6.
Accordingly, in both Wes tern Australia and Queensland, electoral approval at a
referendum is necessary to validly enact such a law. The implications of this analysis
extend to other jurisdictions. Constitutional provisions fixing parliamentary terms in
New South Wales and Victoria are purportedly entrenched.
8
The efficacy of this
entrenchment turns on questions regarding the characterisation of legislation directed
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3
Constitution (Duration of Parliament) Act 1 984 (Vic); Constitution Act Amendment Act 1985
(SA); Constitution (Parliamentary Reform) Act 2003 (Vic). Section 24B of the Constitution Act
1902 (NSW) was inser ted following a state referendum in 1995 at which the electorate
approved the Constitution (Fixed Term Parliaments) Act 1993 (NSW).
4
Constitution Act 1889 (WA) ('WA Constitution Act') ss 3, 50, 73(2)(a),(e).
5
Constitution Act 1867 (Qld) ('Queensland Constitution Act') ss 11A, 53; Constitution Act
Amendment Act 1934 (Qld) s 4.
6
Constitution Act 1934 (Tas) ss 23, 41A. Regarding double entrenchment, see Western
Australia v Wilsmore (1982) 149 CLR 79, 99 –100 (Wilson J); West Lakes Ltd v South Australia
(1980) 25 SASR 389, 414 (Zelling J).
7
Sharples v Arnison (2001) 160 FLR 194, 206 (Ambrose J); Sharples v Arnison [2002] 2 Qd R 444,
454 (McPherson JA).
8
Constitution Act 1902 (NSW) ss 7B, 24B; Constitution Act 1975 (Vic) ss 8, 8A, 18(2).
2013 In a Fix: Fixed-Term Parliaments in the Australian States 267
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to returning to a variable-term parliament or repealing a fixed-ter m parliament law
that are substantially similar to those considered in Part Two.
Part Three considers the Electoral and Constitution Amendment Act 2011 (WA)
('EACAA') — a set of recent legislati ve amendments intended to 'enable a fixed election
date for general elections in Western Australia'. The EACAA is examined to determine
whether its enactment observed any applicable manner and form requirements. It is
argued that whilst the EACAA was potentially inconsistent with provisions that s 73(2)
of the WA Constitution Act entrenches, it did not engage s 6 of the Australia Acts.
Accordingly, its enactment through ordinary legislative procedures was sufficient.
I AUSTRALIAN STATE GOVERNORS' DISSOLUTION POWERS
A The Governor's Dissolution Power in Western Australia and Queensland
Section 3 of the WA Constitution Act provides 'it shall be lawful for the Governor … to
dissolve the Legislative Assembly by proclamation or otherwise whenever he shall
think fit'.
9
Similarly, under s 15(2) of the Constitution of Queensland 2001 (Qld) '[t]he
Governor may … dissolve the Legislative Assembly by proclamation or otherwise
whenever the Governor considers it expedient' . Both constitutional provisions express
the Governor's dissolution power in broad discretionary terms: 'whenever he shall
think fit' and 'whenever the Governor considers i t expedient'. The o nly te xtual
limitation — that dissolution be 'b y Proclamation or otherwise' — may preclude a non-
public means of effecting dissolution.
10
Otherwise, the Governor's discretion to grant,
refuse or force dissolution of the Assembly has traditionally been considered lega lly
unfettered.
11
However, in this context, merely outlin ing and analysing the State
Constitution Act's text is insufficient. The text may not exclusively determine whether
subsequent laws are consiste nt with purportedly entre nched cons titutional
provisions.
12
Instead, this article examines three potentia l substantive legal limitations
that may abrogate or qualify gubernatorial discretion in dissolving the Assembly:
(i) the Australia Acts;
(ii) s 60 of the Interpretation Act 1984 (WA); and
(iii) constitutional conventions implied in state Constitution Acts.
This paper rejects these li mitations and argues that both state Governors have a legally
unfettered discretion to dissolve the Assembly.
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9
No power is conferred to dissolve the Legislative Council.
10
Greg Taylor, The Constitution of Victoria (Federation Press, 2006) 326; Denis O'Brien, The
Powers of the Governor-General to Dissolve the Houses of Parliament (LLM Thesis, Australian
National University, 1982) 11–12, 168.
11
Stockdale v Hansard (1839) 112 ER 1112, 1126 (Lord Denman); Victoria v Commonwealth (1975)
134 CLR 81, 155–6 (Gibbs J). See also Eugene Forsey, The Royal Power of Dissolution of
Parliament in the British Commonwealth (Oxford University Press, 1943) 3.
12
See below n 78–80 and accompanying text.
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