Western Australia v The Commonwealth

[1975] HCA 46

HIGH COURT OF AUSTRALIA

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

WESTERN AUSTRALIA v. THE COMMONWEALTH ;

(1975) 134 CLR 201

17 October 1975

Constitutional Law (Cth)

Constitutional Law (Cth)—Parliament of the Commonwealth—Deadlock between Houses—Double dissolution—Power of Governor-General to dissolve both Houses after Senate rejects or fails to pass a proposed law twice—Lapse of time between second rejection and dissolution—Prorogation of Parliament after first rejection or failure to pass by Senate—Effect on power to dissolve both Houses simultaneously—Rejection of bills by new Senate—Proclamation convening joint sitting to consider named Bills—Requirements of s. 57 of Constitution not satisfied in respect of one bill—Efficacy of proclamation—Whether bills passed at joint sitting &hich receive Royal assent valid laws—The Constitution (63 &64 Vict. c. 12), s. 57. Constitutional Law (Cth)—Territories—Representation in Parliament—Representation in Senate of the Australian Capital Territory and the Northern Territory—Elected representatives to be senators and to have all powers of State senators including power to vote—Validity—Representation—Whether connotes right to vote—The Constitution (63 &64 Vict. c. 12), ss. 7, 121, 122—Senate (Representation of Territories) Act 1973 (Cth), ss. 4, and 5*. * (1975) 134 CLR 201 at p 243

Decisions

October 17.
The following written judgments were delivered:-
BARWICK C.J. In actions commenced against the Commonwealth of Australia by the States of New South Wales and Western Australia challenging the validity of several statutes, namely, the Senate (Representation of Territories) Act 1973, No. 39 of 1974; the Commonwealth Electoral Act (No. 2) 1973, No. 38 of 1974; and the Representation Act 1973, No. 40 of 1974, cases were stated pursuant to s. 18 of the Judiciary Act, 1903 as amended, for the opinion of a Full Court, asking:
(1) Is each Act an Act duly passed by both Houses of Parliament within the meaning of s. 57 of the Constitution?
(2) Is the Senate (Representation of Territories) Act 1973 in whole or in part invalid as being beyond the legislative power of the Parliament of the Commonwealth? (3) Are the questions numbered (1) and (2) justiciable? (at p215)

2. The State of Queensland commenced an action against the Commonwealth of Australia, delivering a statement of claim seeking a declaration that the Senate (Representation of Territories) Act 1973 is beyond the powers of the Commonwealth and invalid. The defendant Commonwealth demurred to the whole of the statement of claim, taking two points of law: first, that the Act is valid and, second, that the plaintiff State has no standing to seek the relief claimed. The demurrer having been entered for argument, it was heard at the same time as the cases stated in the actions brought by the States of New South Wales and of Western Australia. (at p215)

3. The grounds of the attack on the validity of the Commonwealth Electoral Act (No. 2) 1973 and of the Representation Act 1973 are the same in substance. The same ground is one of the grounds of attack on the validity of the Senate (Representation of Territories) Act by all three States. Each Act results from a joint sitting of the members of the House of Representatives and of the Senate held in Canberra on 6th August 1974. In each case a bill had been passed by the House of Representatives, rejected by the Senate, in due time passed again by the House and again rejected by the Senate. The significant dates on which the submission made by the States is based, are 29th August 1973, when the Senate secondly rejected the Commonwealth Electoral Bill, and 14th November 1973, when the Senate secondly rejected the Representation Bill 1973 and the Senate (Representation of Territories) Bill 1973. (at p215)

4. On 14th February 1974 the Parliament was duly prorogued with the consequence that all incomplete bills lapsed, though standing orders of the House provided for the reactivation of bills which at the time of prorogation had not reached their final stage: see Standing Order 264 of the Standing Orders of the House of Representatives. This standing order was inapplicable, in my opinion, to the bills the validity of which is in issue in these cases. They did not lapse on the prorogation for they had already been rejected. In the ordinary course of the business of the Parliament their course had finished. (at p216)

5. On 11th April 1974, by his proclamation of that date, the Governor-General dissolved the Senate and the House of Representatives. Following the ensuing general election, the Parliament met on 9th July 1974. Thereafter the House again passed the three bills and the Senate rejected them. (at p216)

6. Thereupon the Governor-General issued his proclamation of 30th July 1974 which recited the proclamation dissolving the Senate and the House of Representatives simultaneously "in respect of several proposed laws" including the abovementioned three bills and that the conditions upon which a joint sitting might be convened had been fulfilled in respect of each of the before-mentioned proposed laws and by which the Governor-General convened a joint sitting of the members of the Senate and of the House of Representatives for a stated place and time "at which they may deliberate and shall vote together upon each of the said proposed laws as last proposed by the House of Representatives and all members of the Senate and of the House are required to give their attendance accordingly". Such proposed laws included the Petroleum and Minerals Authority Act 1973. (at p216)

7. Two grounds of attack on the validity of the three Acts based on the facts I have recited are, first, that by reason of the lapse of time between the respective dates of the Senate's second rejection of the several bills and the date of the proclamation dissolving the Senate and House of Representatives, and in addition by reason of the prorogation of the Parliament in the interval between those dates, none of the three bills was at the date of the joint sitting on 6th August 1974 a proposed law which could be affirmed by the joint sitting so as to become an Act as if duly passed by both Houses of the Parliament. The second ground was that the joint sitting had not been duly convened because of the terms of the proclamation of the Governor-General on 30th July 1974. (at p216)

8. Section 57 provides for an exceptional process of law-making for use in a particular and exceptional situation. If there is an irreconcilable and persisting difference between the House and the Senate as to a law proposed by the House, the section provides a means whereby the electorate may recompose the two Houses of the Parliament in such a numerical relationship as may obviate that difference, whether the solution be pro or con the proposal. (at p216)

9. But if that recomposition of the elements of the Parliament does not obviate that difference by the employment of the regular law-making processes of the Parliament, s. 57 provides the further means of attaining finality on the House's proposal. (at p217)

10. In interpreting and in applying this section, its purpose and place in the Parliamentary system set up by the Constitution must be borne in mind. The Parliament is essentially, and without due amendment of the Constitution, unalterably a bicameral legislature, with the Senate designed to perform a specific function over and above that of a house of review. I have observed upon that matter in my reasons for judgment in Victoria v. The Commonwealth (1975) 134 CLR 81 at pp 109-127, . Further, the Senate has a degree of permanence not given to the House of Representatives. Consequently, because of the different points of view which may be present in the two elements of the Parliament, conflicts might be expected and a means of resolving an irreconcilable and persistent difference between them was necessary or at least advisable: hence the presence of s. 57 in the Constitution. The use of its provisions departs from the constitutionally normal, first, in enabling a dissolution of the Senate and thus removing pro tem that degree of permanence to which I have referred, and, secondly, in allowing of the making of a law, not by a bicameral legislature, but by an ad hoc body more of the nature of a unicameral legislature, treating its product as if it had been duly passed by the bicameral Parliament. It is evidently important that such a body should be strictly confined to the terms of the section. It is submitted on behalf of the plaintiff States that its permissible scope of operation should be confined to the occasions contemplated by the section. It is said that unless so confined an unwarranted inroad upon the essentially and peculiarly bicameral nature of the Parliament will be permitted. (at p217)

11. What is submitted is that, upon its proper interpretation, there is necessarily a temporal relationship between the various steps which may be taken in pursuance of the section. It is argued that because the procedure provided by the section is directed to the resolution of a particular difference, a proposed law which has been secondly rejected by the Senate cannot be "stockpiled" so that action which that rejection would authorize may be taken not immediately, but at some remote point of time and then, be dealt with along with other proposed laws which had been rejected either before or after the first-mentioned proposed law and which may have similarly been stockpiled: or, for that matter, be dealt with alone, the stockpiled bill providing the occasion for the proclamation of a double dissolution. (at p217)

12. In Cormack v. Cope (1974) 131 CLR 432 , the plaintiffs, as a means of preventing any such result, sought from this Court a decision that only one proposed law could be the subject of a joint sitting. The Court denied that proposition. No other relevant argument was put by the plaintiffs. Whilst rejecting the plaintiffs' proposition in that case, I acknowledged the dangers to the bicameral nature of the Parliament and its normal law-making process if any stockpiling of rejected proposed laws were to take place. At that time, there being no further submissions of the plaintiffs, I thought that the danger might be obviated by the adoption of appropriate Parliamentary conventions. I said (1974) 131 CLR, at p 456 :

"I am quite conscious of the fact that such a view of s. 57", i.e. that more than one proposed law could be voted upon at a joint sitting, "leaves open the possibility that, as it were, a storehouse of proposed laws could be built up during the life of a Parliament so that after a double dissolution they might be presented at the one time to a joint sitting, thus making a considerable inroad upon the basic concept of the Constitution which provides for a bi-cameral system of Parliament. But whilst this is perhaps a possibility it seems to me it is not to be prevented by what to my mind would not be merely a strained but an unwarranted construction of s. 57. The control of such a possibility might lie in the formation and observance of Parliamentary conventions designed to implement the spirit of Parliamentary government as under the Constitution." (at p218)

13. But in so saying, I was not unconscious of the fact that the emergence of such conventions, to provide a safe foundation for protecting constitutional provisions, must depend on the passage of time and the maturity of the Parliament. (at p218)

14. But now a different argument has been presented which calls for very careful consideration. It is submitted on behalf of the plaintiffs that, whilst s. 57 gives the Governor-General a discretion to dissolve both elements of the Parliament simultaneously when there is in fact an irreconcilable and persistent difference as to a proposal of the House, the section ought not to be read as imposing no temporal limit on the exercise of that discretion other than that contained in the last sentence of the first paragraph. It is then said that the implied presence of a temporal limitation on the exercise of the discretion related to the date of the second rejection by the Senate of the proposed law, would preclude any stockpiling of rejected proposed laws and be consonant with the evident purposes of s. 57 and the Constitution generally. (at p218)

15. Further, it is submitted that to lay aside a rejected proposed law rather than to take the action which its situation permits, is to exercise negatively the discretion to effect a double dissolution and to exhaust that discretion. (at p219)

16. It is further argued, as I understand counsel, that to decide to prorogue the Parliament is to decide against taking action to dissolve both Senate and House of Representatives and is an exercise of the discretion which exhausts it so far as concerns proposed laws which the Senate has on two occasions not passed. (at p219)

17. Lastly, it is said that the time which elapsed between the respective dates of the second rejection of the three bills and the date of the proclamation effecting the double dissolution was so inordinate as to establish that these bills had been laid aside and inadmissably stockpiled. (at p219)

18. No attack is made in these submissions on the validity or effectiveness of the proclamation of the double dissolution. It is submitted, and in my opinion correctly submitted, in this connexion that the power simultaneously to dissolve both Houses of the Parliament and the power subsequently to convene a joint sitting are statutory and not prerogative powers. The validity of the proclamation convening the joint sitting is attacked but the submissions to which I have so far referred do not depend on the suggested invalidity of the proclamation. (at p219)

19. I turn then to the first of these attacks upon the formal validity of the Acts, a matter which I have found singularly difficult of resolution. (at p219)

20. The Commonwealth Electoral Act (No. 2) 1973 substitutes s. 19 of the Commonwealth Electoral Act 1918-1973, by slightly amending sub-s. 2(b) by the removal of the words "with special reference to disabilities arising out of remoteness or distance", by excluding the provisions of pars (d) and (e), and by adding the words "and subject thereto . . . one tenth less". This Act is unrelated to the Senate (Representation of Territories) Act. But the Representation Act 1973 is so related, though not exclusively. Its principal amendment is intended to ensure that in carrying out the constitutional provisions contained in s. 24, senators for the territories will not be accounted as senators in computing the number of members of the House of Representatives. If the Senate (Representation of Territories) Act is invalid, as in my opinion it is, the amendment effected by s. 5 of the Representation Act will be of no effect. (at p219)

21. The Court decided in Cormack v. Cope (1974) 131 CLR 432 that more than one bill may be discussed and approved at a joint sitting. But it does not follow that, whilst there is a proposed law which at the time of the proclamation of a double dissolution satisfies the conditions of the authority of the Governor-General to effect a double dissolution, any twice rejected bill no matter how long since it had been secondly rejected by the Senate, could be considered and approved by the joint sitting. Though the section, in referring to a proposed law, is cast in the singular, clearly there may be any number of laws at the same time satisfying the conditions of the Governor-General's power of dissolution. But that circumstance established by the decision in Cormack v. Cope does not answer the question now raised. The satisfaction of these conditions by several bills, even if not strictly contemporaneous, can be proximate in time to the date of the exercise of the Governor-General's discretion. That exercise, as was pointed out in Cormack v. Cope, is not in respect of any particular proposed law, though to warrant that exercise there must in fact and not merely in the opinion of the Governor-General, be at least one proposed law which then satisfied the prescription of the first paragraph of s. 57. Only a proposed law may be dealt with in the joint sitting which could itself have founded a proclamation of double dissolution; that is to say, it must satisfy the conditions of both the first and second paragraphs of s. 57. But does a bill which the Senate twice has not passed at some remote point of time, but which has been laid aside and become stale, qualify for inclusion in the bills which may be so discussed and approved? Could a bill which had been stockpiled against the possibility of a later double dissolution itself found a double dissolution after the lapse of the intervening time? It is around questions such as these that the submission of the States as to the validity of the three bills has been developed. (at p220)

22. The Court has already decided that if any bill approved by a joint sitting was not a proposed law satisfying the provisions of s. 57, both at the date of the double dissolution and at the date of the joint sitting, it will not be a valid law of the Commonwealth (see Victoria v. The Commonwealth (1975) 134 CLR 81 ). It is therefore pertinent to the question raised by the present submission to recall the conditions such a proposed law must satisfy. It must have originated in the House of Representatives and not have been passed by the Senate. It must have again been passed by the House in the same or the next session after an interval of three months from its not having been passed by the Senate. I do not pause to include in this recital, or in my other cognate references, the full formula - rejects, fails to pass or passes with unacceptable amendments. The expression "not passed", or in other references "rejected" will serve to cover all these situations. Also I do not trouble to discuss what is meant by "the same session", the alternatives being the session in which it was first passed by the House or the session in which it was not passed by the Senate. The only point which can properly be made is that there is an attempt in the section by referring to the same or the next session, to limit the time during which the House can consider whether it will again press the bill on the Senate. (at p221)

23. If the House has again passed the bill and presented it to the second chamber, the Senate must again not have passed the bill. No time limit is placed upon the Senate within which it must take positive action with respect to the bill: but, by including the words "fails to pass", the section precludes merely dilatory conduct, mere procrastination on the part of the Senate. The power of dissolution is closely related in terms to these conditions. The section, read schematically, says "if A and B, the Governor-General may". The occurrence of both furnishes the condition of the power of dissolution. There is a distinct concatenation of events, clearly sequential and as I think progressively so, of which the dissolution is the related climax. (at p221)

24. In my opinion, to qualify as a proposed law which may be approved by a joint sitting convened pursuant to s. 57, the bill must have twice not been passed by the Senate upon its presentation by the House of Representatives in conformity with the section and the second occasion on which the bill has not been passed must be so related in point of time to the date of the dissolution as to form part of the same current situation between the House and the Senate. The evident time sequence in s. 57 progresses continuously towards the date of that proclamation. The action, if the House determines to re-present the bill, has a continuous currency which includes the act of dissolving the Houses. Whilst the implication of the word "thereupon" into the grant of the discretion, would appear to require too stringent an immediacy in the temporal relationship of the double dissolution to the second occasion of the non-passing of the bill by the Senate, there must in my opinion be such a temporal relationship as maintains the currency of the situation as a whole. Just as the implication of the word "thereupon" in relation to the discretion may involve too inflexible a relationship, so on the other hand, the implication of the words "at any time thereafter" would clearly destroy that currency of the situation which, to my mind, the language and the structure of the section requires. This means, in my opinion, that proposed laws which twice have not been passed by the Senate may not be stockpiled. They may not be laid aside against the possibility of a double dissolution founded on some event remote in time and unrelated to the situation in which the "stockpiled" or stale bill was twice rejected by the Senate: nor can they be laid aside until some later and relevantly remote time which may be considered more suitable for the making of a proclamation of double dissolution. On the other hand, time must be afforded to the Governor-General between the second time the bill has not been passed and the date of the proclamation, not merely to allow of consideration whether the discretion to dissolve ought to be exercised, but also to await the fate of other proposed laws which have been submitted or are in the course of being submitted to the process of s. 57, assuming always that such other laws do form part of, or are substantially related to, the situation current at the time of the double dissolution. Bearing in mind the function of s. 57 in providing the possibility of the electorate expressing its opinion on the matters in difference between the Houses of the Parliament, the language of s. 57, in my opinion, sufficiently manifests the intention that action to enable that expression of opinion must be proximate to the time that difference emerged. It would be quite incongruous that at a considerable remove of time and after the business of the Parliament had been proceeding for very many months, it should be dissolved to enable the electorate to pass upon a question which would appear to have been shelved; to vote in relation to a bill or a difference between the Houses which had in truth become stale. (at p222)

25. It is unnecessary for the aspect of the matter with which I am dealing to decide whether the power of double dissolution is only exercisable by the Governor-General upon the advice of a Minister or may be exercised as a discretion of his own. (at p222)

26. The same sense of currency to which I have referred is present in the second paragraph of the section. Thus, the expression in the opening words of that paragraph, "if after such dissolution" cannot be read, in my opinion, as "if at any time thereafter". The words import an immediacy of the further action by the House of Representatives following upon the double dissolution. The convening of a joint sitting could not be indefinitely delayed. It must, in my opinion, be held so soon after the new deadlock with the Senate has emerged as to be current, though of course not precisely contemporaneous, with it. (at p222)

27. I therefore conclude that, upon its proper construction, s. 57 does require a temporal relationship between the time when the Senate for a second time does not pass a proposed law and the date of the double dissolution. The situation as to the disagreement between the Houses of the Parliament as to the proposed law must be current at the time of the double dissolution. If the interval of time is so considerable as to warrant the conclusion that the proposed law is stale and that the situation which existed at the time of the second rejection is no longer current, it cannot, in my opinion, be brought forward to a joint sitting and there approved so as to become law. The continuity of the action under s. 57, including as one of its progressing steps the double dissolution itself, must be substantially maintained. (at p223)

28. I am not unaware of the difficulties involved in deciding whether in given circumstances this temporal relationship has been maintained. But, whether it has or not, is a matter of fact which ultimately this Court will be able to decide. (at p223)

29. Whether or not the Governor-General has exercised his discretion against dissolving both Houses of the Parliament is a different question. It is in my opinion that once the Governor-General exercises the discretion, however exercised, it ceases to be available to him. Whether he has done so or not is a matter of fact. An exercise of the discretion may be inferred from some considerable lapse of time or from the taking of some step inconsistent with the continuance of the discretion. (at p223)

30. I now turn to apply these considerations to the facts disclosed in the stated cases. (at p223)

31. I should first dispose of a submission that the decision of the Governor-General to prorogue the Parliament was an exercise of the discretion to dissolve, that it represented a choice between two possible courses. I have already indicated that the bills which, having been presented to the Senate by the House of Representatives, have not been passed by the Senate are not bills which would lapse upon a prorogation. Those bills have run their course. Even after a double dissolution, they must be passed again by the House. It would not be enough after their rejection by the Senate for the House of Representatives to use the machinery of its Standing Order No. 264. A prorogation is a common, though not an indispensable or universal, antecedent to a dissolution of the House of Representatives and cannot be represented, in my opinion, as demonstrating any choice of the Governor-General as between a prorogation and a dissolution under the Constitution. Indeed, in terms s. 57 allows of both courses, which are not expressed as exclusive alternatives. It seems to me that it cannot properly be said that the decision to prorogue the Parliament involved a decision not to exercise the discretion to dissolve both Houses of the Parliament. Accordingly, I reject this submission made on behalf of the plaintiff States. (at p224)

32. There is, in my opinion, no evidence before the Court, other than the mere lapse of time, which could justify the conclusion that the Governor-General before 11th April 1974 exercised the discretion simultaneously to dissolve both Houses of the Parliament. In relation to the Commonwealth Electoral Bill, the Senate's second rejection of the bill was on 29th August 1974; that is to say, some seven months elapsed, for two of which Parliament was in recess, between the second rejection of the proposed law and the double dissolution. In the case of the Representation Bill, the second rejection by the Senate was on 14th November 1973; that is to say, an interval of some four months which included the Parliamentary recess between the spring and the autumn sessions. Whilst perhaps not logically imperative, in my opinion it is proper to have regard to the Parliamentary recess in considering the temporal relationship between the second rejection of the Bill and the proclamation of a double dissolution. (at p224)

33. I have no difficulty in concluding that the Representation Bill was current at the date of the double dissolution. It related to the subject matter of the Senate (Representation of Territories) Bill which was secondly rejected on the same day. The period of four months less the duration of the Parliamentary recess is clearly not inordinate or indicative that the bill has become stale, laid aside, or that the Governor-General must have decided not to grant a double dissolution. In my opinion, both bills were proper to be approved by the joint sitting. (at p224)

34. I have had much more difficulty with the Commonwealth Electoral Bill. There was in this case a considerable lapse of time. But the prospect, viewed from 29th August 1973, of other proposed laws fulfilling the prescription of s. 57 in the immediate future, must be allowed as a circumstance tending to deny that the Electoral Bill had become stale or that the substantial continuity of the steps required by s. 57 was not being maintained with respect to that bill. Of course, this bill was not related to the subject matter of either of the other two bills. But, not only may there be a number of proposed laws which at the time of a double dissolution satisfy the relevant terms of s. 57, but those bills need not be in any manner interrelated. On the other hand, of course, their interrelation may account for a justifiable passage of time. (at p224)

35. After much consideration, I am not prepared to hold that the Electoral Bill failed to fulfil the temporal relationship which I have endeavoured to express as being required by s. 57; that is to say, the temporal relationship between the date of the Senate's second rejection of a bill and the date of the proclamation effecting a double dissolution. The time interval was indeed substantial, almost six months after allowing for the Parliamentary recess - particularly in relation to a Parliamentary term of three years or less. The possibility of the situation its rejection created, not being relevantly current at the date of the double dissolution, was indeed great and the fact that its subject matter was disparate from that of the proposed laws rejected much more proximately to the date of the double dissolution, though not definitive, is yet quite significant. The matter is on the borderline, but I am not of opinion that the Act resulting from the approval of the proposed law by the joint sitting should be held to be invalid. (at p225)

36. The second ground of attack upon the validity of the three bills is that the joint sitting at which they were approved was not duly convened. The point taken is that the Governor-General is not authorized to specify the bills upon which the joint sitting may vote: that he purported to do so, including amongst the bills to be the subject of debate and approval, a bill of which the joint sitting could not approve and that therefore the proclamation purporting to convene the joint sitting was invalid. (at p225)

37. I expressed a tentative view on this matter in my reasons for judgment in Cormack v. Cope (1974) 131 CLR 432 . A majority of the Justices participating in the decision of that case were of opinion that the Governor-General was not authorized to determine what could be discussed and approved at a joint sitting; but that so much of the Governor-General's proclamation as appeared to designate the bills to be the subject of the joint sitting was surplusage, not affecting the validity of the proclamation in so far as it convened the joint sitting. I doubted at that time that the statement in the proclamation that each of the specified proposed laws might be discussed and should be voted upon could be treated as surplusage. Statutory provisions allowing of a severance of part of a statutory instrument where that part is in excess of authority do not apply to the Governor-General's proclamation and it could scarce be denied that the inclusion in the proclamation of the reference to the proposed laws was intentional. However, I am not disposed to dissent on this point from the opinion of my brethren. I am ready to do so because, having regard to the views expressed by them and by me, there is no likelihood that the error of doing more by such a proclamation than convene the joint sitting for a stated place and time will be repeated in the future. (at p225)

38. There remains the attack made by the States upon the substantive validity of the Senate (Representation of Territories) Act 1973. This Act provides that each of the Territories of the Australian Capital Territory, which embraces the Jervis Bay Territory, and of the Northern Territory of Australia shall be represented in the Senate by two senators directly chosen by the people of the Territory voting as one electorate (s. 4). It provides for such senators to have all the powers, immunities and privileges of a senator for a State, to be included in the whole number of senators for the purpose of a quorum, to be counted when present for determining a quorum and to have a vote on all questions arising in the Senate (s. 5(1)). Various provisions of the Constitution relating to senators are applied to such senators (s. 5(2)). The term of such senators is to commence on election and to expire on the day before polling day for the next succeeding general election for the House of Representatives. In other words if the Act is valid, the Senate will not be composed of senators for each State. (at p226)

39. The validity of the Act is placed by the defendant Commonwealth upon s. 122 of the Constitution:

"122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the Authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit."

The submission of the Commonwealth is that the expression "allow the representation of such territory in either House of the Parliament" is in terms both large enough and appropriate to support a law providing for that representation to be by a senator or senators with the same capacities, including the right to vote on all questions, as a senator for a State. (at p226)

40. Section 122, of course, cannot be read in isolation. It must be read with the Constitution as a whole. It is in a part of the Constitution dealing with the creation of new States and the acquisition and government of Territories. But that part is in its nature incidental, in a sense peripheral, to the central and dominant purpose of the Constitution. The Constitution Act called into existence a new colonial polity, an indissoluble Federal Commonwealth (see recital and covering cl. 3). It was to be federal in the sense that it was to have States forming part of it and that governmental powers should be distributed between the new polity and the States which were parts of it (see covering cl. 6, ss. 51, 82, 106 and 107). The chosen method of distribution was the nomination of specific powers in the new polity with the residue to the States and a provision for paramountcy of the new polity's laws. The Parliament of the new polity was to be essentially bicameral, consisting of a House of Representatives and a Senate. By s. 24, the House of Representatives is to be composed of members directly chosen by the people of the Commonwealth, the number of such members being related to the number of senators, the number of members being as nearly as practicable twice the number of senators. There can be no doubt, in my opinion, having regard to the terms of s. 24, that "the people of the Commonwealth" referred to in this section comprised in totality the people who live in the States, "people of the States", which form part of the Commonwealth and that the expression does not and cannot include people resident in a Territory. For Constitutional purposes they are Territories. (at p227)

41. The Senate is, by s. 7, to be composed of senators elected by the States voting as a single electorate until such time as the Parliament decides otherwise. The original States are to have the same minimum number of senators. Each of these senators is to have one vote. By s. 128 it is proved that:

"No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law."

Thus, the equality of influence of the original States in the Senate is secured. Further, the exclusive influence of the States as a whole in the Senate is also secured by the limitations inherent in s. 7. Whilst the Parliament may alter the method of election of senators, s. 7 gives it no power and indeed leaves no room for any power to alter the composition of the Senate. (at p227)

42. The essentially federal nature of the new polity, the Commonwealth of Australia, is manifest throughout the Constitution. The power of alteration of the Constitution given by s. 128 also emphasizes the federal structure of the Commonwealth. Each House of the Parliament may initiate a proposed law for the alteration of the Constitution. Only persons who are qualified to vote for the election of the House of Representatives may vote upon the proposed law and for its approval there must be a majority of such voters in a majority of the States, as well as an overall majority in the Commonwealth. To that federal nature, the maintenance of the relationship of the House of Representatives and the Senate and of the relationship of each respectively to the people of the Commonwealth and the States and of the Senate as the States' House is indispensable. (at p228)

43. It is against this background that Ch. VI must be read and construed. It is, in my opinion, quite inadmissible to conclude that this chapter was intended in any respect to alter, or qualify, the essential features of the federation or to permit of such a course or to create a power to do so: I cannot think that the founders of the Commonwealth intended that these essential features might be swept aside as it were by a bywind. Neither s. 7 nor s. 24 is prefaced with the words "subject to the Constitution": nor is s. 122 prefaced with the words "notwithstanding any other provision of the Constitution". Some such qualification might well be expected if it had been intended that the provisions of s. 7 or of s. 24 could be displaced or qualified by a law made under s. 122. (at p228)

44. It is, in my opinion, clearly inadmissible to construe the Constitution as if the words "until the Parliament otherwise provides" prefaced both the whole of s. 7 and of s. 24. Where it is intended that the Parliament should have control of a Constitution provision, the Constitution expressly and unambiguously so provides. Indeed s. 7 in each of its first three paragraphs is itself such an example. The limitation in the first paragraph of Parliamentary control to the nature of the electorate for voting purposes eloquently denies the possibility by construction of treating the whole of that first paragraph as subject to Parliamentary control and in particular as subject to an exercise of the power given by s. 122. (at p228)

45. Section 121 allows the admission of new States and empowers the Parliament when admitting a new State to determine the extent of its representation in either House of the Parliament. Being admitted as a State, the new State would be represented by senators in the Senate but there could be no question of any State new or original being represented as such in the House of Representatives. The members of the House do not represent States, they represent the people of the Commonwealth though elected in electoral divisions. Consequently, s. 121 merely provides that included in the terms and conditions on which a new State may be admitted, there may be a term or condition as to the extent of representation in each House. The expression is not "representation of the new State in each House" because quite obviously ss. 7 and 24 will operate with respect to the new State when admitted and, as I have said, it is inappropriate to speak of representation of a State in the House of Representatives. But, not being an original State, the number of senators which the new State can elect to the Senate would need to be prescribed. To some extent s. 24 will prescribe the representation of the residents of the new State who, because it is a State, become part of the people of the Commonwealth for the purpose of both sections. But there is scope for a limitation to be placed upon the number of members as well as upon the number of senators which the electors of the new State may elect: and such a limitation might be regarded as affecting the extent of the representation. Thus, by determining the "extent of representation", the numerical strength of the representation provided by the Constitution itself, may be determined by the Parliament at the point of, and as a term and condition of, the admission of the new State. (at p229)

46. Section 122 is dealing with a totally different matter, namely, the acceptance of new Territories; that is to say, of new dependent Territories. It is quite clear that those who reside in any such Territory do not become people of the Commonwealth for the purposes of s. 24: nor can the situation of a dependent Territory be in any sense approximated to that of a State. The Territories are governed by the new polity, the Commonwealth of Australia, and are not federally part of it. Thus, the matters upon which the Parliament may make laws to operate in such Territories are not federally circumscribed. A new State becomes part of that indissoluble union of which the Preamble to the Constitution Act speaks. In great contrast a Territory may be given independence and cease to be a Territory. (at p229)

47. Consequently, s. 122 is quite differently expressed to s. 121. It speaks of allowing representation of the Territory in either House. Unlike the case of a new State, the Territory not being admitted to the federal structure, ss. 7 and 24 do not provide for the representation of the Territory or of its residents. (at p229)

48. In submitting that the expression "allow the representation of such Territory in either House" is apt to authorize a provision for representation by senators, the Commonwealth founds on the use of the word "representation" in s. 121. I have already indicated the difference between the expression "extent of representation" in s. 121 and the expression "the representation of such Territory" in s. 122. But the provision of a senator is not the form of representation which s. 122 specifies. The word "representation" is not used with identical denotation in each section. There is no form of representation which the language of s. 122 compels. It could not be said that if representation is provided it must, in relation to the Senate, be by a senator with full rights and privileges of a senator for a State. Nor could it be said, in my opinion, that to make provision for a non-voting delegate would not be to allow representation. On the other hand, the federal nature of the Constitution and the sections to which I have referred, point against such a form of representation as would alter or affect such an essential part of the federation as to the relationship of the States to the Commonwealth and to one another provided by the establishment of the Senate as a "States House". It must be representation of a kind which does not qualify or impinge upon the unqualified specification of s. 7 - "The Senate shall be composed of Senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate". I have already emphasized that by no proper method of construction could the words "until the Parliament otherwise provides" be implied as a controlling preface to ss. 7 and 24: nor can s. 122 be read as if ss. 7 and 24 were so controlled. (at p230)

49. Further, the expression is "allow the representation of such territory in either House of the Parliament". To speak of the representation of a Territory in the House of Representatives is to my mind an indication against, rather than towards, the conclusion that representation by membership of the House of Representatives is contemplated. In that House the people of the Commonwealth are represented: States and Territories, in my opinion, cannot be. Further, not only are the Territories not admitted to the federation, nor their residents included in the people of the Commonwealth within and for the purposes of s. 24, but they are in a real sense dependent territories, peripheral to the federation. The Australian Capital Territory is, to some extent, in an anomalous situation in that it houses the seat of government. Nonetheless, it is no more than a Territory otherwise acquired by the Commonwealth under s. 122 to be treated for relevant purposes in the same manner as other Territories. Included in those other Territories, it must be remembered, are Norfolk Island, Christmas Island, and the Cocos Islands. The power contended for by the Commonwealth would include power to give each of these Territories senatorial representation, which might well be at least one senator per territory. The effect on the federation and on the Senate as the States House, of such a possibility needs no emphasis. (at p230)

50. In the United States, whose Constitution provided in large part a model for the Constitution of Australia, the District of Columbia, a territory of the United States, was not regarded in 1900 as entitled to representation in the Congress. In effect, it was allowed delegates to the Congress who were not members of the Congress, nor entitled to vote on any matter, including matters which might exclusively relate to the District of Columbia. Even as of this time, dependent territories of the United States, deriving from the federal government such governmental authority as they exercise, having no senators or representatives in the Congress other than delegates with limited functions. The absence from the American Constitution of a counterpart of s. 122 does not in my opinion weaken the significance of the American experience. There is thus, in my opinion, no incongruity in confining the power to allow representation of a dependent territory of a federation to a power to provide for a non-voting delegate or delegates. (at p231)

51. It was said in Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 973:

"In the United States, there being no power to allow the territories to send members to Congress, the organised territories are nevertheless allowed to be represented in Congress by delegates who may speak but not vote. It would seem clear that under this Constitution the Parliament may, if it thinks fit, allow the representation of territories by delegates of the same kind, who, although allowed to sit and speak in the Senate or the House of Representatives, would not be members of either House, or entitled to vote therein. The Parliament may, however, under this section, allow a territory to be represented by actual members in either House; and in that case no terms would be imposed inconsistent with the provisions of the Constitution as to mode of election, tenure, and right to vote. The number of representatives which a territory may be allowed is of course absolutely in the discretion of the Parliament."

I am unable to agree with this statement of the effect of s. 122. Although the section expressly gives power to the Parliament to allow representation of the Territory to the extent and on the terms it thinks fit, the learned authors say that if membership of either House is allowed, there shall be imposed "no terms inconsistent with the provisions of the Constitution as to mode of election, tenure and right to vote". It is observable that the Senate (Representation of Territories) Act does in fact precisely do that, see ss. 6 and 7 of the Act and ss. 7 and 13 of the Constitution. But the anomaly of a senator for dependent Territories of a federation, having full rights and privileges of senators for a State, does not seem to have been present to the mind of the authors. Rather, the anomaly of a senator for the territories having less than the full rights and privileges of a senator for a State seems to have led them to the limitation they expressed in the words I have quoted. In my opinion, the statement of the learned authors is unacceptable and does not represent a correct construction of the section. (at p232)

52. It is, in my opinion, clear that a Territory, not being a State, could not consistently with the federal nature of the Constitution be represented in the Senate by a senator or senators. To interpret the word "representation" in s. 122 as being adequate to authorize a law to permit the election by the Territory of a senator to take his place in the Senate with all the rights and privileges of a senator for a State would, in my opinion, be to subvert the Constitution and seriously to impair its federal character. Some lesser connotation of the word "representation" must be found to make the Constitution, basically federal in nature, consistent throughout. To fit Pt VI into the Constitution as a whole, in my opinion, the expression "allow representation" must be construed so as to be consonant with and indeed to preserve and not to endanger or destroy an essential feature of federation, namely the maintenance of the Senate as the State House. In other words s. 7 is relevantly a dominant provision and not subject to the exercise of the power given by s. 122. The interpretation which, in my opinion, is the correct interpretation is that s. 122 would at most permit the Parliament to allow the representation of a Territory in the Senate by a delegate who would not have the rights of a senator for a State, and who in any case, by whatever name designated, would not be entitled to be treated as a senator for a State or to vote on any questions before the Senate. Whether or not he was allowed to address the Senate on matters before it, in particular on matters which related exclusively to the affairs of the Territory, would be for the Parliament or perhaps, in default of Parliamentary prescription, for the Senate to decide. A law which allowed such a representative to speak in the Senate would, in my opinion, be within the authority which s. 122 confers on the Parliament: and perhaps, as I have indicated, without such authority, the Senate itself may allow the representative so to speak. Such a delegate would, in my opinion, provide representation of the Territory in the Senate within the meaning and intendment of s. 122 construed in the context of the Constitution as a whole. (at p232)

53. The position of a representative of a Territory in the House of Representatives is not presently before the Court. Though much of what I have said may be relevant to that question, I prefer not to pass upon it until it is properly raised for decision by the Court. (at p232)

54. If ss. 4 and 5 are invalid as beyond the power of the Parliament, as in my opinion they are, there is not part of the Act which can stand on some separate ground supporting it. Indeed, all the provisions of the Act are in terms dependent on ss. 4 and 5 and merely implement those provisions, providing appropriate machinery to effectuate them. In my opinion, the whole of the Act is invalid. (at p233)

55. Two other matters need to be referred to. The first is the question whether what I might call the formal vadility of the several Acts is "justiciable". I have expressed myself on this question in my reasons for judgment in Victoria v. The Commonwealth (1975) 134 CLR 81 at pp 108-127 . I understand a majority of the Justices who participated in the hearing of that case shared my opinion that the Court could decide whether the special law-making processes of s. 57 had been observed. There is no need for me to reiterate my reasons for that opinion. (at p233)

56. The second arises out of the demurrer in the action by the State of Queensland. The Commonwealth challenges the competence of that State to bring a suit for a declaration of invalidity of the Senate (Representation of Territories) Act. There was little or no argument in support of this point: and understandably so. It is, to my mind, beyond question that a State in a federal system has a standing to seek the Court's decision upon the validity of a law passed by the federal Parliament which affects the relative representation of the State in the Senate, whether the attack is upon its substantive or its formal validity. (at p233)

57. I would therefore answer the questions asked in the stated cases as follows:
(1) As to all three Acts, yes.
(2) Yes, as to the whole of the Act.
(3) Yes. (at p233)

58. I would overrule the demurrer in the case of Queensland v. The Commonwealth and declare that the Senate (Representation of Territories) Act 1973 is not a valid law of the Commonwealth. (at p233)

McTIERNAN J. I would determine these matters respectively, in favour of the Commonwealth. I agree in the reasons of Mason J. (at p233)

2. One of the questions asked is whether the Senate (Representation of Territories) Act 1973 exceeds the power which is vested by s. 122 of the Constitution in the Parliament. This Act applies to the Australian Capital Territory and the Northern Territory of Australia. The former includes the Territory that was accepted by the Jervis Bay Territory Acceptance Act 1915. (at p234)

3. Section 4 of the Senate (Representation of Territories) Act 1973 provides that the Australian Capital Territory "shall be represented in the Senate by two senators for the Territory directly chosen by the people of the Territory voting as one electorate". Section 4 makes a similar provision for the representation of the Northern Territory of Australia in the Senate. Section 5 (1) provides that a senator for a Territory to which the Act applies has all the powers, immunities and privileges of a senator for a State and "(a) shall be included in the whole number of the senators for the purpose of ascertaining the number of senators necessary to constitute a meeting of the Senate for the exercise of its powers and, if present, shall be counted for the purpose of determining whether the necessary number of senators are present; and (b) shall have a vote on all questions arising in the Senate". Section 5(2) makes applicable ss. 16, 19 and 20 and ss. 42 to 48 of the Constitution in relation to a senator for a Territory to which this Act applies. Section 6 prescribes the term of a senator for a Territory to which the Act applies. (at p234)

4. In my opinion s. 4 of the Act and s. 5 of the Act constitute a law allowing the representation of each Territory to which the Act applies in the Senate to the extent and on the terms which the Parliament thought fit. (at p234)

5. The contention put forward in argument by learned counsel seeking a decision against the validity of the Act that s. 122 does not sanction providing for the representation of a Territory in accordance with s. 4 of the Act is not supportable by the words of s. 122. I agree with Mason J. that there is nothing in the Constitution that requires an interpretation of s. 122 which justifies the contention. (at p234)

GIBBS J. In these proceedings the States of Western Australia and New South Wales challenge the validity of three statutes - the Commonwealth Electoral Act (No. 2) 1973, the Senate Representation of Territories) Act 1973 and the Representation Act 1973 - which were affirmed by an absolute majority of the Commonwealth. One of these Acts, the Senate (Representation of Territories) Act 1973, is challenged on the further ground that it is beyond the legislative powers of the Commonwealth; the State of Queensland has also brought proceedings to challenge this Act on that ground. The State of Victoria has intervened in support of the other States. (at p235)

2. The provisions of s. 57 of the Constitution were fully discussed by this Court in its recent decision in Victoria v. The Commonwealth (1975) 134 CLR 81 . In that case the majority of the Court held that one of the proposed laws affirmed at the joint sitting held on 6th and 7th August 1974 - the Petroleum and Minerals Authority Act 1973 - was not a valid law of the Commonwealth. On the construction of s. 57 which the majority of the Court accepted it could not be said of that proposed law that the House of Representatives had passed it and that the Senate had rejected or failed to pass it or had passed it with amendments to which the House of Representatives would not agree and that after an interval of three months the House of Representatives had again passed it. The condition precedent to the exercise of the powers given by s. 57 to his Excellency the Governor-General had therefore not been fulfilled in relation to that proposed law. No similar question arises in the present case. It is clear that each of the Acts now challenged was passed by the House of Representatives and rejected by the Senate and was, after an interval of three months, and in the same or the next session, again passed by the House of Representatives and was again rejected by the Senate. The conditions which were not satisfied in relation to the Petroleum and Minerals Authority Act 1973 were satisfied so far as each of the Acts now challenged was concerned. The attack made by the States on the validity of the three Acts raises questions which were not considered in Victoria v. The Commonwealth. The first submission made on behalf of the States was that s. 57 upon its proper construction requires that the power given to his Excellency to dissolve simultaneously both Houses of the Parliament must be exercised without undue delay once the conditions precedent to the exercise of the power have been satisfied. His Excellency's proclamation dissolving the two Houses was issued on 11th April 1974. The proposed law intituled the Commonwealth Electoral Act (No. 2) 1973 was rejected by the Senate for the second time on 29th August 1973 and those intituled the Senate (Representation of Territories) Act 1973 and the Representation Act 1973 were both rejected by the Senate for the second time on 14th November 1973. On 14th February 1974 his Excellency prorogued the Parliament. The submission on behalf of the States was that having regard to the time that had elapsed since each of the proposed laws was rejected by the Senate on the second occasion, and also to the fact that in the interim the Parliament was prorogued, it was no longer open to his Excellency on 11th April 1974 to exercise the power to bring about a double dissolution. (at p236)

3. In form the first paragraph of s. 57 provides that if certain conditions are satisfied his Excellency may dissolve the two Houses of the Parliament simultaneously. The paragraph does not expressly provide, nor does it contain anything that suggests, that the discretionary power given to his Excellency should be exercised within any particular time after the conditions have been satisfied. However, it was submitted that it cannot have been intended that his Excellency should be able to postpone the exercise of the power for an indefinite time - perhaps two years - after the second rejection by the Senate of a proposed law. It was said that for this reason some such word as "thereupon" must be implied to govern the words "may dissolve". This argument was supported by reference to the evident purpose of the section - the resolution of deadlocks between the two Houses. It was further submitted that if his Excellency did not dissolve the Houses without undue delay after a bill had been rejected by the Senate on the second occasion, that would mean that his advisers, the government of the day (which it might be assumed commanded a majority in the House of Representatives), would, in effect, be accepting the Senate's decision and that there would no longer be a disagreement as to the passage of the bill. (at p236)

4. I am unable to accept these arguments. It is true that the purpose of s. 57 is to provide a means of resolving a deadlock in the process of law making that has resulted from a disagreement between the two Houses of the Parliament. If, however, the House of Representatives has twice passed a proposed law, and the Senate has twice rejected it, it is apparent that the two Houses are in disagreement on the question whether that proposed law should be passed, and it is not correct to say that they have ceased to disagree simply because some time elapses during which no action is taken to resolve the disagreement. It may be presumed in these circumstances, when nothing else is done, that the House of Representatives continues to be of the collective opinion that the bill should be passed into law, and that the Senate holds to its intention not to pass it. There is in my opinion nothing in the purpose for which s. 57 exists, or in the machinery which it provides for achieving that purpose, that suggests that his Excellency must, if he wishes to exercise the power to dissolve both Houses, do so without undue delay after the conditions stated in the first paragraph of s. 57 have been fulfilled. It has been pointed out in Victoria v. The Commonwealth (1975) 134 CLR 81 that the power given by s. 57 to dissolve the Senate and the House of Representatives simultaneously is of an extraordinary nature and that it cannot be exercised unless the three months' period, provided to allow the Houses time to attempt to reconcile their differences, has elapsed between the two sets of events mentioned in s. 57. It cannot be supposed that the framers of the Constitution intended to put pressure on his Excellency's advisers to seek a double dissolution rather than attempt to reach agreement, by persuasion or compromise, as to the proposed law. For example, if the Senate had twice rejected one proposed law, the House of Representatives might attempt to secure the concurrence of the Senate in the passage of another, framed in terms thought more likely to meet with acceptance, but might nevertheless wish, if the Senate rejected the second bill, to submit the former and not the latter to a joint sitting if one were held. Moreover, more than one proposed law may be voted upon at a joint sitting (Cormack v. Cope (1974) 131 CLR 432 ) and his Excellency's advisers might not unreasonably take the view that whereas the rejection of one proposed law might not be sufficiently important to justify the use of the exceptional procedure provided by s. 57, the rejection of several proposed laws would cause such disruption to the legislative plans of the government as to warrant the use of that procedure. It is therefore understandable, in the nature of things, that it should not have been intended that if a double dissolution is to be brought about it should necessarily follow forthwith upon the rejection by the Senate for the second time of any particular proposed law. It does not appear to me to be necessary, in order to make the section workable, or to give it a sensible operation, to imply a requirement that the exercise of the power to dissolve both Houses should be made without undue delay once the conditions of the exercise of the power have been satisfied. On the contrary, it would accord with the aims of the section that the power which it confers should be exercised, not at the first possible opportunity, but only as a last resort. (at p237)

5. Section 57, in its first paragraph, deals specifically with questions of time. It provides not only for the interval of three months already mentioned but also that a double dissolution should not take place within six months before the date of expiry of the House of Representatives by effluxion of time. This latter provision was no doubt intended to prevent the members of the House of Representatives from bringing about a dissolution of the Senate at a time when they would themselves have little to lose from a dissolution of the House of Representatives. However, it is apparent that in the framing of the section attention was given to the question of the time within which his Excellency might effect a double dissolution. This is an indication that it was not intended to limit the time within which a double dissolution might be brought about except to the extent expressly provided by the section. (at p238)

6. For these reasons I am of opinion that s. 57, upon its proper construction, does not have the effect that the power to dissolve the two Houses is lost unless it is exercised without undue delay. If the conditions stated in the first paragraph of the section have been fulfilled in relation to a proposed law, his Excellency may thereafter dissolve both Houses at any time during the life of the Parliament except during the period of six months before the date of expiry of the House of Representatives by effluxion of time. I of course intend to say nothing as to the position that would arise if the Senate, having twice rejected a bill, repented and passed it, or if the House of Representatives agreed to amendments which it had previously refused to accept. (at p238)

7. The fact that the Parliament was prorogued, after the Senate had rejected the proposed laws for the second time but before his Excellency had issued his proclamation dissolving both Houses, seems to me, with all respect, to have nothing to do with the matter. The right to prorogue the Parliament is given to his Excellency by s. 5 of the Constitution. At the time when the Constitution was enacted the effect of a prorogation was well recognized. In Hatsell, Precedents of Proceedings in the House of Commons (1818), vol. 2, at pp. 335-336, it was said that a prorogation concludes a session and (subject to some immaterial exceptions) has the effect that "all Bills, or other proceedings, depending in either House of Parliament, in whatever state they are, are entirely put an end to, and must, in the next session be instituted again, as if they had never been". This is still the rule of parliamentary procedure in England: Erskine May's Parliamentary Practice, 18th ed. (1971), pp. 255-256; Halsbury's Laws of England, 3rd ed., vol. 28, p. 372. The rule is not immutable; it is competent for a legislature to provide by statute, or for a legislative chamber to provide by its standing orders, that after a prorogation consideration of a bill may be resumed as if no prorogation had taken place. In fact Standing Orders 243 and 264 of the Standing Orders of the Senate and of the House of Representatives respectively do make provision for the resumption of proceedings on bills which have lapsed by reason of prorogation, although their provisions are not applicable to the circumstances of the present case. However, this general rule of practice, even if unmodified by statute or standing order, does not affect the operation of s. 57 when the conditions specified in the first paragraph of that section have been complied with. A prorogation does not obliterate all that the Parliament has done. It remains true to say of a bill that the House of Representatives has passed it, and that the Senate has rejected it, notwithstanding that the Parliament is subsequently prorogued. Although the prorogation causes the pending bill to lapse, that does not mean that the previous passage and rejection of the bill have never occurred. The Court is not obliged to act upon a fiction and to hold that the conditions upon which his Excellency may dissolve the two Houses of the Parliament have not been satisfied, when it is shown that in truth they were satisfied. (at p239)

8. It is in England the practice to prorogue the Parliament before dissolving it (May, op. cit., 18th ed., p.255; Halsbury, op. cit., p. 373). This practice of course existed before 1901 (see Erskine May's Parliamentary Practice, 10th ed. (1893), pp. 46-47) and it was followed in relation to the Parliament of the Commonwealth until and including the dissolution of the Ninth Parliament in 1925, although the practice appears to have been discontinued since that time (Australian Parliamentary Handbook, 18th ed. (1973), pp. 268-269). It would therefore have been thought natural, when s. 57 was framed, that the Parliament should be prorogued before a double dissolution took place, and it could not have been intended that a prorogation, made with a view to a double dissolution, should have the result of making impossible the very double dissolution contemplated when the Parliament was prorogued. This supports the conclusion that the fact that the Parliament was prorogued at some time after the proposed law was first passed by the House of Representatives does not prevent his Excellency from dissolving both Houses of the Parliament. (at p239)

9. A second and quite separate argument submitted on behalf of the States was that the proclamation issued on 30th July 1974 by his Excellency for the purpose of convening a joint sitting was invalid. That proclamation (omitting formal parts) was in the following terms:

"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 section 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: AND WHEREAS, since that dissolution and the election of the Twenty-ninth Parliament, the conditions upon which the Governor-General is empowered by section 57 of the Constitution to convene a joint sitting of the members of the Senate and of the House of Representatives have been fulfilled in respect of each of the said proposed laws: NOW THEREFORE I, Sir John Robert Kerr, the Governor-General of Australia, do by this my Proclamation convene a joint sitting of the members of the Senate and of the House of Representatives, to commence in the House of Representatives Chamber at Parliament House, Canberra, at 10.30 o'clock in the morning on 6 August, 1974, at which they may deliberate and shall vote together upon each of the said proposed laws as last proposed by the House of Representatives: AND all members of the Senate and of the House of Representatives are required to give their attendance accordingly."

It was submitted that this proclamation was beyond the power of his Excellency in so far as it referred to the members present at the joint sitting deliberating and voting upon each of the six proposed laws, including that intituled the Petroleum and Minerals Authority Act 1973 which, as was held in Victoria v. The Commonwealth (1975) 134 CLR 81 , was not a proposed law which the joint sitting was entitled to consider. There is no provision entitling the Court, in construing a proclamation of this kind, to sever from it any part that is in excess of power and the result, it was submitted, is that the proclamation was entirely invalid and ineffective. A similar argument was advanced in Cormack v. Cope (1974) 131 CLR 432 and although it was unnecessary to pronounce finally upon it, some members of the Court did express provisional views on the question; Barwick C.J. (1974) 131 CLR, at p 459 was inclined to think that the proclamation was invalid, but Menzies, Gibbs, Stephen and Mason JJ. were of a contrary opinion (1974) 131 CLR, at pp 463, 467, 472, 474 . (at p241)

10. By the second paragraph of s. 57 his Excellency is empowered to perform an executive act, namely, to convene a joint sitting of the members of the two Houses of the Parliament. Once a joint sitting is convened the powers and duties of the members present are defined by and derived from the third paragraph of s. 57 and his Excellency has no power to increase or diminish those powers or duties. The section provides that the members present at the joint sitting may deliberate and shall vote together upon "the proposed law", which means any proposed law which answers the requirements of the first two paragraphs of the section (see Cormack v. Cope and Victoria v. The Commonwealth). His Excellency is given no power to authorize or direct the members present at a joint sitting to deliberate or vote upon any particular proposed law. In any case the members who met together on 6th and 7th August 1974 could not effectively vote upon the Petroleum and Minerals Authority Act 1973 which was not a proposed law within s. 57. If the concluding words of the proclamation purported to authorize or direct the members to vote upon the six proposed laws therein mentioned, they were beyond the powers of his Excellency; if they intended to describe the purposes of the joint sitting, they did so incorrectly. Having re-considered what I said in Cormack v. Cope (1974) 131 CLR, at p 451 , I now think that the concluding words of the proclamation were intended to be a description of the purposes of the joint sitting rather than an authorization or direction to the members present at it, but, as will appear, I do not regard this distinction as vital. (at p241)

11. On behalf of the States it was argued that the proclamation must be construed so as to give full effect to all that it contains, and that in the absence of a statutory provision enabling a severance to be effected, the inclusion of the concluding words of the proclamation rendered it entirely invalid. It was submitted that if those words amounted to a direction or authorization they converted the proclamation from one of an executive to one of a legislative character, and that if they are merely descriptive they show that his Excellency intended to convene a sitting of a kind which he had no legal power to convene, namely, a sitting at which the members present should vote upon the Petroleum and Minerals Authority Act 1973. It was accordingly submitted that the proclamation was ineffective to convene a joint sitting for the purposes of s. 57. (at p241)

12. The power which his Excellency purported to exercise was purely executive in character. The first paragraph of s. 57 empowered him to do one thing only - to convene a joint sitting. The section did not require him to employ any particular means for that purpose; it did not require him to issue a proclamation, although no doubt the issue of a proclamation was a natural and appropriate way of signifying in a formal manner that his Excellency has exercised the power given to him. If a proclamation is issued for the purpose of convening a joint sitting under s. 57, it is unnecessary, although it may be convenient, that it should refer to the proposed laws upon which it is expected that the members present at the sitting will vote. The concluding words of the proclamation were therefore an unnecessary addition to its operative provisions. In the case of a legislative instrument that contains some invalid provisions the question of interpretation that arises "is whether, after the extent to which the intended operation of the enactment is invalid has been ascertained, it is nevertheless the expressed will of the legislature that the whole or any part of the rest of the intended operation of the enactment should take effect by itself as a law...." (Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at p 369 ). However, no similar question of interpretation arises in the present case. The question is whether his Excellency did convene a joint sitting. The answer, of course, is that he did - in fact as a result of his act the members of both Houses deliberated and voted together. If the concluding words of the proclamation are regarded as a purported authorization and direction by his Excellency to those present at the joint sitting to deliberate and vote on the six named proposed laws, part of the proclamation was beyond power and invalid but the invalidity of that part does not mean that his Excellency's act of convening a joint sitting should be treated as nugatory. If the concluding words are merely descriptive, the fact that the proclamation unnecessarily and erroneously stated that those present at the joint sitting might deliberate and should vote upon the Petroleum and Minerals Authority Act 1973 did not mean that a joint sitting had not been convened. The ineffective words unnecessarily included in the proclamation did not prevent it from taking effect as an act by which his Excellency convened a joint sitting of the members of both Houses of the Parliament. (at p242)

13. For these reasons I consider that neither of the grounds upon which it was submitted that the provisions of s. 57 were not complied with has been established. In my opinion each of the three Acts must be taken to have been duly passed by both Houses of the Parliament within the meaning of s. 57. (at p243)

14. The question that then arises is whether the Senate (Representation of Territories) Act 1973 is within the legislative power of the Parliament of the Commonwealth. By s. 3(1) of that Act "Territory" is defined to mean a Territory to which the Act applies and by s. 3(2) it is provided that the Territories to which the Act applies are the Australian Capital Territory and the Northern Territory of Australia. Sections 4 and 5 of the Act provide as follows:

"4. Each Territory shall be represented in the Senate by two senators for the Territory directly chosen by the people of the Territory voting as one electorate. 5. (1) A senator for a Territory has all the powers, immunities and privileges of a senator for a State and - (a) shall be included in the whole number of the senators for the purpose of ascertaining the number of senators necessary to constitute a meeting of the Senate for the exercise of its powers and, if present, shall be counted for the purpose of determining whether the necessary number of senators are present; and

(b) shall have a vote on all questions arising in the Senate. (2) The provisions contained in sections 16, 19 and 20 and sections 42 to 48 (inclusive) of the Constitution, to the extent, if any, to which they do not apply, by virtue of the Constitution, in relation to a senator for a Territory, apply, by force of this Act, in relation to such a senator in the same way as they apply in relation to other senators."

It is unnecessary to refer to the other provisions of the Act, which are ancillary to ss. 4 and 5. (at p243)

15. The question whether the Parliament may allow a Territory to be represented in the Senate by a senator having full power to vote is one of considerable importance. It is also one of special difficulty. The striking inconsistency between the sections that govern the question is a remarkable feature of the Constitution. On the one hand the composition of the Senate is determined by s. 7. That section provides (inter alia) as follows:

"The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. ...

Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.

The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General."

To say that the Senate "shall be composed of" senators for each State is not the same as saying that the Senate shall include senators for each State. The ordinary and natural meaning of the statement is that the Senate shall be constituted by such senators; they, and they alone, make up the Senate. The provisions of other sections contained in Pt II of Ch. I of the Constitution strongly support the view that the words of s. 7 were used with that meaning. Sections 8 to 14 all contain expressions that indicate that those sections apply only in relation to senators for the States and although this does not necessarily mean that there may be no other senators, the fact that detailed provisions of that kind are made in respect of senators for the States and that there are no similar provisions in respect of any other class of senator assists the conclusion that the intention of the framers of the Constitution was that expressed in s. 7 - that there should be no senators except for the States. Two other sections are consistent with no other conclusion. Section 15 deals with casual vacancies; it is necessary only to set out its commencing words:

"If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen shall, sitting and voting together, choose a person to hold the place until the expiration of the term ..."

Similarly, s. 21 provides:

"Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened."

These sections clearly proceed on the assumption that every senator shall be a representative of the people of a State. (at p244)

16. On the other hand s. 122 provides as follows:

"The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit."

If these words are viewed in isolation, or in a context excluding Ch. I of the Constitution, they would appear amply to empower the Parliament to enact the legislation now in question. "Representation" is a wide word; its relevant meaning (as given in the Oxford English Dictionary) is "The fact of representing or being represented in a legislative or deliberative assembly, spec. in Parliament . . ." The word "representation" is also used in ss. 121 and 128 and in each of those sections it appears to have a meaning that includes representation by members of the House of Representatives or senators. A law providing that the residents of a Territory should have the right to elect a member of Parliament would be a law allowing "the representation of such territory in either House of the Parliament" within the ordinary meaning of the words used in s. 122. It would, however, be equally true to say that a law providing for the election by those residents of a delegate empowered to sit in the Parliament but not to vote would also answer the description. The power given by s. 122 to allow the representation "to the extent and on the terms" which the Parliament thinks fit would appear to enable the Parliament to decide how many representatives should be appointed for each Territory and whether or not they should have the same powers, rights and privileges as are possessed by other members of the Houses of the Parliament. The section states that the representation may be allowed "in either House" but in this context "either" clearly enough means "each of the two" rather than "one or other of the two" and the fact that the Territories are already allowed representation in the House of Representatives by members who have power to vote (see Australian Capital Territory Representation (House of Representatives) Act 1973 and Northern Territory Representation Act 1922-1968) does not mean that they may not also be allowed representation in the Senate. If the words of s. 122 are given their full effect, that section will provide a source of power pursuant to which the Act in question was validly enacted. (at p245)

17. In Bank of New South Wales v. The Commonwealth (1948) 76 CLR, at p 332 , Dixon J. said that the foundation of the principles of constitutional interpretation is expressed by Higgins J. in Attorney-General (N.S.W.) v. Brewery Employes Union of New South Wales (1908) 6 CLR 496, at pp 611-612 , where he says, "although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting - to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be". In accordance with the ordinary principles of statutory construction we must construe the Constitution as a whole so as to give its provisions, if possible, a meaning that will avoid any inconsistency and that will give effect to all of them. It may be necessary, for this purpose, to restrict the literal meaning of one section to render its provisions harmonious with those of another part of the Constitution. In my opinion the provisions of Pt II of Ch. I are capable of only one meaning; they clearly indicate an intention that the Senate shall be composed only of senators for the States. Section 122 would be quite inconsistent with those provisions if it had the effect that the Senate could include senators elected for a Territory. The two sets of provisions can in my opinion only be reconciled if the word "representation" in s. 122, at least in its application to the Senate, is understood as referring to representation by persons who do not become senators - that is to agents or delegates of a Territory who can speak on its behalf but who do not acquire the rights or status of senators, persons who may be in the Senate but are not of it. Unless s. 122 is given a restricted meaning of this kind it is impossible to harmonize its provisions with those of Pt II of Ch. I or to give any effect to the first paragraph of s. 7. (at p246)

"In a really equal democracy every or any section will be represented, not disproportionately but proportionately. A majority of the electors would always have a majority of the representatives. But a minority of the electors would always have a minority of representatives. Man for man they would be as fully represented as the majority. Unless they are, there is no equal government but a government of inequality and privilege: one part of the people rule over the rest: there is a part whose fair and equal share of influence in the representation is withheld from them; contrary to all just government, but, above all, contrary to the principle of democracy, which professes equality as its very root and foundation." (at p284)

30. Such sentiments pervaded the Constitution of the United States. This spirit of democracy was vigorously asserted in Australia, and motivated the drive towards responsible government and independence from Imperial domination. The framers of our Constitution looked to the United States Constitution. Many of the provisions of our Constitution have obviously been borrowed from the United States model. (at p285)

31. Victoria rightly contended that expressions such as "chosen ... by the people" in s. 24 were directly borrowed from the United States Constitution. From this the argument ran that, as the United States Constitution only allows non-voting delegates to represent the territories in Congress, the same approach should be used in construing s. 122. (at p285)

32. Section 122 however, is a deliberate departure from the United States model. There is little doubt that s. 122 was inserted to ensure that the privilege of membership in each House should not be denied forever to the people of the territories. This was accepted by authoritative textwriters from the earlier days. (at p285)

33. In 1901, Quick and Garran, commenting on s. 122, drew attention to this in The Annotated Constitution of the Australian Commonwealth, p. 973.

"In the United States there being no power to allow the territories to send members to Congress, the organised territories are nevertheless allowed to be represented in Congress by delegates who may speak but not vote. It would seem clear that under this Constitution the Parliament may, if it thinks fit, allow the representation of territories by delegates of the same kind, who, although allowed to sit and speak in the Senate or the House of Representatives, would not be members of either House, or entitled to vote therein. The Parliament may, however, under this section, allow a territory to be represented by actual members in either house; and in that case no terms would be imposed inconsistent with the provisions of the Constitution as to mode of election, tenure, and right to vote. The number of representatives which a territory may be allowed is of course absolutely in the discretion of the Parliament."

In 1902 another acknowledged authority on the Constitution, W. Harrison Moore, wrote in The Constitution of the Commonwealth of Australia, 1st ed. (1902), p. 312:

"In one important respect these territories differ from the territories of the United States. In America, the territories cannot return members to Congress, though they are suffered to send delegates who may lay their views before the legislature. The Commonwealth Constitution enables the Parliament to allow the representation of such territory in either House of The Parliament, to the extent and on the terms which it thinks fit." (at p286)

34. In 1910 in the second edition of the same work he was more emphatic:

"In one respect the territories of the Commonwealth, whether within or without its limits, are more favourably placed than are the territories of the United States. In America the territories can not return members to Congress, though they are suffered to send delegates who may lay their views before the Legislature. Section 122 of the Commonwealth Constitution definitely includes in the power to make laws a power to allot representation in either House of the Parliament to the extent and on the terms which Parliament thinks fit."

The statements by these learned authors are a very powerful support for the validity of the Act. (at p286)

35. If the contention of the plaintiffs is right, and the Parliament is not empowered by s. 122 to allow representation to the territories by way of membership of the Senate, it would follow inevitably that Parliament could not under s. 122 allow representation of territories by membership of the House of Representatives. The consequence would be that the Australian Capital Territory Representation (House of Representatives) Acts 1973 and the Northern Territory Representation Act 1922-1968 would both be invalid. (at p286)

36. The Australian Capital Territory and the Northern Territory would have no membership in either House, and Parliament could not provide for membership of any territory in either House unless the Constitution was altered. This could only be done in the mode prescribed by s. 128 of the Constitution. It could well be argued that such an alteration would not become law unless the majority of the electors voting in every State approved the proposed law (see the final paragraph of s. 128). (at p286)

37. The permanent deprivation of representation by membership in the Senate or the House of Representatives is a serious exclusion from the democratic process. These houses are our most important political institutions, the principal organs of our democracy; their decisions are vital to every Australian. Their importance to the people of the territories is not less than their importance to the people of the States. It is contrary to the democratic theme of the Constitution that Parliament should not be able to allow representation by membership in either House to territories at the time and on the terms which the Parliament considers appropriate. (at p286)

38. It has been argued in this case, as in a number of others, that the Constitution should not be construed in a way that gives Parliament powers it might abuse. In this case, the argument is that s. 122 must be read down to exclude altogether the power of Parliament to allow any members in either House from any of the Territories, because if it is not read down, Parliament might abuse its power by allowing absurdly large numbers of senators from these two Territories or from the small island Territories or even the Antarctic Territory. (at p287)

39. There is no such principle of construction. It is not in accordance with the respect that should characterize the relationship between Parliament, the Executive Government, and the Judiciary. (See The Constitution of the United States of America, Analysis and Interpretation, U.S. Senate Document No. 92-82 (1973) (formerly edited by Corwin), p. 681.) The framers of the Constitution did not distrust Parliament. In section after section, they left it to Parliament to provide for, or modify the provision for, important subjects. The expression, "until the Parliament otherwise provides", is to be found in numerous sections. (at p287)

40. It was further asserted for the plaintiffs that the Australian Capital Territory and the Northern Territory "are in a position of tutelage" (defined as meaning that they are "in a state of learning") and are not fit for the representation by membership in either House denied to them by the Constitution until they become States. Each of these Territories has a considerable and growing community, significant in comparison with at least the smaller States. Their people pay taxes to the Government of Australia. The Parliament makes laws governing their affairs. Without membership in the Houses, their situation is "taxation without representation". These Territories may never become States. There may be constitutional and other obstacles to their attaining Statehood. (at p287)

41. The representation they have been given by this Act can only be extended by an Act of Parliament. This is a protection against abuse of the provisions. (at p287)

42. Another protection against Parliament being "swamped" with Territorial members may be derived from the provision of s. 24 of the Constitution (see Wesberry v. Sanders (1964) 376 US 1 (11 Law Ed 2d 481) ). (at p287)

43. My conclusion is that the Act is within the legislative powers of Parliament. (at p287)

44. I turn now to the question of whether the procedures of s. 57 of the Constitution were observed in respect of each of the three Acts. (at p288)

Implied Limitations of Time in Section 57

45. The plaintiffs contended that there is an implied limitation in s. 57 that if an opportunity for a double dissolution, justified in respect of a particular proposed law, is not acted upon promptly, the opportunity for the double dissolution lapses in respect of that proposed law. They contended that there should be read into s. 57 an adverb or adverbial clause of time such as "thereupon" or "within a reasonable time" as a condition of the exercise of the power of the Governor-General to dissolve both Houses, in order to give effect to the purpose of the section, which is to use an extraordinary mechanism to resolve deadlocks between the two Houses. They contended that the double dissolution should not be available for "stale" deadlocks. (at p288)

46. There is no limitation on the number of proposed laws which may be passed at one joint sitting if the requirements of s. 57 have been met in respect of each proposed law. (See Cormack v. Cope (1974) 131 CLR 432 ). (at p288)

47. After the second passage of each of the proposed laws by the House of Representatives, the Senate defeated a motion on each bill that it be now read a second time. The effect of this is correctly stated in Odgers, Australian Senate Practice, 4th ed. (1972), p. 253. Strictly, it was not a rejection of the bill, but was certainly a failure to pass. (at p288)

48. Some months elapsed between the Senate's negativing of the motions for second readings and the double dissolution. In the case of the Commonwealth Electoral Bill (No. 2), the interval was nearly eight months, and in the case of others, about five months. The plaintiffs contended that, because of these intervals, the procedures of s. 57 were not observed. As there was only a failure to pass and not strictly a rejection, it is questionable whether there was any interval at all. The failure to pass continued. At the time of the double dissolution, each of the bills was still in the Senate, at the stage of having been read a first time. By appropriate procedures, each bill could have been proceeded with before the double dissolution. (at p288)

49. The only limitations of time on the procedures of s. 57 are three expressed in the section itself. The first is the interval of three months before the second passage of the proposed law by the House of Representatives, but it is not clear exactly when this interval commences. The section has long been regarded as a difficult one, especially on this point. (at p289)

50. The interpretation that the three months' interval dates from the first passing by the House of Representatives has been strongly held and strongly disputed over the years. The Royal Commission on the Constitution in 1929 assumed that it was to be understood in this way. The Report states at p. 9:

"To overcome a deadlock between the two Houses in matters with respect to which their powers are co-ordinate, the House of Representatives may send a Bill to the Senate twice, either in the same session or in successive sessions, with an interval of three months between the two occasions, and if there is still a deadlock both Houses may be dissolved simultaneously. If the dispute continues after the election, the questions involved may be decided at a Joint Sitting. The House of Representatives cannot force a double dissolution in the last six months of its own life." (at p289)

51. I agree with the view of Jacobs J. on measurement of the interval in the Petroleum and Minerals Authority Case (1975) 134 CLR 81 at pp 194-198 . (at p289)

52. My conclusion is that it should be measured from the first passing by the House of Representatives. (at p289)

53. The second limitation of time is that the second passing of the House of Representatives must be in the same or the next session of Parliament. Thus, one intervening prorogation does not interrupt the procedures of s. 57. (at p289)

54. The third limitation of time is that "the dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time". Section 28 provides that every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be dissolved earlier by the Governor-General. (at p289)

55. These three limitations of time were not exceeded in respect of any of the three Acts, and there is no justification in the text of s. 57 or the rest of the Constitution for implying any other limitation of time. The argument against doing so is strengthened by the consideration that if an issue whether a delay was unreasonable is justiciable, then the judiciary would be involved in attempting to resolve questions at the heart of the political process, far removed from the traditional exercise of judicial power. (at p289)

Prorogation

56. The plaintiffs contended that if there is a prorogation after the sequence of events necessary for a double dissolution has occurred, and before the Governor-General has dissolved both Houses, the sequence leading to the double dissolution is ended and the double dissolution is not available. They contended that when the Governor-General prorogued the Parliament on 14th February 1974 he must be deemed to have made an election and declined to exercise his power to dissolve Parliament, and that he then became unable to do so in respect of the three proposed laws. They contended that the House of Representatives would have to recommence completely if it wished to pursue the s. 57 procedures, and therefore the double dissolution on 11th April 1974 was unauthorized. (at p290)

57. Section 5 of the Constitution provides:

"5. The Governor-General may appoint such times for holding the session of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives. After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs. The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth." (at p290)

58. Section 6 requires that there shall be a session of the Parliament at least once in every year so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session. (at p290)

59. Prorogation ends a session of Parliament. It is a prelude usually to the appointment of another session and sometimes to the dissolution of the House of Representatives. The power to dissolve the House of Representatives is of course unaffected by preceding prorogation, and the suggestion that the power to dissolve both Houses is precluded by a prior prorogation is incorrect. (at p290)

60. The history of prorogation shows that it does not interfere with the power to dissolve. Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 10th ed. (1893), p. 46, current at the time of federation, asserted that the Parliament of the United Kingdom was usually dissolved by proclamation, after having been prorogued to a certain day. The practice was followed afterwards in the United Kingdom (see May, op. cit., 18th ed. (1971), p. 255). For many years in Australia, it was the practice of the Governor-General to prorogue Parliament before dissolving the House of Representatives. Logically, a dissolution precludes a prorogation, but a prorogation does not preclude a dissolution. The same considerations apply to a double dissolution. The power to dissolve both Houses is not lost by a previous prorogation. (at p291)

61. The only relevance of prorogation to procedures of s. 57 is that the second passing of the proposed law by the House of Representatives must occur in the same or the next session as the first passing. This means there must be no more than one prorogation between the first and the second passings. This specific reference indicates strongly that the occurrence of sessions, and therefore of prorogations, is otherwise irrelevant. It would not matter how many sessions occur after the second passing by the House of Representatives before the double dissolution. It would not matter how many sessions occur before the joint sitting in the Parliament elected after the double dissolution. (at p291)

The Proclamation

62. In the Petroleum and Minerals Authority Case (1975) 134 CLR 81 , this Court declared the Petroleum and Minerals Authority Act 1973 invalid on the grounds that failure to observe the procedures of s. 57 precluded the affirming of the proposed law at the joint sitting. The plaintiffs contended that because the proclamation convening the joint sitting referred to this Act, the proclamation, the joint sitting and all business done at the joint sitting were invalid. (at p291)

63. The proclamation dated 30th July 1974 was in these terms:

"WHEREAS a Proclamation made on 11th April 1974 by the Governor-General of Australia then holding office recited that the conditions upon which the Governor-General is empowered by section 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: AND WHEREAS since that dissolution and the election of the Twenty-ninth Parliament, the conditions upon which the Governor-General is empowered by section 57 of the Constitution to convene a joint sitting of the members of the Senate and of the House of Representatives have been fulfilled in respect of each of the said proposed laws:

NOW THEREFORE I, Sir John Robert Kerr, the Governor-General of Australia, do by this my Proclamation convene a joint sitting of the members of the Senate and of the House of Representatives, to commence in the House of Representatives Chamber at Parliament House, Canberra at 10.30 o'clock in the morning on 6 August 1974 at which they may deliberate and shall vote together upon each of the said proposed laws as last proposed by the House of Representatives." (at p292)

64. Section 57 authorizes the Governor-General to convene a joint sitting of the members of the Senate and the House of Representatives, and a proclamation is a convenient method of doing this. The Governor-General sent a message to each House enclosing a copy of the proclamation. The consequence of the Court's decision in the Petroleum and Minerals Authority Case (1975) 134 CLR 81 , that the procedures of s. 57 were not observed in respect of the Petroleum and Minerals Authority Act 1973, does not mean that each of the other proposed laws affirmed by the joint sitting are invalid. The reasons given by the Governor-General for convening the joint sitting have no more operative effect than his reasons for convening any meeting of Parliament. (at p292)

65. The practice in both Houses in the United Kingdom, and in our House of Representatives, at the beginning of each session is to introduce a bill and read it a first time, before the opening speech containing the reasons for convening Parliament is reported. This tradition asserts their right to deliberate without reference to the immediate cause of the summons. The joint sitting was held in accordance with rules and orders made by concurrent resolutions of each House pursuant to s. 50(ii) of the Constitution. The Houses declared pursuant to s. 50(i) that any joint sitting was a proceeding in Parliament. (at p292)

66. The proclamation in terms of s. 57 convened a joint sitting of the members "... at which they may deliberate and shall vote together upon each of the said proposed laws as last proposed by the House of Representatives". The authorization or direction to the members was not compulsory. It mistakes the nature of the Houses of Parliament to suppose that it was. They could not be required by the Governor-General to deal with each of the laws, or prevented by him from debating or voting on any other subject. And this Court could not interfere with their deliberations. (The Bill of Rights, art. 9 stated that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament (1 Wm and My Sess. 2 c. 2. See Constitution s. 49; Cormack v. Cope (1974) 131 CLR 432 ). (at p293)

67. In any event, the suggestion that proceedings of Parliament may be invalid because the reasons assigned for convening the sitting included business outside the powers of the sitting is alien to the historical and existing concept of Parliament. It was proper and desirable for the proposed laws to be included in the Proclamation dissolving both Houses so that in the ensuing election the public might know the reasons for the Governor-General's decision. (at p293)

68. It was also proper and desirable to include the proposed laws in the Proclamation convening the joint sitting so that members of both Houses and of the public might know the reasons of the Governor-General for convening the joint sitting. (at p293)

69. The complaints about the language of the proclamations, and contentions that defects in form invalidated the joint sitting seek to apply by analogy rules applicable to lesser bodies such as are created by parliaments. Any attempt to apply them to Parliament is an exercise in the absurd. (at p293)

Justiciability

70. The issues raised by the States require a determination whether the procedures of s. 57 were observed in respect of each of the three proposed laws, whether the Governor-General was authorized to grant the double dissolution of April 1974, and whether the joint sitting of August 1974 was not validly convened because of a defect in the Proclamation. (at p293)

71. In my opinion, these issues are non-justiciable. (at p293)

72. The decision whether the procedures in s. 57 for a double dissolution had been observed is a political decision, confided by the Constitution, not to the judiciary, but to the Governor-General. The decision is to be made by the Governor-General on the advice of the Executive Council (Constitution s. 62). It is a high political responsibility, to be determined on political and not judicial considerations. As Griffith C.J. stated:

"... the jurisdiction of the High Court, if any, is judicial and not political. So far, therefore, as a controversy requires for its settlement the application of political as distinguished from judicial considerations, I think it is not justiciable under the Constitution." (South Australia v. Victoria (1911) 12 CLR 667 at pp 674-675). (at p293)

73. The judiciary is not equipped to investigate circumstances which traditionally and properly have been taken into account in determining whether the requirements of s. 57 have been met (see the judgment of McTiernan J. in the Petroleum and Minerals Authority Case (1975) 134 CLR 81 at p 135-138 ). (at p294)

74. The decision to dissolve both Houses means an immediate reference to the electorate. This emphasizes the political aspect of the issues. I agree generally with what was said by McTiernan J. on the justiciability of the questions arising from s. 57 in the Petroleum and Minerals Authority Case. The remarks of Griffith C.J. on sections of the Constitution almost adjacent to s. 57 and also relating to proposed laws are relevant:

"Sections 53 and 54 deal with "proposed laws" - that is, Bills or projects of law still under consideration and not assented to - and they lay down rules to be observed with respect to proposed laws at that stage. Whatever obligations are imposed by these sections are directed to the Houses of Parliament whose conduct of their internal affairs is not subject to review by a Court of law." (Osborne v. The Commonwealth

(1911) 12 CLR 321, at p 336 ). (at p294)

75. The Constitution expressly entrusts the decision on questions arising under s. 57 to the Governor-General. The assumption of jurisdiction by the Court is an unconstitutional intrusion into his sphere. It means that a political decision, made in the exercise of non-judicial power and on non-judicial considerations, is subjected to review by this Court in the purported exercise of judicial power and on that evidence only which is admissible in a court. (at p294)

76. However, as a majority of the Court has held that such an issue is justiciable (see Petroleum and Minerals Authority Case (1975) 134 CLR 81 ), I have dealt with the issues as if they were justiciable. (at p294)

77. Apart from the s. 57 issues, a declaration is sought that the Senate (Representation of Territories) Act 1973 is beyond the powers of the Parliament and invalid. Australia by its demurrer signified its intention to argue that the plaintiff had no standing to seek that relief. This argument was not put at the hearing, unless it is not distinguishable from the argument on justiciability. (at p294)

78. In my opinion, the issue is justiciable and there is no reason to doubt that a state has standing to seek the relief. (at p294)

79. The answers to the questions should be that each of the Acts was duly passed by both Houses of Parliament within the meaning of s. 57 of the Constitution, but that the question is not justiciable; the Senate (Representation of Territories) Act 1973 is within the legislative powers of the Parliament, and that this question is justiciable. (at p294)

Orders

WESTERN AUSTRALIA V. THE COMMONWEALTH.
The questions asked in the Case Stated in Principal Registry matter No. 60 of 1975 (No. 16 of 1974 Western Australia Registry) are answered as follows:
(1) Is the Senate (Representation of Territories) Act 1973 an Act duly passed by both Houses of Parliament within the meaning of s. 57 of the Constitution?
Answer: Yes.
(2) Is the Senate (Representation of Territories) Act 1973 in whole or in part invalid as being beyond the legislative powers of the Parliament of the Commonwealth?
Answer: No. (3) Are the questions numbered (1) and (2) above justiciable? Answer: Yes.

The questions asked in the Case Stated in Principal Registry matter No. 61 of 1975 (No. 17 of 1974 Western Australia Registry) are answered as follows:
(1) Is the Commonwealth Electoral Act (No. 2) 1973 an Act duly passed by both Houses of Parliament within the meaning of s. 57 of the Constitution?
Answer: Yes.
(2) Is the question numbered (1) above justiciable?
Answer: Yes.

The questions asked in the Case Stated in Principal Registry matter No. 62 of 1975 (No. 18 of 1974 Western Australia Registry) are answered as follows:
(1) Is the Representation Act 1973 an Act duly passed by both Houses of Parliament within the meaning of s. 57 of the Constitution?
Answer: Yes. (2) Is the question numbered (1) above justiciable? Answer: Yes.

NEW SOUTH WALES V. THE COMMONWEALTH.
The questions asked in the Case Stated in Principal Registry Matter No. 163 of 1974 are answered as follows:
(1) Is the Commonwealth Electoral Act (No. 2) 1973 an Act duly passed by both Houses of Parliament within the meaning of s. 57 of the Constitution?
Answer: Yes.
(2) Is the question numbered (1) above justiciable?
Answer: Yes.

The questions asked in the Case Stated in Principal Registry Matter No. 164 of 1974 are answered as follows:
(1) Is the Senate (Representation of Territories) Act 1973 an Act duly passed by both Houses of Parliament within the meaning of s. 57 of the Constitution?
Answer: Yes.
(2) Is the Senate (Representation of Territories) Act 1973 in whole or in part invalid as being beyond the legislative powers of the Parliament of the Commonwealth?
Answer: No.
(3) Is the Representation Act 1973 an Act duly passed by both Houses of Parliament within the meaning of s. 57 of the Constitution?
Answer: Yes. (4) Are the questions numbered (1) , (2) and (3) above justiciable? Answer: Yes.

QUEENSLAND V. THE COMMONWEALTH.
Demurrer allowed with costs.

Declare that the Senate (Representation of Territories) Act 1973 is a valid law of the Commonwealth.