Victoria v The Commonwealth

[1975] HCA 39

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Gibbs, Stephen, Mason and Jacobs JJ.

VICTORIA v. THE COMMONWEALTH AND CONNOR ;

(1975) 134 CLR 81

30 September 1975

Constitutional Law (Cth)

Constitutional Law (Cth)—Parliament of the Commonwealth—Deadlock between Houses—Joint sitting of members of Senate and of House of Representatives—Rejection or failure to pass proposed law by Senate—Interval of three months to elapse before House of Representatives passes proposed law second time—Whether interval measured from Senate's rejection or failure to pass or from first passing by House of Representatives—Proclamation of Governor-General convening joint sitting—Whether conclusive of due compliance with constitutional requirements—Justiciability—Whether requirements mandatory or directory—Royal assent to Bill—Whether a valid Act—The Constitution (63 &64 Vict. c. 12), s. 57—Petroleum and Minerals Authority Act 1973 (Cth).

Decisions

September 30.
The following written reasons for judgment were delivered:-
BARWICK C.J. At a joint sitting of the Senate and the House of Representatives held on 6th August 1974, pursuant to s. 57 of the Australian Constitution, a proposed law entitled "a Bill for an Act to establish a Petroleum and Minerals Authority" (the Bill) was affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives. Subsequently, it was presented to the Governor-General for the Queen's assent, whereupon the Governor-General declared that he assented thereto in the Queen's name. (at p109)

2. The State of Victoria and the Attorney-General for the State of Victoria ("the plaintiffs") have sued in this Court for a declaration that the Bill as thus affirmed, and to which the Queen's assent has been given, is not a valid law of the Commonwealth for the reason that at the time of the joint sitting it was not a "proposed law" within the meaning and operation of s. 57 of the Constitution. (at p109)

3. The plaintiffs claim that, having been passed by the House of Representatives and rejected by the Senate, an interval of three months thereafter had not elapsed before it was again passed by the House of Representatives as required, according to the plaintiff's submission, by s. 57. Accordingly, it was claimed that it was not a proposed law which could properly be submitted to a joint sitting following upon a double dissolution of the Houses of the Parliament. (at p109)

4. No challenge was made in the suit by the plaintiffs to the propriety or the validity of the double dissolution consequent upon which the joint sitting had been held, or to the validity of the joint sitting itself. The question raised was simply that the Senate had not rejected or failed to pass the Bill three months or more before the House of Representatives had again passed the proposed law. Put another way, at the date of the simultaneous dissolution of the House of Representatives and the Senate, the Bill did not satisfy the requirements of the first paragraph of s. 57, and thus could not itself have afforded a reason for that dissolution or be the subject of debate and affirmation at a joint sitting. (at p110)

5. The Commonwealth contested this proposition. Its defence to the suit was that, upon the proper construction of s. 57, the Bill did comply with the description of a proposed law for the purpose of the joint sitting, and that in any case the question raised by the plaintiff was not justiciable. I shall later refer to the detail of this defence. (at p110)

6. The plaintiffs by summons before a Justice of the Court had sought to strike out portions of the statement of defence as being embarrassing and calculated to delay the fair trial of the suit: but the plaintiffs also demurred to the statement of defence. My brother Stephen heard the summons and pursuant to s. 18 of the Judiciary Act 1903-1969 reserved for the consideration of the Court a number of questions as follows:

"1. Whether par. 6(c) of the defendants' defence should be struck out on the ground that the allegations contained therein are, within the meaning of O.20, r.29 of the High Court Rules, unnecessary or may tend to prejudice embarrass or delay the fair trial of the action. 2. Whether the whole of the said defence ought to be struck out pursuant to O.26, r. 18 of the said Rules on the ground that it does not disclose a reasonable answer to the plaintiffs' claim. 3. Whether pursuant to O.26, r.5(2) of the said Rules the issues of fact in the action should be disposed of before the demurrer." (at p110)

7. Each of the States of New South Wales, Queensland and Western Australia commenced similar suits against the Commonwealth for the same declaration of invalidity. The statement of defence to each of the statements of claim in these suits was in substance in the same terms as those in the suit brought by the plaintiffs. Summonses to strike out portions of the pleading were issued on behalf of these three States and came on to be heard before my brother Stephen along with the summons issued by the plaintiffs. In respect of each of those summonses, like questions were submitted to the Court. However, none of these three States demurred to the statement of defence filed in its suit. (at p111)

8. Upon the questions coming on for hearing before the Full Court, it was decided that the proper course was to hear the plaintiffs' demurrer giving each of the other States leave to intervene in the argument thereon. The Court indicated that, in the event that the demurrer was not upheld, the parties would remain in the position in which they presently stood in relation to the pleadings including their ability to amend, subject of course to the consequences of anything the Court might relevantly say in its decision on the demurrer. (at p111)

9. In order to make my reasons comprehensible by a person who does not have a copy of the Constitution of Australia beside him, I think it will be convenient, even at the expense of lengthening the text, to set out the terms of ss. 57 and 58 and part of s. 128 of the Constitution, and at a later stage to set out those portions of the Standing Orders of the Senate to which reference was made in argument and which may have some bearing upon the result of the demurrer. (at p111)

10. Section 57 of the Constitution is as follows:

"57. 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." (at p112)

11. Section 58 is as follows:

"58. When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure. The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation." (at p112)

12. Because of the similarity in the language and also of what I conceive to be the purpose behind its use, it is important to have in mind the provisions of s. 128 of the Constitution which deals with its alteration. (at p112)

13. Section 128 says that the Constitution shall not be altered except in the specified manner. The first paragraph of the section provides for a passage of a proposed law for the alteration of the Constitution by each House. The second paragraph of s. 128 provides as follows:

"But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State qualified to vote for the election of the House of Representatives." (at p112)

14. It is now necessary to recite the relevant chronology. The Bill was passed by the House of Representatives on 12th December 1973. On the next day, the Speaker transmitted the Bill to the Senate with a covering message in accordance with Standing Order 243 of the Standing Orders of the House of Representatives, requesting the concurrence of the Senate in the Bill. (at p113)

15. Standing Order 231 of the Standing Orders of the Senate provides that Public Bills, which this Bill was, coming to the Senate for the first time from the House of Representatives shall be proceeded with in all respects as similar Bills presented in pursuance of Orders of the Senate. (at p113)

16. According to Standing Order 189 of the Standing Orders of the Senate, on receipt of the Bill, the question that the Bill be now read a first time shall immediately be put by the President. This question is to be determined without amendment or debate. Standing Order 191 provides that for the reading of the Bill, the title only shall be read. (at p113)

17. After the first reading a future day is usually appointed upon motion for the second reading of the Bill which, in the meantime, is printed. In the ordinary course, an interval of one day must elapse after the receipt of the Bill from the House of Representatives seeking the concurrence therein of the Senate, before the commencement of a debate on its second reading, and a period of three days is necessary before the Bill could pass all stages. See Standing Orders 192, 197, 211 and 213. (at p113)

18. However, by Standing Order 448, it is provided:

"In cases of urgent necessity, any Standing or Sessional Order or Orders of the Senate may be suspended on Motion, duly made and seconded, without Notice: Provided that such Motion is carried by an absolute majority of the whole number of Senators."

Thus, a motion for the suspension of Standing Orders may be made without notice as under Standing Order 448 where the provisions of that Standing Order apply. If, on the other hand, the motion for suspension is on notice which has appeared on the notice paper, then the motion may be carried by a majority of voices: see Standing Order 449. It is provided by Standing Order 450 that the suspension of Standing Orders shall be limited in its operation to the particular purpose for which such suspension has been sought. (at p113)

19. The 13th December 1973, the day on which the Bill was transmitted by the House of Representatives to the Senate, was the last day on which the Senate was likely to sit in 1973 before adjourning until the Autumn Session: a fact most certainly known to the House of Representatives. It ought to be observed that it is the practice of the Parliament to have two sessional periods each year, an Autumn Session beginning normally in February and a Spring Session beginning in general on some day in August. (at p114)

20. Standing Order 92 of the Standing Orders of the House of Representatives makes provision for an occasion when a Minister may declare that a Bill is an urgent Bill. This declaration, as would a declaration under Senate Standing Order 407B, would open the way to limitation of debate upon its provisions. Whether or not resort was had to this Standing Order of the House of Representatives in relation to the Bill does not appear, though perusal of the parliamentary debates (see Weekly Hansard for the House of Representatives no. 25, 12th December 1973, at pp. 4628, 4633) might suggest that some limitation of debate of the Bill was imposed in the House. (at p114)

21. There is no specific provision in the Standing Orders of either House whereby the House of Representatives may request the Senate to treat a Bill transmitted to it as an urgent Bill. But it may be that a message requesting urgency may be sent by the House to the Senate. (See J.R. Odgers: Australian Senate Practice, 4th ed. (1972), p. 509.) However, no such message was sent. (at p114)

22. However, on the day of the receipt of the Bill the Senate duly resolved to suspend Standing Orders in order to permit the Bill to pass through all its stages "without delay". This resolution of the Senate made it possible for a motion for the second reading of the Bill to be made that day if notice of motion therefor had been given, whereas, but for the suspension of the Standing Orders, no motion for the second reading could have been made until at least the following day. A contingent notice of motion for a second reading of the Bill had been given by a Senator before the receipt of the Bill from the House of Representatives. It was thus possible on 13th December to move the second reading of the Bill. But the Bill was not declared an urgent Bill pursuant to Standing Order 407B of the Standing Orders of the Senate. (at p114)

23. The pleadings show that a motion was made on 13th December by the senator, who was the Leader of the Government in the Senate and who had given contingent notice of that motion, that the Bill be now read a second time. The pleadings further show that the debate upon this motion was adjourned, on the motion of an Opposition senator, its resumption being made an order of the day for a later time that day. It must be understood that it is regular form in the case of a motion not on the order paper for the day, for its consideration to be made an order of the day. (at p114)

24. When the motion was called on in due course on 13th December, there was a motion by the Opposition that the debate on the motion be adjourned and the resumption of the debate be an order of the day for the first sitting day in February 1974. Standing Order 434 provides that a debate may be adjourned either to a later hour of the same day, or to any other day. Standing Order 435 provides that the Senator, upon whose motion any debate is adjourned, shall be entitled to pre-audience on the resumption of the debate. The securing by the Opposition of the adjournment of the debate of a motion by a Minister or Government senator for a second reading is standard parliamentary practice. The mover of the motion for a second reading may explain the principle of the Bill unless he feels that, as it has come from the other House, its purposes are already sufficiently known. In the case of the Bill, the text of the second reading speech in the House of Representatives was by leave incorporated in the proceedings of the Senate. The adjournment of the debate is to enable members or senators, as the case may be, to consider the provisions of the Bill and to prepare for debate. It is said to be customary for the selection of the day for the resumption of the debate to be the privilege of the mover of the motion for the second reading. In this instance the debate was adjourned to a day nominated by an Opposition senator. But nothing, in my opinion, turns on this departure from practice, if indeed it should be regarded as such. (at p115)

25. According to the assertions of fact in the statement of defence, which upon demurrer must be taken to have been admitted for the purposes of demurrer, certain statements were made by individual members of the Senate during proceedings on 13th December. Two sub-paragraphs of par. 6 of the statement of defence sufficiently indicate the general nature of these assertions:

"(c)(ii) The statements of opinion and intention expressed in pars (iii) to (xxix) hereof were the opinions and intentions held by all members of the Opposition parties in the Senate on 13th December 1973 as well as prior to and after that date and were on 13th December 1973 given effect to by the resolution referred to in par. 10 of the statement of claim. (c)(iii) Upon the resumption in the Senate of the debate upon the motion (as alleged in par. 10 of the statement of claim), at a later hour of the day, namely 13th December 1973, the said Senator Durack said in the Senate the words following, that is to say - 'As I think is probably well known, it is the intention of the Liberal Party Opposition to oppose totally this Bill, and it will be voting against it.'" (at p116)

26. In the sub-pars referred to, in (c)(ii) above there are a number of statements attributed to party leaders in the Senate to the effect that it was the Opposition's intention by rejection of certain measures to pave the way for a double dissolution. It was these assertions of fact which were sought to be struck out of the statement of defence: see the first question reserved for the consideration of the Full Court. (at p116)

27. On 13th December 1973 the Senate resolved that at its rising that day, the Senate be adjourned to a day and hour to be fixed by the President, such day and hour to be notified to each senator by telegram or letter. This is the usual course taken on the adjournment of the Senate to the next sessional period. In fact, the day subsequently fixed for the resumption of the Senate was 28th February 1974. (at p116)

28. On 14th February 1974 the Governor-General duly prorogued the Parliament till 28th February 1974. On the prorogation of the Parliament, Bills then before the House and then before the Senate lapsed, but might be proceeded with and restored to the notice paper by resolution of the House in possession of the Bill and when in receipt of the consent of the originating House. (See Odgers, op. cit., at p. 288.) (at p116)

29. On 7th March 1974 the House of Representatives resolved that a message be sent to the Senate requesting the Senate to resume consideration of the Bill. Accordingly, such a message was sent to and received by the Senate, the message including the statement "the proceedings on such Bill having been interrupted by the Prorogation of the Parliament" (see Standing Order 243). The Senate concurred in the resumption of the consideration of the Bill. Consequently, the motion for the second reading of the Bill was debated by the Senate on and after 19th March. On 2nd April, the Senate negatived the motion. On 8th April, the House of Representatives again passed the Bill, which on the same day was transmitted to the Senate for its concurrence. On 10th April, upon a motion made on 8th April for a second reading of the Bill, the Senate resolved that the Bill for a number of reasons be deferred "till this day six months": see Standing Order 194 of the Standing Orders of the Senate. The Bill was thus finally rejected by the Senate on 10th April 1974. (at p116)

30. I have now sufficiently set out the relevant chronology. (at p116)

31. The plaintiffs submit that upon the true construction of s. 57, the interval of three months referred to in the first paragraph of the section is a period which begins at the time at which the Senate rejects, or fails to pass, or passes with amendments which ultimately proved unacceptable to the House of Representatives; that the Senate had not rejected the Bill, failed to pass it or passed it with unacceptable amendments before 2nd April 1974; and that, unless the interval of three months had elapsed thereafter before the House again passed the Bill, it would not qualify as a proposed law for the purposes of the third paragraph of s. 57. (at p117)

32. The submissions of the defendants are:

"(A) That the resolutions and orders of the Senate on 13th December 1973 without more may amount to a rejection or failure by it to pass the proposed law. (B) That in determining whether the Senate rejected or failed to pass any proposed law regard may be had not only to any relevant resolutions of the Senate but to all relevant facts. Speeches of senators within the Senate may be such. Statements whether by senators or others outside the Senate may also be relevant. All the sub-paragraphs of par. 6(c) of the defence contain relevant facts. (C) That the interval of three months referred to in s. 57 is from the first passing of the proposed law by the House of Representatives. (D) That the words of condition in the first paragraph of s. 57 are used in a directory sense. (E) Statement of claim raises non-justiciable issues." (at p117)

33. The Commonwealth in the last submission advanced an argument of great significance. The submission was that this Court has no power to declare that a law which had not been passed in accordance with the law-making requirements of s. 57 of the Constitution was invalid, a submission somewhat akin to, though not identical with, but of like consequence to, a submission which had been made by the Commonwealth in Cormack v. Cope (1974) 131 CLR 432 . (at p117)

34. It is as well that I should deal, first, with this large proposition of the Commonwealth. It was, of course, conceded that the Court may declare invalid a law which does not fall within one of the topics assigned to the Parliament by the Constitution. But it was claimed that as long as an Act has received the Royal assent the Court cannot entertain the question whether it was passed in accordance with the constitutional requirements relating to the law-making processes. The argument had two distinct bases: first, that the question whether the constitutional law-making processes had been followed is not in any case a justiciable matter; second, that the decision of the Governor-General that the Bill was a proposed law within the operation of s. 57, a decision to be implied from his assent to the Bill, was decisive and unexaminable by the Court. There was another somewhat cognate submission, namely, that in any case the provisions of s. 57 are directory only, so that failure to observe them will not produce invalidity. (at p118)

35. The argument presented on behalf of the Commonwealth in the interlocutory proceedings in Cormack v. Cope was of a different kind, though, as I have said, bent to the same conclusion as to the Court's competence. It was not repeated in terms in this case and in any case, for my part, it is sufficiently dealt with in that case. But the undeniable assertion there made that this Court is the guardian of the Constitution, and the authorities there cited, are fully relevant to the resolution of the submissions made in this case. Part of that Constitution provides for law-making processes. Section 57 is a notable example of that prescription. The Court, in my opinion, not only has the power but, when approached by a litigant with a proper interest so to do, has the duty to examine whether or not the law-making process prescribed by the Constitution has been followed and, if it has not, to declare that that which has emerged with the appearance of an Act, though having received the Royal assent, is not a valid law of the Commonwealth. Whether the Court should intervene before the Bill has received the Royal assent is a matter which does not now arise. I have already expressed my opinion that the Court has power to do so. Indeed, the Supreme Court of New South Wales did intervene before assent in Trethowan v. Peden (1930) 31 SR (NSW) 183 without any dissent by the Privy Council. So much was also conceded in McDonald v. Cain (1953) VLR 411, at pp 419, 426, 438 . However, I would like to add that I agree entirely with Lord Diplock in his view of the observations made in Clayton v. Heffron (1960) 105 CLR 214, at p 235 . It is one thing by judicial restraint not to exercise a power, and quite another thing to deny the existence of the power. I agree with his Lordship when he says in substance that the decision not to exercise a power in point of discretion is indeed an exercise of the power. See Rediffusion (Hong Kong) Ltd. v. Attorney-General (Hong Kong) (1970) AC 1136, at p 1156 . (at p118)

36. But the Bill has received Royal assent. The majority of the Justices who participated in Cormack v. Cope (1974) 131 CLR 432 clearly were of opinion that when a Bill affirmed at a joint sitting had received the assent, it could be declared invalid by the Court if the provisions of s. 57 had not been observed. In my reasons for judgment in Cormack v. Cope (1974) 131 CLR, at p 452 . I referred to the authoritative statement of Lord Pearce in Bribery Commissioner V. Pedrick Ranasinghe (1965) AC 172, at p 198 . I have no need to repeat what I there said or cited. Nor is there need, in my opinion, for further citation, though I should remark that nothing said in Clayton V. Heffron (1960) 105 CLR 214 , in my opinion, casts any doubt on the Court's power to declare the invalidity of that which does not conform to Constitutional requirements. (at p119)

37. The defendants' further submission was that the "decision" of the Governor-General that the Bill was one which could be affirmed at the joint sitting and, thereafter, that it was proper for the receipt of the Royal assent, was not examinable by the Court and was decisive of the validity of the Act. In other words, it was submitted that the Governor-General had the power unexaminably to decide whether or not the conditions of s. 57 had been satisfied. With that submission I express my complete disagreement. The powers given to the Governor-General by s. 57 are statutory powers - the statute being an organic instrument - conditioned on the existence of facts. Any prerogatives in relation to the dissolution of Parliament which otherwise have been thought to exist would be conditioned and controlled by the express terms of the Constitution. They are not in any wise conditioned on the Governor-General's opinion as to the facts. I can see no basis on which the Constitution can be read as giving the Governor-General a power to decide the facts on which the legality of his own actions or the validity of an Act may depend. Of course, the Governor-General must form a view for himself as to whether the circumstances of the proposed law satisfy the requirements of the first paragraph of s. 57. But his power is contingent on the existence in fact of the conditions which that paragraph expresses: in my opinion, the power to decide the fact is reposed in this Court and in this Court alone. That is a facet of the undoubted position of the Court as the guardian of the Constitution. (at p119)

38. The defendants made a related submission that the terms of s. 57 are directory only. But there is no room, in my opinion, for the view that the terms of s. 57 are merely directory so that failure to conform to its requirements will not affect the validity of what is done. What is laid down in s. 57 is a process of law-making, and s. 57 is a provision of the Constitution. It is quite inappropriate, in my opinion, to apply to such a section the distinctions between a directory and a mandatory statutory provision. The Court's decision in Clayton v. Heffron does not support a contrary conclusion: nor does the reasoning of the majority. (at p120)

39. Argument was presented to the Court as to what would be involved when the Governor-General dissolved the House without having the power so to do under the Constitution: that is to say, if he erroneously concluded that the conditions existed on which his power to dissolve depended. 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 undone. (at p120)

40. The Court, in my opinion, has jurisdiction to entertain this suit and, if the occasion is proper, to make a declaration of validity or of invalidity as the case may be. (at p120)

41. I turn next to the question whether the Senate on 13th December 1973 failed to pass the Bill. The argument for the Commonwealth really treats the Senate's adjournment on 13th December of the debate of the motion for a second reading of the Bill as no more than a prevarication. To the fact of the adjournment are added a number of circumstances. To these I shall immediately make reference. (at p120)

42. A minor matter amongst these circumstances was the suggested failure of the Senate to give effect to the word "now" in the motion that the Bill be now read the second time. But the criticism was misconceived. The first step in the process of a second reading of a Bill is a notice of motion. Then the motion is entered on the order paper. (at p120)

43. When called on, the motion is debated to a conclusion either on one occasion, or after one or more adjournments of the debate of the motion. When the time comes to put the question which the motion raises, that is to say, when further debate is not desired or after a resolution that the question be put, the question that is put by the Presiding Officer is that the Bill be now read a second time; that is to say, the word "now" relates to the point of time at which the question is put; it gets its only significance from that point of time. On the motion being carried, the Clerk then reads the title of the Bill (Standing Order 191). (at p121)

44. There was also some discussion in argument as to what was the effect of an amendment to the motion to remove the word "now". Standing Order 194 provides that amendment may be made to a motion that the Bill be now read a second time by leaving out the word "now" and adding the words "this day six months" which, if carried, shall finally dispose of the Bill. Standing Order 195 provides that no other amendment may be made to such a motion except in the form of a resolution which is strictly relevant to the Bill; i.e. to its operative provisions. Thus, there is no ability to change the form of the question to be put on the motion for a second reading other than an amendment which would kill the Bill. (at p121)

45. Nothing in the course of procedure in the Senate on 13th December lends any support, in my opinion, to the proposition that the Senate failed to pass the Bill on 13th December. (at p121)

46. In its approach to the question whether the Senate had failed in the relevant sense to pass the Bill on 13th December, the Commonwealth consistently asserted that the purpose of s. 57 was to enable the will of the House of Representatives always, and, indeed inevitably, to prevail, and from this it seemed to be suggested that the House of Representatives was entitled to an immediate answer from the Senate when on 13th December it sought the Senate's concurrence to the Bill. (at p121)

47. It seems to me that this submission is untenable. The Senate is a part of the Parliament and, except as to laws appropriating revenue or money for the ordinary annual services of the Government or imposing taxation, is co-equal with the House of Representatives. Bills may originate and do originate in the Senate. Section 53 of the Constitution makes it abundantly clear that the Senate is to have equal powers with the House of Representatives in respect of all laws other than those specifically excepted. The only limitations as to the equality of the powers of the Senate with those of the House of Representatives are those imposed by the first three paragraphs of that section, to the terms of which the limitations must be confined. (at p121)

48. It is evident from the terms of the Constitution that the Senate was intended to represent the States, parts of the Commonwealth, as distinct from the House of Representatives which represents the electors throughout Australia. It is often said that the Senate has, in this respect, failed of its purpose. This may be so, due partly to the party system and to the nature of the electoral system: but even if that assertion be true it does not detract from the constitutional position that it was inended that proposed laws could be considered by the Senate from a point of view different from that which the House of Representatives may take. The Senate is not a mere house of review: rather it is a house which may examine a proposed law from a stand-point different from that which the House of Representatives may have taken. (at p122)

49. That a Bill needs consideration and debate is beyond question, though one cannot but observe that due to the dominance of the executive in the House of Representatives and perhaps, at times, in the Senate, opportunity for debate may be very attenuated. But, whatever the exigencies of party politics, the Constitution cannot be read as if laws ought to be passed by the Senate without debate, or as if the House of Representatives may in any respect command the Senate in relation to a Bill. Thus, in approaching the meaning of the word "fails" in s. 57, it must be borne in mind that the Senate is both entitled and bound to consider a proposed law and to have a proper opportunity for debate and that its concurrence, apart from the provisions of s. 57, is indispensable to a valid act of the Parliament. (at p122)

50. It seems to me that the word "fails" in s. 57 involves the notion that a time has arrived when, even allowing for the deliberative processes of the Senate, the Senate ought to answer whether or not it will pass the Bill or make amendments to it for the consideration of the House: that the time has arrived for the Senate to take a stand with respect to the Bill. If that time has arrived and the Senate rather than take a stand merely prevaricates, it can properly be said at that time to have failed to pass the Bill. In considering whether such a time has arrived, it may be that antecedent conduct of the Senate, particularly in relation to the proposed law, may be relevant. But it will be the conduct of the Senate itself and not the conduct or opinions or anticipatory statements of individual senators, whatever may be their party standing or party authority, which can have any relevance to the question whether, the situation having been reached where the Senate is called upon to give an answer on the Bill, it has failed to pass it. (at p122)

51. There is no need for any lengthy discussion of the Commonwealth's submission that the statements of individual senators as set out in the statement of defence are both relevant and definitive in the consideration of the question whether the Senate failed on 13th December to pass the Bill. Even if the senators who spoke did so for a majority of senators, they did not speak for the Senate. It is the Senate's failure which is operative under s. 57. The intention of senators to procure such a failure cannot be an equivalent or a substitute for the action of the Senate itself. (at p123)

52. The Solicitor-General fastened upon cautious expressions in Attorney-General (Alberta) v. Attorney-General (Canada) (1939) AC 117, at p 131 , as if they constituted authority for the proposition that the expressed intention of the members of a deliberative assembly to induce or secure some act of the assembly itself were relevant to the question whether that assembly had performed that act. It is enough to say that I am quite unable to so regard the words upon which the Solicitor-General seeks to hang so much; nor would I be inclined, in any case, to treat as authority such tentative remarks made alio intuitu so far as concerns the present question. In my opinion, the statements attributed to the individual senators are neither relevant to, nor definitive of, the question whether on 13th December the Senate failed to pass the Bill. (at p123)

53. In order to deny that the Senate has failed to pass the Bill, it may not be enough to say that all the processes available to the Senate in the consideration of a Bill have not been exhausted. It may be that even before those processes are exhausted the Senate may fail to pass within the meaning of s. 57. In 1951 the reference of the Commonwealth Banking Bill to a select committee did not prevent the conclusion that the Senate had failed to pass, having regard to its entire conduct in regard to the Bill. It was said that the reference to the select committee in the particular circumstances was no more than prevarication. On other occasions and in different circumstances, the same conclusion perhaps may not be drawn from a reference of a Bill to a select committee. (at p123)

54. However, I have no doubt that it cannot properly be said that when the Senate resolved on 13th December 1973 to adjourn the debate on the motion for a second reading until in effect the next sitting day, it had failed to pass the Bill. In my opinion, it could not be said that the time had arrived that day where the Senate was in any sense obliged to express itself definitively on the Bill. The concept of failure to pass must, it seems to me, mean more than "not pass". Failure in this sense imports, as I have said, the notion of the presence of an obligation as a House to take a definitive stand. (at p123)

55. My conclusion therefore is that the Senate did not fail to pass the proposed law on 13th December 1973 within the meaning and operation of s. 57 of the Constitution. The adjournment by the Senate of the debate until what was in effect the next day of sitting cannot be said, in my opinion, to have been a mere prevarication. Indeed, the suspension of Standing Orders to allow of the making of the motion for a second reading, scarce portends an intention to prevaricate. (at p124)

56. The next question is whether or not the period of three months in the first paragraph of s. 57 is to run from the date of the Senate's relevant treatment of the Bill, or whether it runs from the first passage of the Bill by the House of Representatives. Reading s. 57 as a piece of English, I am unable to see any basis upon which the words "if after an interval of three months" could be referable other than to the action of the Senate. There are two conditions the existence of which in fact warrant the Governor-General dissolving the Senate and the House of Representatives at the same time. The first is that the House of Representatives has passed a proposed law and that the Senate has rejected it, failed to pass it, or passed it with unacceptable amendments. That, it seems to me, is one composite condition of the power to dissolve. There is then a second condition: it is a different and an additional condition. It is that after the first condition has been fulfilled, the House in due time passes the law again and the Senate again rejects it, fails to pass it, or passes it with unacceptable amendment. The second condition is composite having two elements as has the first condition. The natural reading of the language is that a period of three months separates the existence in fact of the two conditions. (at p124)

57. But, apart from reading the section as a piece of English, the purpose behind the section, it seems to me, is to fix a period of time after the Senate has considered the law and taken up a definitive position with respect to it, during which the House of Representatives should have time to consider, no doubt in the light of what has been said in debate in the Senate, whether the law should go forward again. Also, the decision of the Senate whether it should maintain its former attitude to the Bill may well be affected by the lapse of time. I cannot see any policy which would be satisfied by annexing the interval of three months to the first passage of the proposed law by the House of Representatives. I find no assistance in the construction of s. 57 in this respect from consideration of constitutions derived elsewhere designed to prevent the frustration of the purposes of a lower House by obduracy on the part of an upper House or second chamber. (at p124)

58. If one observes the processes which may be followed where the Senate amends a proposed law, it is immediately apparent that, with the utmost of goodwill between the two Houses, more than three months may elapse in the course of a negotiation between the House and the Senate as to the amendments. See, in this connexion, Standing Orders 236, 237 and 238. The expression in s. 57 is "passes it with amendments to which the House of Representatives will not agree". Those words would not, in my opinion and with due respect to a contrary opinion attributed to Sir Kenneth Bailey, necessarily be satisfied by the amendments made in the first place by the Senate. At the least, the attitude of the House of Representatives to the amendments must be decided and, I would think, must be made known before the interval of three months could begin. But the House of Representatives, having indicated in messages to the Senate why it will not agree, may of course find that the Senate concurs in its view so expressed, or there may be some modification thereafter of the amendments made by the Senate which in due course may be acceptable to the House of Representatives. It cannot be said, in my opinion, that there are amendments to which the House of Representatives will not agree until the processes which parliamentary procedure provides have been explored: see, generally, Odgers, op. cit., pp. 272, 278. These considerations, in my opinion, reinforce the view that the submission that the interval mentioned in s. 57 commences at the time of the first passage of the Bill, is unacceptable. (at p125)

59. A principal argument advanced by the defendants in favour of what I consider to be an unnatural reading of the section is the argument with which I have already dealt, namely, that the intention of s. 57 was to secure the effectiveness of the will of the House of Representatives in any event. But, it seems to me, such a proposition cannot survive analysis. There is no question that the first paragraph of s. 57 gives the House of Representatives the initiative both in the formulation of the proposed law and in its re-enactment after an interval of three months, but the purpose of a double dissolution is not to ensure that the will of the House prevails. Rather it is a means by which the electorate can express itself and perhaps thus resolve the "deadlock" which has been demonstrated to exist between the House and the Senate. Whether the House of Representatives returns after a double dissolution with the same majority as aforetime is a matter for the electorate: nothing in the section bears on that question. Further, the purpose of the joint sitting if the "deadlock" continues is not to secure the will of the House of Representatives. It is to secure the view of the absolute majority of the total number of the members of both Houses, which may or may not represent the will of the House of Representatives. It is little to the point that it may generally be expected that the members of the more numerous House will carry the day in a joint sitting. But that is not a necessary consequence. This argument on the construction of s. 57 which the Crown puts forward is, in my opinion, untenable. (at p126)

60. I should interpolate here a brief reference to a submission by the Commonwealth that the "proposed law as last proposed by the House of Representatives" of which the third paragraph of s. 57 speaks need not have "complied" with the requirements of the first paragraph of the section. In my opinion, there is no substance in the suggestion. Clearly, in my opinion, the section, though it provides for various stages in the process, relates to the passage into law of the proposed law mentioned in the first line of the section. In my opinion, only a proposed law which had passed through the stages prescribed in both the first and second paragraphs of s. 57 could be deliberated upon and affirmed at a joint sitting. (at p126)

61. In my opinion, the requirements of the first paragraph of s. 57 were not satisfied in relation to the Bill. The Senate had not failed to pass it on 13th December 1973, and the interval of three months from the date of the Senate's rejection of the Bill which should have elapsed before the House of Representatives again passed the proposed law did not elapse. A consequence is that, had there been no other proposed laws which satisfied the provisions of s. 57, the Governor-General would not have had authority to dissolve the Senate and the House of Representatives simultaneously merely because of what occurred in the Senate on 13th December 1973 in relation to the Bill. (at p126)

62. I therefore conclude that the Bill, though assented to by the Governor-General, is not a valid law of the Commonwealth. The demurrer should be upheld. It is appropriate in the circumstances of the case that the action should be dismissed. It becomes unnecessary to answer the questions reserved for the consideration of the Full Court. The summons to strike out portion of the statement of defence could now be dismissed by the Justice who heard the summons, the costs of the summons to be in his discretion. (at p126)

63. The actions brought by the three States other than the plaintiff state are not before us except to the extent of the questions reserved for the Court's consideration. In my opinion, there is now no need for the Court specifically to answer the questions. The matter in the case of those States can best be dealt with by remitting them to the Justice who heard the summons. No doubt, having regard to the Court's decision on the demurrer, the actions brought by the three States will be dismissed by consent. (at p127)

McTIERNAN J. The plaintiffs are the State of Victoria, which is a body politic, and the Attorney-General of the State. Section 62 of the Judiciary Act provides that suits on behalf of a State may be brought in the name of the State by the Attorney-General of the State, or by any person appointed by him in that behalf. It does not appear from the statement of claim why this suit is brought in the name of the State and in the name of the Attorney-General. (at p127)

2. The plaintiffs claim, by the prayer in the statement of claim, the following relief: 1. A declaration that the Petroleum and Minerals Authority Act 1973 is not a valid law of the Commonwealth. 2. A declaration that this Act was not "duly" passed by the Parliament of the Commonwealth in accordance with s. 57 of the Constitution. (at p127)

3. The declarations sought are declarations of right as against the Commonwealth and a Minister of State for the Commonwealth, the defendants. An injunction is claimed against the Minister. (at p127)

4. The first claim is ambiguous. It may mean that the Act is not a valid law because it exceeds the power of the Parliament or because it was not duly passed by the Parliament. There is no allegation in the statement of claim that the Act is ultra vires. The statement of claim gives an account of the legislative process by which a Bill for the Act in question became law. It appears that the Bill originated in the House of Representatives. The Bill was a "proposed law" passed by the House of Representatives. It was sent to the Senate on 13th December 1973, the day after the Bill passed the House of Representatives. The motion that the Bill be read a second time was moved in the Senate in December 1973. The Senate did not agree to that motion. The debate on the motion was interrupted by a motion that the debate be adjourned and upon the resumption in the Senate of the debate, the statement of claim says, "it was ordered that the debate be adjourned and that the resumption of the debate be an Order of the Day for the first sitting day in February 1974". (at p127)

5. The statement of claim contains the text of a proclamation which it says was issued by the Governor-General on 13th February 1974. By this proclamation the Parliament was prorogued until 28th February 1974. Standing Order 264 of the Standing Orders of the House of Representatives says, "Any bill which lapses by reasons of prorogation before it has reached its final stage may be proceeded with in the next ensuing session at the stage it had reached in the preceding session ...". Standing Order 243 of the Standing Orders of the Senate contains a provision similar to that just quoted, applying to any public Bill. The Bill here in question was of course a public Bill. It is disclosed by the statement that the "next ensuing session" commenced on 28th February 1974. (at p128)

6. The debate on the adjourned motion that the Bill be read a second time was resumed in the Senate on 19th March 1974. The statement of claim says, "On 2nd April the Senate negatived the motion ...". It is said in par. 8 of the statement of claim that the motion moved in the Senate was that the said Bill be read a second time. It is said in par. 4 of the defence that the motion referred to in par. 8 of the statement of claim was in the following words: "That this Bill be now read a second time", and in par. 8 of the defence that the motion put to the Senate and negatived by the Senate was in those words (see Halsbury's Laws of England, 3rd ed., vol. 28, p. 377). The motion for the second reading which the Minister moved was in the usual form according to parliamentary practice. (at p128)

7. It is shown by the statement of claim that the House of Representatives passed a Bill (the proposed law in question) on 8th April 1974 and on that date sent the usual message to the Senate requesting the Senate's concurrence in the Bill, that the Bill reached the second reading stage on 8th April 1974; and, a motion having been proposed "that the said Bill be read a second time", the Senate passed another motion, namely that the debate on the motion for the second reading be adjourned. It is shown by the statement of claim that the motion which was finally passed rejected the motion for the second reading and the Senate passed a motion which reads as follows:

"The Bill be deferred till this day six months because - (1) this Bill was defeated in the Senate on 2nd April 1974, which is only one week ago; (2) this Bill is introduced not to allow for further consideration and debate, but simply for statistical purposes; and (3) the Government introducing the same Bills on a number of occasions on the one subject matter, seeks to mislead the Australian people as to the actual numbers of matters opposed and defeated by the Opposition. The Senate is part of the legislative process of this Nation and it should not be abused and used as a scoreboard by the Government for political purposes." (at p129)

8. The statement of claim in par. 28 sets out the text of a proclamation which was made by the Governor-General, with the advice of the Prime Minister. This proclamation recites the conditions upon the fulfilment of which s. 57 of the Constitution says the Governor-General may dissolve the Senate and the House of Representatives. The proclamation contains an averment that those conditions had been fulfilled in respect of several proposed laws entitled - Commonwealth Electoral Act (No. 2) 1973, Senate (Representation of Territories) Act 1973, Representation Act 1973, Health Insurance Commission Act 1973, Petroleum and Minerals Authority Act 1973. Following the averment the proclamation continues: "Now therefore, I (The Governor-General in office) do by this my Proclamation dissolve the House of Representatives." (at p129)

9. The opponents of the Bill in the Senate challenged the motion that the Bill be read a second time by voting for the motion, emanating from the Opposition, that the Bill be deferred for six months. The Opposition's reasons for supporting this motion for deferment of the Bill would seem to be odd when it is seen to be one of six "proposed laws" in respect of which the Governor-General dissolved the Senate and House of Representatives as a step in the constitutional means provided in s. 57 for resolving disagreements between the Senate and the House of Representatives over Bills originating in the latter. (at p129)

10. The statement of claim continues the parliamentary history of the proposed law after the election of a new Parliament. This history includes that on 11th July 1974 the Bill (the proposed law, the subject of this suit) was again passed by the House of Representatives. This is stated in par. 30, but what happened to the Bill in the Senate is not mentioned. Paragraph 14 of the defence states that on 11th July 1974 after the Bill was sent to the Senate from the House of Representatives, in due course it was moved on that day: "That the Bill be now read a second time" and that the Senate resolved the said question in the negative. (at p129)

11. Section 57 of the Constitution provides that if after a dissolution of the Senate and House of Representatives under this section, "The House of Representatives again passes the proposed law ... and the Senate rejects or fails to pass it ... the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives". (at p129)

12. It is stated in par. 31 of the statement of claim that on 30th July the Governor-General issued a proclamation. The text of the proclamation is set out. The body of the proclamation is as follows:

"WHEREAS a Proclamation made on 11 April 1974 by the Governor-General of Australia then holding office recited that the conditions upon which the Governor-General is empowered by s. 57 of the Constitution to dissolve the Senate and the House of Representatives simultaneously had been fulfilled in respect of the several proposed laws intituled: Commonwealth Electoral Act (No. 2) 1973, Senate (Representation of Territories) Act 1973, Representation Act 1973, Health Insurance Commission Act 1973, Health Insurance Act 1973, Petroleum and Minerals Authority Act 1973: AND WHEREAS by the said Proclamation, the said Governor-General dissolved the Senate and the House of Representatives accordingly:" (at p130)

13. The proclamation was issued with the advice of the Governor-General. (at p130)

14. Section 50 of the Constitution provides:

"Each House of the Parliament may make rules and orders with respect to - ... (ii) The order and conduct of its business and proceedings either separately or jointly with the other House." (at p130)

15. Joint Standing Orders were made. The Senate Standing Orders and the House of Representatives Standing Orders contain standing orders applicable to Disagreement Between The Houses. (Constitution, s. 57.) It is provided in these Standing Orders that "The member chosen to preside shall present to the Governor-General for the Royal Assent any proposed law duly passed at such joint sitting". (at p130)

16. The Rules for the joint sitting convened by the proclamation mentioned above were adopted on 1st August 1974. Rule 11 reads:

"Question on proposed law (a) The question to be put from the Chair upon any proposed
law before the joint sitting shall be, 'That the proposed law be affirmed', and a division shall be taken on that question.

(b) The question that any proposed law be affirmed shall be resolved in the affirmative if, and only if, an absolute majority of the total number of the members of the Senate and House of Representatives vote in the affirmative." (at p130)

17. After the citation of the proclamation the statement of claim says:

"32. On the 7th August 1974 a joint sitting of the members of the Senate and of the House of Representatives (which is hereinafter called "the said joint sitting") resolved to affirm the said Bill. 33. On the 8th August 1974 His Excellency the Governor-General declared the Queen's Assent to the said Bill." (at p131)

18. Paragraph 15 of the defence says in answer to par. 32, inter alia:

"(vi) The Chairman called on the Sixth proposed Law named in the Proclamation viz. Petroleum and Minerals Authority Act 1973 and pursuant to rule 11 proposed the question - that the proposed Law be affirmed. (vii) The question that the proposed Law be affirmed was put. The Joint Sitting voted upon the said question, the members present voting together thereon. Ninety-five members of the House of Representatives and the Senate voted in favour of the question in the said Joint Sitting. Ninety-one members of the Senate and the House of Representatives in the Joint Sitting voted against the said question. The question was so resolved, in the affirmative. (viii) The Chairman thereupon declared the proposed law affirmed by an absolute majority of the total number of members of the Senate and of the House of Representatives as required by s. 57 of the Constitution." (at p131)

19. It is not alleged in the statement of claim that any member of the House of Representatives or of the Senate made any objection to the putting of the question from the chair that the proposed law intituled Petroleum and Minerals Authority Act 1973 be affirmed. The matters pleaded as to the process of law making in the joint sitting in fact satisfy the provisions of s. 57 relating to a joint sitting. This provision reads:

"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." (at p131)

20. Royal assent was given to the "proposed law" in question in accordance with s. 58 of the Constitution. This section applies "when a proposed law passed by both Houses of Parliament is presented to the Governor-General for the Queen's Assent". (at p132)

21. The plaintiffs' challenge to the validity of the statute, the Petroleum and Minerals Authority Act 1973, and their claim for a declaratory judgment is based on allegations in the statement of claim. These allegations are the proclamation, which dissolved the Senate and House of Representatives, "was void and is of no effect" to the extent that it referred to the "proposed law" for this Statute; the proclamation convening the joint sitting "was void and is of no effect", alternatively "to the extent that it referred to the said proposed law"; the joint sitting had "no power to vote" on the Bill (the proposed law); the resolution of the joint sitting affirming the proposed law "was void and is of no effect"; the Royal assent to the proposed law "is of no effect". (at p132)

22. The proclamation dissolving the Senate and the House of Representatives or the proclamation convening the joint sitting does not on its face show that the Governor-General did not comply with s. 57 of the Constitution. In my opinion the Governor-General may dissolve the Senate and the House of Representatives where there is disagreement according to the criteria of s. 57 over a number of proposed laws and convene a joint sitting to deliberate on as many of them as the House of Representatives of the new Parliament passes and the Senate of the new Parliament rejects or fails to pass. (at p132)

19. These considerations lead me to the conclusion that s. 57 allows to the Senate a period of three months from the time when it is first open to it to consider a proposed law passed by the House of Representatives. So long as it does not pass the proposed law it is in a state or condition of failing to pass it. If during a period of three months it does not pass the proposed law then throughout the whole of the period it has failed to pass it. The failure extends from the commencement of a state of affairs when the House of Representatives has passed the proposed law and has sent the proposed law to the Senate. (at p196)

20. The contrary view, that the interval of three months extends only from the time when the Senate by ascertainable act or omission fails to pass, appears to me to lead to very considerable difficulties and uncertainties in construction and application of the section. First, it requires that some moment of time be discovered when it can definitively be said that the Senate has failed to pass the proposed law, some particular day from which the interval of three months can in that event be calculated. The ascertainment of this day could be fraught with difficulty. It is not enough to say that the House of Representatives should allow a good margin before passing the proposed law a second time. Reasons of great national interest may dictate otherwise and the Constitution must speak unequivocally. A corollary to this objection is that on such a construction of the section the House of Representatives, before it can pass the proposed law again for the purposes of the section, must examine the conduct of the Senate and determine whether three months have passed since the Senate "failed to pass" the proposed law. It would be an invidious inquiry and determination and, what is more, if this litigation raises any justiciable issue at all, it would be an inquiry and determination on a factual situation in respect of which on the same or on additional facts propounded in evidence this Court, or indeed any other court of Australia which is invested with federal jurisdiction, might subsequently come to a contrary conclusion. That, it may be said, is a position in which persons in their private affairs are often placed. One party to a contract may have to determine whether the other party has by his conduct repudiated that contract so that he, the first party, may rescind; and he may decide wrongly and suffer the consequence that his rescission is held in a court of law to be void. But we are not dealing with private rights. We are dealing with public rights which lie at the heart of our constitutional democracy. The lives of the Government and of the national Parliament are in such a case at stake. In particular, the life of the elected Senate is at stake. If an error be made a Senate elected by the electorate for a certain period will be wrongly dissolved or on another view the dissolution itself may be void. It would indeed be an extraordinary result. It may be that this consideration is of even greater importance on the question whether the matter is justiciable before this Court at all, but it is by no means unimportant on the issue of construction if it be assumed that the issue is justiciable. (at p197)

21. Another objection to such a construction is that no time limit on the consideration of the proposed law by the Senate is then provided. One would need to carry over into our Constitution an implication which is often necessary in private law, namely, that the Senate should have a reasonable time in all the circumstances. What time was reasonable would in every case be a question of fact. But a constitution is not the place for implied terms of this kind. It should speak for itself. (at p197)

22. It seems to me much better to construe the section as I have suggested. Thereby the period of three months becomes the minimum period allowed to the Senate for consideration of the proposed law. During that period and thereafter the Senate may deal with the proposed law as it wishes. If within that time or thereafter until the House of Representatives passes the proposed law again it may pass the Bill before it and the deadlock is resolved. There is no longer any failure to pass the proposed law. If however the Senate, after having had the proposed law before it for three months, still has not passed it, that House may pass the proposed law again. If the Senate rejects it, or fails to pass it or passes it with amendments to which the House of Representatives will not agree then the Governor-General may dissolve the Senate and the House of Representatives simultaneously. No time is expressed within which on this second occasion the Senate must deal with the proposed law and it has been suggested that this supports the construction that "fails to pass" refers to a positive time at which it may be deduced from the circumstances that the Senate has failed to pass the Bill. Otherwise, it is said, how does the Governor-General know whether the occasion has arisen for double dissolution? These factors, far from detracting from the view which I have expressed, strongly reinforce it. At any time after the House of Representatives has passed the proposed law a second time the Senate may pass it and as long as it does not do so it is in a state of failing to pass it. During that time the Governor-General may dissolve both Houses. No doubt time would be allowed. Advice to allow no time would be so extraordinary that it might require some extraordinary course on the part of the Governor-General. But the giving of such advice need not be contemplated. The delicate relationship between the Crown and the Ministers of the Crown is in Australia as in the United Kingdom maintained by the convention that advice given will be advice which may properly be given within the spirit of the Constitution. The construction whereby failure to pass can be determined at a single point of time would lead to a most remarkable result. The failure would be a fact which had happened and the condition precedent to double dissolution would have occurred irrespective of whether or not the Senate thereafter made good its default and before the double dissolution passed the proposed law. The double dissolution could still proceed. That would be an impossible result and therefore at the least failure to pass throughout s. 57 would need to be read as a failure not only at but also from a particular point of time. But once one takes that step the argument in favour of a construction which would require the ascertainment of some fault or default at a particular point of time is very much weakened. Any reason for preferring a construction of the words "fails to pass" as meaning "neglects to pass" rather than "does not pass" disappears. For all these reasons I prefer to construe the words "fails to pass" in the sense of "does not pass". That being so the period of three months runs from the time when the House of Representatives has passed the proposed law and the Senate received the proposed law and has not passed it. Therefore on 8th April 1974 there had been a period of over three months during which this state or condition of things existed. The plaintiffs therefore fail in their statements of claim to make out a cause of action. (at p198)

23. If I am wrong in my construction of s. 57 and if a point of time must be ascertained at which it can be said that the Senate "failed", then the plaintiffs must in their statements of claim either allege that the Senate had not, three months before 8th April 1974, so failed or allege facts from which it follows as a matter of law that the Senate had not so failed. But the plaintiffs do neither. I have earlier outlined the contents of the statements of claim but I shall refer again to the salient dates. The lower House passed the Bill on 12th December 1973. The Senate took the Bill under consideration on 13th December 1973 but declined to proceed beyond the first reading of the Bill. It then saw fit to adjourn the further consideration of the Bill for two months and itself to adjourn for those two months. It did not resume consideration of the Bill until 19th March. These facts do not establish that the Senate, in taking this course, did not at some point of time between 13th December 1973 and 7th January 1974 "fail to pass" the Bill. The delay must surely be regarded as some evidence of failure. Such a course of events, as related in the statements of claim, does not lead to a conclusion of law that the Senate did not by such actions fail to pass the Bill and it was for the plaintiffs to allege the facts necessary to sustain their claims. We have been told that the adjournment of the Senate was for the purpose of taking its Christmas or midsummer recess. There is no such matter alleged in the statements of claim, but, even if there were, such an allegation would provide no conclusive explanation of the delay. At the most it would be a factor to be taken into account in categorizing the conduct of the Senate. A conclusion on such an important question affecting political and constitutional security cannot turn on a court taking note of the fact that the Senate prefers not to sit between mid-December and mid-February. To do so would detach the course of events from the reality. There is nothing before the Court which would establish or even suggest that in reality the Senate as constituted ever at any time had any intention of passing the Bill. It would be wrong to conjecture that on 13th December the Senate required the further time for consideration of the measure, but could not give that time because of the need to take the Christmas recess. Even if the Court does take notice of the Senate's sessional preferences it does not follow that in the particular circumstances it was reasonable for the Senate to adjourn leaving this business undone despite the urgings of the country's government and of the lower House that the business be done. (at p199)

24. Thus the course of events related in the statement of claim does not establish that the Senate did not fail to pass the Bill; on the contrary it provides material from which a conclusion of fact could be drawn that the Senate, if not on 13th December, then in the succeeding days, failed to pass the Bill. Indeed, if the matter fell to be determined as a conclusion from the allegations in the statement of claim I would conclude that the Senate on 13th December 1973 by simply adjourning further consideration of the Bill until February 1974 failed to pass the Bill. (at p199)

25. I am therefore of the opinion that on either construction of s. 57 the statement of claim does not allege facts which establish a right to the relief claimed and that on the demurrer to the defence there ought to be judgment for the defendant in accordance with the old established practice governing demurrers. See Stephen on Pleading, 1st ed. (1824), p. 162; Holdsworth, History of English Law, vol. IX, p. 28. In view of my primary conclusion on the construction of the section and of the facts as alleged in the statements of claim there would be no point in granting leave to amend in order that the plaintiffs might make a specific allegation that the Senate had not failed to pass the Bill. Such an amendment would only be necessary if the decision turned on the conclusion which I have alternatively and secondly expressed. I would therefore dismiss the action by Victoria against the Commonwealth and likewise the actions by the other States. (at p200)

Orders

VICTORIA AND ATTORNEY-GENERAL (VICTORIA) v. THE COMMONWEALTH AND CONNOR

Demurrer allowed with costs.

Declare that the Petroleum and Minerals Authority Act 1973 is not a valid law of the Commonwealth.

Liberty to the plaintiff to apply.

Questions referred by Stephen J. unnecessary to answer.

Remit summons for the striking out of the Defence for determination by Stephen J.

NEW SOUTH WALES v. THE COMMONWEALTH

Declare that the Petroleum and Minerals Authority Act 1973 is not a valid law of the Commonwealth.

Defendants to pay plaintiffs' costs.

QUEENSLAND v. THE COMMONWEALTH

Questions referred by Stephen J. unnecessary to answer. Matter remitted to him for final determination. Costs to be in the discretion of Stephen J.

WESTERN AUSTRALIA v. THE COMMONWEALTH

Questions referred by Stephen J. unnecessary to answer. Matter remitted to him for final determination. Costs to be in the discretion of Stephen J.