Caught by surprise by section five

There was speculation that the Prime Minister was going to pull a rabbit out of a hat and force the Senate to return and consider the ABCC Bill. This Bill has been through the House twice and the Senate once, if it is rejected by the Senate again it will become a double dissolution trigger.

However the use of section 5 of the Constitution to call the Parliament back early came as a surprise. The Prime Minister caught the opposition off-guard, along with the commentariat.

Journalist Chris Uhlmann on the ABC on Tuesday morning 22 March said that all the constitutional experts he had spoken to had not expected that section 5 would be used to recall the Senate.

In fact, on Friday 18 March the Senate had made an unusual point of ensuring that the Senate President could not call them back before 10 May without a majority of Senators agreeing. It’s likely they were expecting the Senate President to call them back early if he could.

The Prime Ministers announcement came at 10.30am on Monday 21 March:

Today, I called upon His Excellency the Governor General to advise him to recall both Houses of Parliament on April 18 to consider and pass the Australian Building and Construction Commission Bills and the Registered Organisations Bill and he has made a proclamation to that effect.

He later mentioned the use of section 5 of the Constitution:

Section 5 of the Constitution, this is the power which the Governor-General is exercising to prorogue the Parliament and summon it back – yes, all of the Senators and Members will be summoned back here on 18 April.

The Deputy Prime Minister and Nationals leader Barnaby Joyce gave a press conference not long after the announcement by the Prime Minister. He said:

We support, absolutely, the right of the Prime Minister of Australia to basically lay down a clear path for where we are going. It is outlined in section 5 of the Constitution, the capacity for the Governor-General to prorogue the Parliament in such form as to bring back the debate on this issue. And the ABCC the Australian Building and Construction Commission will be that issue. And it will sit there with other issues such as registered organisations, as a trigger for a double dissolution.

If all the constitutional experts were caught by surprise, how did the PM know about this little known section of the Constitution?

Here’s a bit more from the Deputy PM:

There's nothing radical [in] showing people what is available to them by their own Constitution by Section 5 and Section 57. This is not some dreamt up scheme. It was always there. It was there in black and white for anybody who wished to read it.

So, what is this power?

In the Parliamentary Practice power and procedures, the prorogation of Parliament is described:

The prorogation of Parliament is a prerogative act of the Crown. Just as Parliament can commence its deliberations only at the time appointed by the Queen, so it cannot continue them any longer than she pleases.

So the Parliament sits at the Queen’s pleasure and the royal prerogative can be used to end a session of Parliament and also to start one up.

Here is the section of the Constitution that stipulates this:

Section 5. Sessions of Parliament. Prorogation and dissolution 
The Governor‑General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives. 

You’ll notice that it does not mention that the Governor-General may only use the royal prerogative by acting on the advice of the Federal Executive Council. Although on this occasion the Governor-General has acted on the advice of his Prime Minister with an accompanying letter and report written by the Attorney-General outlining the legal basis for the use of this power.

So what happens now?

There are two stages in this process. First the Governor-General has stated that he will end the current session of Parliament by proclamation at 5.00pm on 15 April and this is called the ‘prorogation’. He has then appointed the time when he will summon a new session of Parliament which will be at 9.30am on 18 April.

So what happens on 15 April?

At 5.00pm on Friday 15 April all the Bills and other business lapse in the Parliament. Here’s an outline from the Parliamentary Practice power and procedures:

  • All proceedings come to an end—that is, all business on the Notice Paper lapses.
  • Any sessional orders cease to have effect.
  • Resolutions or orders of the House cease to have any force unless they are deemed to continue in a new session by virtue of being passed as standing orders or pursuant to statute, or unless there are explicit provisions to give them continuing force, or unless it is implicitly understood that they are to have ongoing effect.
  • The House may not meet until the date nominated in the proclamation.
  • Bills agreed to by both Houses during a session are in practice assented to prior to the signing of the prorogation proclamation. However, bills have been assented to after Parliament has been prorogued.
  • The procedure in relation to a notice of motion for the disallowance of a regulation applies to prorogation as to dissolution.
  • Committees of the House and joint committees appointed by standing order or by resolution for the life of the Parliament continue in existence but may not meet and transact business following prorogation.
  • Committees whose tenure is on a sessional basis cease to exist.
  • Statutory committees continue in existence and may meet and transact business if, as is the normal practice, the Act under which they are appointed so provides. The Senate has taken a different approach to that of the House in relation to the effect of prorogation on its committees, and Senate standing orders and resolutions of appointment give most Senate committees the power to meet during recess.

What happens on 18 April?

You can lead a horse to water….

At 9.30am on Monday 18 April the Governor-General will re-open a new session of Parliament. This may include some of the ceremony that happens on the first sitting day of a new Parliament.

Then the Senate can do whatever it likes.

In fact, they can immediately move a motion to suspend the Senate to a later date, and as long as at least 39 Senators give it an aye, the Senate shuts down. The Senate is currently structured with 33 from the Coalition, 25 from Labor, 10 Greens and 8 on the crossbench.

But is this likely? We’ll have to wait and see. In any case, suspending the Senate is likely to allow the ABCC Bill to become a Double Dissolution trigger by a failure to pass. It could also allow the Government to claim that their need for a double dissolution is vital to clean out an unruly Senate. 

The history of prorogation of Parliament

For the first couple of decades after federation and regularly since 1993, the Parliament has been prorogued immediately prior to the end of Parliament. This allows the Parliament to end all business. The royal prerogative has also been used on other occasions, but not in recent history. In 1974 and 1977 Parliament was prorogued to allow the Queen to open the new session.

Following the death of Prime Minister Harold Holt in 1968, the Parliament was prorogued to allow the formation of a new ministry.

Do you think the current use of the royal prerogative is unusual? Should we view this creative action by the Prime Minister positively? Whatever you think we’re in for a very interesting few weeks in the lead up to the possible/probably double dissolution election on 2 July. We keep you constitutionally informed. 

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