Proroguing the Parliament of Australia: The Effect on the Senate and the Conventions that Constrain the Prerogative Power

Date01 March 2012
AuthorEliot Olivier
DOI10.22145/flr.40.1.3
Published date01 March 2012
Subject MatterArticle
PROROGUING THE PARLIAMENT OF AUSTRALIA:
THE EFFECT ON THE SENATE AND THE CONVENTIONS
THAT CONSTRAIN THE PREROGATIVE POWER
Eliot Olivier*
ABSTRACT
Political controversies in New South Wales and Canada recently have focused public
attention on the constitutional practice of proroguing parliament. They have also shone
a light o n two lingering areas of uncertainty that surround its opera tion under the
Commonwealth Co nstitution. This a rticle seeks to clarify these two muddy areas of the
law concerning pr orogation. The first is the effect of prorogation on the Senate and its
committees. Since Federation, the Senate has purported to authorise its committees to
continue to function notwithstanding a prorogation of the Parliament. However, it is
argued that this practice is unsupported by the provisions of the Constitution and the
Senate has no such power. Second, the article examines the operation of the
conventions that constrain the Governor-General's power to prorogue. Prorogation
generally is exercised on the advice of the Prime Minister. However, this article
contends that where a Prime Minister seeks to prorogue Parliament to avoid a vote of
no confidence, the Governor-General will have a discretion to reject the advice. It may
also be open to the Governor-General to reject an advice to prorogue where the
purpose is to avoid scruti ny of a fundamental constitutional illegality. In Austra lia, the
uncertainties that surround prorogation, coupled with the now precarious political
landscape in Canberra, create the very real possibility of a prorogation crisis at the
Commonwealth level. This article provides a response to these uncertainties. In doing
so it offers a solution to how a prorogation cris is can be resolved, whilst maintai ning
the fine balance of power in our constitutional system.
INTRODUCTION
In 19 10, Premier James McGowen formed the first Labor Government in New South
Wales with only a bare majority in the Legislative Assembly. The following year, with
McGowen and the G overnor in England attending the coronation of King George V,
two Government members suddenly resigned.
1
In a bid to head off a vote of no
_____________________________________________________________________________________
* Eliot Olivier graduated from Sydney Law School in 2011 with LLB (Hons). Thanks to
Professor Anne Twomey for her assistance with this article and James Mack for his
comments on an earlier version. Contact: eliotolivier@gmail.com.
70 Federal Law Review Volume 40
____________________________________________________________________________________
confidence in the now opposition-dominated Assembly, acting Premier William
Holman advised Lieutenant-Governor William Cullen to prorogue Parliament until
by-elections could be held. But Cullen declined to follow the advice. Ho lman
responded by offering his resignation and Cullen asked Opposition Leader Charles
Wade to form government. Wade agreed to take the Premiership, but only on
condition the L ieutenant-Governor grant him a dissolution of the Parliament. Cullen
also declined this request and so Holman withdrew his resignation and Cullen granted
him the prorogation he had originally advised.
2
The Holman-Cullen case was co ntroversial at the time and a century la ter
prorogation is still far from a settled subject. Two recent controversies dem onstrate the
continuing uncertainty surrounding its operatio n. In 2010, the New S outh Wales
Government prorogued the Parliament in an attempt to shut down a Legislative
Council Committee inquiry into a contentious electricity privatisation deal. The
manoeuvre created considerable controversy before both sides backed down and a
political stalemate was reached.
3
However, the argument over the legal effect of the
prorogation on the NSW Legislative Council and its committees remains unresolved.
In 2008, the Canadian Prime Minister advised his Governor-Genera l to prorogue
Parliament in order to avoid an impending vote of no confidence just as Holman
had done in NSW almost a hundred years earlier. While eventually the Governor-
General granted the prorogation, there has been considerable debate in Canada about
whether she could have refused the Prime Minister's advice.
4
With the Commonwealth Parliament now precariously balanced and a minority
Government holding power only by virtue of s upport from the crossbenchers, the
triggers are now in place for a politically charged prorogation; this time at the
Commonwealth level. Given the con tinuing uncertainty about the operation of
prorogation in Australia, the situation has the potential to lead to a const itutional
crisis. In light of the recent events in NSW and Canada, this article seeks to answer
how such a crisis should be resolved a t the Common wealth level by addressing two
key uncertainties surrounding prorogation. First, the article considers the effect of
prorogation on the Australian Senate and its committees. Since its creation the Senate
has asserted a power to authorise its committees to continue to fu nction after
prorogation. However, the article argues that this assertion has no constitutional basis
and that the Senate has no such power. It also dismisses the assertion that the Senate
itself has the power to function after prorogation.
Second, the article addresses the constitutional convention s that constrain the
prerogative power to prorogue. A ccording to convention prorogation usually is
exercised by the Governor -General on the advice of the Prime Minister. However, in
certain circumstances the Governor- General may be able to exercise power contrary to,
or without, advice.
5
Looking to the controversy in Canada as well as Australian
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1
H V Evatt, William Holman, Australian Labor Leader (Angus & Robertson, 1979) 208.
2
Anne Twomey, 'How to Succeed in a Hung Parliament' (2010) 54(11) Quadrant Magazine 36,
37; Anne Twomey, Constitution of New South Wales (The Federation Press, 2004) 465.
3
Legislative Council General Purpose Standing Committee No 1, Parliament of NSW, The
Gentrader Transactions (2011) 12 ('Gentrader Report').
4
See below page 84.
5
See, eg, Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political
Accountability (Oxford University Press, 1984) 35-44.

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