Victoria v Commonwealth (September 1975)

Victoria v Commonwealth
Victoria v Commonwealth
Court	High Court of Australia
Full case name	State of Victoria and Ors v Commonwealth of Australia and Ors
Argued	24–27 February 1975; 24 June 1975
Decided	30 September 1975
Citation(s)	[1975] HCA 39, (1975) 134 CLR 81
Case opinions
	(4:2) The Petroleum and Minerals Authority Act 1973 (Cth) was invalid at it did not meet the requirements of a proposed law in s. 57 of the Constitution. (per Barwick CJ, Gibbs, Stephen and Mason JJ; McTiernan and Jacobs JJ dissenting)
Court membership
Judge(s) sitting	Barwick CJ, McTiernan, Gibbs, Stephen, Mason and Jacobs JJ

Last updated June 24, 2019

Victoria v Commonwealth^[1] was an important decision of the High Court of Australia concerning the procedures in section 57 of the Constitution. The decision was one of several by the High Court following the 1974 joint sitting of the Australian Parliament. The High Court held, by majority, that one of the laws passed at the joint sitting - the Petroleum and Minerals Authority Act 1973^[2] - was not valid because the required time had not elapsed between the Senate's first rejection of the law and its being passed a second time by the House of Representatives.

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Chapter I of the Constitution of Australia establishes the Parliament of Australia and its role as the legislative branch of the Government of Australia. The chapter consists of 60 sections which are organised into 5 parts.

The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.

Background

Section 57 of the Constitution provides the procedure for the breaking of deadlocks between the House of Representatives and the Senate:

If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.
If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.
The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen's assent.^[3]

During its first term in office, the Whitlam Government held a majority in the House of Representatives but not the Senate, which twice rejected 10 government bills. On 13 December 1973, the Petroleum and Minerals Authority Bill was passed by the House of Representatives and transmitted to the Senate. The government moved a motion to suspend the Standing Orders to allow the Bill to proceed to passage "without delay". The Senate did not pass the motion and instead adjourned debate to later in the day. One the resumption of debate, the Senate resolved to adjourn the debate to the next sitting day. The Senate then adjourned to a date to be fixed which, in due course, became 28 February 1974.

The Whitlam Government was the federal executive government of Australia led by Prime Minister Gough Whitlam. It was made up of members of the Australian Labor Party. The government commenced when it defeated the McMahon Government in the 1972 federal election after a record 23 years of Coalition government. It concluded in historic circumstances, when it was dismissed by Governor-General Sir John Kerr as a result of the 1975 constitutional crisis and was succeeded by the Fraser Government. The Whitlam Government remains the only federal government in Australian history to be dismissed by either a monarch or viceregal representative.

On 14 February 1974, the Governor-General, Sir Paul Hasluck, prorogued the Parliament until 28 February 1974. Pursuant to the Senate's standing orders, all bills lapsed as a result of the prorogation, subject to the Senate resolving to take up the bill once more.

The Governor-General of the Commonwealth of Australia is the representative of the Australian monarch, currently Queen Elizabeth II. As the Queen is concurrently the monarch of 15 other Commonwealth realms, and resides in the United Kingdom, she, on the advice of her prime minister, appoints a governor-general to carry out constitutional duties within the Commonwealth of Australia. The governor-general has formal presidency over the Federal Executive Council and is commander-in-chief of the Australian Defence Force. The functions of the governor-general include appointing ministers, judges, and ambassadors; giving royal assent to legislation passed by parliament; issuing writs for election; and bestowing Australian honours.

Paul Hasluck Governor-General of Australia

Sir Paul Meernaa Caedwalla Hasluck, was an Australian statesman who served as the 17th Governor-General of Australia, in office from 1969 to 1974. Prior to that, he was a Liberal Party politician, holding ministerial office continuously from 1951 to 1969.

On 7 March 1974, the House of Representatives resolved to send a request to the Senate to resume reconsideration of the Bill. The Senate resumed consideration of the Bill on 19 March 1974 and ultimately rejected it on 2 April 1974.

On 8 April 1974, the House of Representatives again passed the Bill. On 10 April 1974, the Senate adjourned debate on the Bill for 6 months.

On 14 April 1974, the Governor-General dissolved both Houses, citing 6 bills which had been twice rejected by the Senate, including the Petroleum and Minerals Authority Bill. At the double dissolution election in May 1974, the Whitlam government was returned with a slightly reduced majority in the House of Representatives and still without a Senate majority. Following the Senate's further rejection of the bills used as justification for the double dissolution election, an historic joint sitting of the Commonwealth Parliament was convened in August 1974, at which all 6 of the rejected bills which had been cited for the double dissolution were passed.

A double dissolution is a procedure permitted under the Australian Constitution to resolve deadlocks in the bicameral Parliament of Australia between the House of Representatives and the Senate. A double dissolution is the only circumstance in which the entire Senate can be dissolved.

Federal elections were held in Australia on 18 May 1974. All 127 seats in the House of Representatives and all 60 seats in the Senate were up for election, due to a double dissolution. The incumbent Labor Party led by Prime Minister Gough Whitlam defeated the opposition Liberal–Country coalition under Billy Snedden.

A joint sitting of the Australian parliament was convened in 1974, in which members of the Senate and House of Representatives sat together as a single legislative body. The joint sitting was held on 6 and 7 August 1974, following the double dissolution 1974 federal election, and remains the only time that members of both houses of the federal parliament have sat together as a single legislative body pursuant to section 57 of the Constitution.

Argument

The states of Victoria, New South Wales, Queensland and Western Australia commenced proceedings challenging the validity of the Act. They argued that the Bill had been first rejected by the Senate on 2 April 1974 and that, as a result, the required 3 months had not passed before its second passage by the House of Representatives. Therefore, it was argued, the Bill was not one to which section 57 of the Constitution could apply.

Victoria is a state in south-eastern Australia. Victoria is Australia's smallest mainland state and its second-most populous state overall, making it the most densely populated state overall. Most of its population lives concentrated in the area surrounding Port Phillip Bay, which includes the metropolitan area of its state capital and largest city, Melbourne, Australia's second-largest city. Victoria is bordered by Bass Strait and Tasmania to the south, New South Wales to the north, the Tasman Sea to the east, and South Australia to the west.

New South Wales is a state on the east coast of Australia. It borders Queensland to the north, Victoria to the south, and South Australia to the west. Its coast borders the Tasman Sea to the east. The Australian Capital Territory is an enclave within the state. New South Wales' state capital is Sydney, which is also Australia's most populous city. In September 2018, the population of New South Wales was over 8 million, making it Australia's most populous state. Just under two-thirds of the state's population, 5.1 million, live in the Greater Sydney area. Inhabitants of New South Wales are referred to as New South Welshmen.

Queensland is the second-largest and third-most populous state in the Commonwealth of Australia. Situated in the north-east of the country, it is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean. To its north is the Torres Strait, with Papua New Guinea located less than 200 km across it from the mainland. The state is the world's sixth-largest sub-national entity, with an area of 1,852,642 square kilometres (715,309 sq mi).

The Commonwealth made several arguments in defence of the validity of the Act:

that the adjournment of debate on 13 December 1973 was a rejection or failure to pass the law;
that in determining whether the law was rejected or not passed, regard could be had to statements by Opposition senators about their intention to oppose the law;
the interval of 3 months referred to in section 57 is calculated from the first passing of the law by the House of Representatives;
the provisions of section 57 are merely directory, not mandatory;
the issues are non-justiciable.

Decision

All members of the Court wrote separate opinions. All members, other than Justice McTiernan, concluded that the Court had jurisdiction. By majority, the Court held that the Act was invalid as it had not met the requirements of section 57 and so should not have been considered and passed at the joint sitting.

Majority

Chief Justice Barwick and Justices Gibbs, Stephen and Mason held the Act to be invalid. They rejected the Commonwealth's contention that the Senate had failed to pass the Bill when it adjourned on 13 December 1973. Barwick CJ held that the Senate will have failed to pass a bill where the time has come for it to "take a stand with respect to the Bill" and it "merely prevaricates".^[1]^{page 122} He concluded that such time had not been reached on 13 December 1973.^[1]^{pages 123-4} Justice Gibbs held that section 57 permitted the Senate a "reasonable time" to consider a bill transmitted by the House of Representatives and that it was "impossible to hold" that the Senate had failed to pass the Act on 13 December 1973.^[1]^{pages 148-9} Justice Stephen held that the Senate would not have failed to pass a bill as long as it was engaged in the normal process of deliberation upon proposed laws and the deliberative process was not being used for the ulterior purpose of delaying, rather than considering, the proposed law.^[1]^{page 171} Justice Mason also held the test to be one of reasonable time for the Senate to consider the law.^[1]^{page 186}

Dissent

Justices McTiernan and Jacobs dissented. Justice McTiernan held that the question of whether a law met the requirements of section 57 was a political question which could not be decided by the High Court.^[1]^{pages 135-137} Justice Jacobs considered the controversy to be justiciable and held that section 57 gives to the Senate a period of 3 months in which to pass the proposed law and, if it has not done so, then it has "failed to pass the law" with the period of 3 months to be calculated from when it was first open to the Senate to consider the law.^[1]^{pages 195-6}

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References

1 2 3 4 5 6 7 8 Victoria v Commonwealth [1975] HCA 39 , (1975) 134 CLR 81(30 September 1975), High Court (Australia)
↑ Petroleum and Minerals Authority Act 1973 (Cth)
↑ Constitution (Cth) s 57 Disagreement between the Houses.

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[:0-1] 1 2 3 4 5 6 7 8 Victoria v Commonwealth [1975] HCA 39 , (1975) 134 CLR 81(30 September 1975), High Court (Australia)

[2] Petroleum and Minerals Authority Act 1973 (Cth)

[s57-3] Constitution (Cth) s 57 Disagreement between the Houses.