In the continuing discussions whether a double dissolution will be sought by the government, it is generally assumed that if this is granted and the government returned without a majority in the Senate, it will be at least able to put the ETS legislation to a joint sitting.
This may not be so, and the experience of the Whitlam government illustrates this. After the double dissolution of 1974, the High Court disallowed the passing of one bill which had been the subject of the double dissolution.
This situation can arise where the Governor-General, in good faith, has erroneously concluded that the conditions in section 57 had been fulfilled.
How to deal with a constitutional breach that cannot be undone and that has potentially far-reaching consequences is a difficult question.
The constitutional expert Dr. Twomey recently observed that it is not uncommon for litigants in Australia to argue that there has been some significant and fundamental breach or ‘breach in sovereignty’. This often relates to the signing of the Treaty of Versailles, the appointment of the Governor-General with the "wrong" seal or the passage of the Australia Acts.
It has been argued that this has led to the invalidity of all laws passed for a number of decades. This has included taxation legislation.
While these arguments are usually dismissed by the courts as fanciful, in very rare cases the courts have found that a law, such as one concerning electoral redistributions or the holding of elections, is invalid.
What are the consequences of this? It is clear the consequences will be restricted.
…invalid electoral provisions…
Dr Twomey points to Attorney-General (Commonwealth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1, where a majority of the High Court held that sections 3 and 4 of the Representation Act, 1905 (Cth) were invalid. The consequence was that every election since 1938 had been conducted upon the basis of invalid provisions and potentially invalid electoral boundaries.
The Court dismissed any suggestion that this meant that elections were invalidated, as were the resulting Governments and laws enacted by Parliament.
It did not explain why this was the case.
…double dissolution granted in error….
Dr. Twomey also refers to the opinion of the Chief Justice Sir Garfield Barwick CJ in Victoria v Commonwealth and Connor (1975) 134 CLR 81. The question concerned the potential consequences if the Governor-General had dissolved Parliament under s 57 of the Australian Constitution without the requisite constitutional conditions having been met.
Sir Garfield observed:
“The dissolution itself is a fact which can neither be void nor be undone. If, without having power to do so, the Governor-General did dissolve both Houses, there would be no basis for setting aside the dissolution or for treating it as not having occurred. None the less, the double dissolution would not have been authorized, and therefore it would not satisfy the second paragraph of s 57 and provide a warrant for a joint sitting.
"The joint sitting, pursuant to the third paragraph of that section, which was dependent upon such a dissolution, which, though not void, was not lawful, would not have power to affirm any law. It is not necessary, in my opinion, to regard any part of s 57 as directory in order to conclude that, though the proclamation be unlawful, the sequential dissolution in fact occurred and was incapable of being disregarded, reversed or done."
"Hence an unlawful dissolution was still effective, but although the new Parliament elected pursuant to the dissolution would be valid, at least one consequence would still flow from the unlawful dissolution, being the absence of power to hold a joint sitting.”
…what does this mean?….
In other words, even if the Governor-General grants a double dissolution in error, this cannot be undone. However the bill the subject of the double dissolution cannot be submitted to a subsequent joint sitting.
This may well become a relevant consideration in relation to the government’s current ETS legislation.