Even if the government secures and wins a double dissolution election on the ETS ( the emissions trading scheme or as the government prefers the carbon pollution reduction scheme) and a joint sitting passes the legislation, there are potential constitutional problems.
In 1975, the High Court ruled that one of the bills passed by our one and only joint sitting in 1974, the Petroleum and Minerals Authority Act, should not have been submitted to the sitting. The Court found that the Senate had not failed to pass the bill as the Constitution requires.
Former judge, attorney-general and solicitor-general Robert Ellicott QC points out ( The Australian 10/10) that in that case, Sir Ninian Stephen said:
"Assume that in relation to any bill coming before it the Senate may be seen to have engaged in those customary processes of debate, consideration and, in appropriate cases, inquiry by select committee and the like, which are the familiar practices of parliamentary democracy according to the Westminster model …
"…. assume also that examination does not reveal that in the particular instance there has been such an excessive indulgence in these processes, having regard to all the circumstances, including the importance, complexity and, perhaps, novelty of the measure in question, as will itself indicate that the law-making function has been abandoned in favour of mere dilatory evasion of that function.
" In such a case it cannot, in my view, be said that there has occurred any failure to pass.".
"If advantage be taken of those same processes, designed for the proper consideration by legislators of the propriety and wisdom of measures, for ulterior purposes, for delaying, rather than considering and then passing or rejecting, a proposed law, the Senate will then, in terms of section 57, have failed to pass the proposed law."
Mr. Ellicott asks what then would be the case if the Senate decided, for example, to set up a select committee to examine, make recommendations about and report to the Senate on the proceedings at the Copenhagen climate meeting in December and decided to postpone any further debate until the next session next year.
He believes it would be debatable whether the Senate had failed to pass the legislation and thus justified a double dissolution.
In 1951, the then Governor-General and former NSW Labor Premier, Sir William McKell accepted advice that the reference of a bill by the Senate to a select committee represented a failure to pass. He granted Sir Robert Menzies a double dissolution.
In 1974 the Governor General, Sir Paul Hasluck, granted Mr Whitlam a double dissolution on the basis of six bills including the Petroleum and Minerals Authority Bill. Later that year, after Mr. Whitlam won the election, the new Governor- General, Sir John Kerr, agreed to all bills being determined by a joint sitting.
…and in 2009, who can advise the Governor-General?…
This year, 2009, the Governor-General may be asked to grant a double dissolution because it is said the Senate has failed to pass the ETS legislation.
The question may arise as to whether Her Excellency would be entitled to seek opinions as to whether the constitutional provision has been fulfilled?
Mr. Ellicott believes Her Excellency would be entitled to seek the opinion of outside constitutional experts. Mr. Whitlam thought the Governor-General was restricted to requesting advice provided by the ministers. Sir John Kerr thought otherwise and precedent supports this. As the exercise of the reserve powers is a matter for her discretion, why should she be only advised by the ministers?
It is unlikely that the High Court would entertain an attempt to block the holding of an election or even the submission of a bill to a joint sitting. The exercise of these powers by the representative of the Australian Crown is thought to be non-justiciable; that is beyond the powers of the Court.
But the validity of an Act which has been given the Royal Assent after being approved at a joint sitting can always be challenged.
Finally of course, a government controlling both houses would not have to worry. But if the government did not control the Senate, and if the ETS were validly passed, the crucial regulations could still be disallowed.