§ 250. “The Senate may . . Return to the House.”

SUGGESTION OF AMENDMENTS.—The money bills which the Senate cannot amend are bills imposing taxation and bills appropriating money for ordinary annual services. Bills of this description cannot be amended by the Senate, but it may, at any stage, return them to the House of Representatives with a message, requesting the omission or amendment of any item or provision. Under this law the Senate could suggest amendments in the ordinary annual appropriation bills, and in tax bills, such as a bill to impose duties of customs and excise. If the suggestions thus made were not entertained by the House, the Senate would have to pass or reject those bills, as sent from the House, so that the responsibility of final acceptance or rejection would remain with the Senate as if no suggestion had been made. A fierce controversy has taken place with reference to the power conferred on the Senate to suggest modifications in bills which it cannot amend. The argument has been thus summed up by Sir Samuel Griffith: “Whether the mode in which the Senate should express its desire for an alteration in Money Bills is by an amendment, in which they request the concurrence of the House of Representatives, as in other cases, or by a suggestion that the desired amendment should be made by the latter House, as of its own motion, seems to be a matter of minor importance. A strong Senate will compel attention to its suggestions; a weak one would not insist on its amendments.” (Notes on the Draft Federal Constitution, 1897, p. 9.)

There does, however, seem to be a substantial constitutional difference between the power of suggestion and the power of amendment, as regards the responsibility of the two Houses. A short analysis will make this clear. In the case of a bill which the Senate may amend, the Senate equally with the House of Representatives is responsible for the detail. It incorporates its amendments in the bill, passes the bill as amended, and returns it to the House of Representatives. If that House does not agree to the amendments, the Senate can “insist on its amendments,” and thus force the House of Representatives to take the responsibility of accepting the amendments or of sacrificing the bill; whilst the House of Representatives cannot force the Senate to take a direct vote on the bill in its original form.

On the other hand, in the case of a bill which the Senate may not amend, the House of Representatives alone is responsible for the form of the measure; the Senate cannot strike out or alter a word of it, but can only suggest that the House of Representatives should do so. If that House declines to make the suggested amendment, the Senate is face to face with the responsibility of either passing the bill as it stands or rejecting it as it stands. It cannot shelve that responsibility by insisting on its suggestion, because

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there is nothing on which to insist. A House which can make an amendment can insist on the amendment which it has made; but a House which can only “request” the other House to make amendments cannot insist upon anything. If its request is not complied with, it can reject the bill, or shelve it; but it must take the full responsibility of its action. This provision therefore is intended to declare the constitutional principles (1) that the House of Representatives is solely responsible for the form of the money bills to which the section relates; (2) that the Senate may request alterations in any such bill; (3) that if such request is not complied with, the Senate must take the full responsibility of accepting or rejecting the bill as it stands.

ORIGIN OF THE PROVISION.—The origin of the plan permitting the Senate to suggest to the House of Representatives by message the addition or amendment of any items or provisions in proposed laws which it may not amend, is found in the practice of the South Australian Parliament. In 1857 a dispute arose between the Legislative Council and the House of Assembly of that province as to the true meaning and interpretation of the Constitution Act of 1856. The Assembly passed a bill to repeal a tax on the tonnage of shipping and to substitute a wharfage rate. The Council amended the bill. This was resisted by the Assembly, which declared it to be a breach of privilege. A protracted controversy took place between the two Houses, resulting, however, in a compromise. On 23rd August, 1857, the Council passed the following resolutions:—

“(3.) That this Council further declares its opinion that all Bills, the object of which is to raise money, whether by way of loan or otherwise, or to warrant the expenditure of any portion of the same, shall be held to be Money Bills.”

“(4.) That it shall be competent for this Council to suggest any alteration in any such Bill (except that portion of the Appropriation Bill that provides for the ordinary annual expenses of the Government), and in case of such suggestions not being agreed to by the House of Assembly, such Bills may be returned by the House of Assembly to this Council for reconsideration, in which case the Bill shall either be assented to or rejected by this Council as originally passed by the House of Assembly.”

“(5.) That this Council, whilst claiming the full right to deal with the monetary affairs of the province, does not consider it desirable to enforce its right to deal with the details of the ordinary annual expenses of the Government. That on the Appropriation Bill in the usual form being submitted to this Council. this Council shall, if any clause therein appear objectionable, demand a conference with the House of Assembly to state the objections of this Council and receive information.”

On the 17th November, 1857, the House of Assembly passed the following resolution:—

“That, in order to facilitate the conduct of public business, this House of Assembly, whilst asserting its sole right to direct, limit, and appoint, in all Money Bills, the ends, purposes, considerations, conditions, limitations, and qualifications of the tax or appropriation by such Bill imposed, altered, repealed, or directed, free from all change or alteration on the part of any other House, will nevertheless for the present adopt the third, fourth, and fifth resolutions, as agreed to by the Legislative Council on the 23rd August, 1857, and forwarded to this House by message on that day.”

This modus vivendi or compact is fully explained, and its constitutional aspects are learnedly discussed by Sir Richard C. Baker, in an able paper presented by him to the Federal Convention in Adelaide on 8th February, 1898. (See Votes and Proceedings Federal Convention, Melbourne, 250.) The same practice has been adopted by the two Houses of the West Australian Parliament. As to the manner in which the compact has worked, in the colonies whose Parliaments adopted it, the following extracts from speeches delivered in the Federal Convention of 1891 will bear testimony:—

“I would say that, considering the compromise which was arrived at was the compromise which was arrived at in South Australia over twenty years ago, between the Legislative Council of that colony and the House of Assembly, and that that compromise has worked so exceedingly well for that period, we, in making the compromise contained in this bill, have not departed from any powers we possess; that is, we have not gone outside the colonies to adopt a mode by which we may get over the difficulties of coordinate powers between the two Houses. We have, however, adopted a system which has been in operation in one of the colonies for many years, with very happy results. Therefore, we have just as much right to say that by adopting the South Australian

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compromise which has worked so well for so many years we have adopted a compromise which will work well for the Commonwealth of the future, as we have to say that if we had adopted the American system, which I contend exists under different conditions and apart from responsible government, it also would have worked well.” (Mr. Thos. Playford, Conv. Deb., Syd., 1891, p 922.)

“Sir, something of this kind has been and is in operation in at least two colonies in the group. The hon. member, Mr. M‘Millan, seemed to think that the arrangement by which an amendment in a money bill could be communicated by message to the lower house, though nominally in force in South Australia, was not operative. All I can say is, that in the first assembling of our two houses in Western Australia, when this very question came up, we carefully studied matters in South Australia, and we were convinced, from the frequent, the effective, and the conciliatory application of the system that it was a course of procedure that deserved consideration. The result was that in the very first question that arose between our two houses we adopted the South Australian mode of procedure, and in consequence an amendment of a highly desirable character was made in legislation relating to finance. Therefore, I look upon the practice as the established practice of Western Australia as well as of South Australia. This power, so far from being degrading, is really a power which is lodged in another branch of Parliament. I refer to the Governor representing the Queen. Under most of our Constitutions, he can communicate—I do not say as to money bills, but as to other legislation—by message any amendment he thinks it desirable to make in a Bill after it has passed both houses. And the same procedure would be adopted as to dealings between the Senate and the House of Representatives in regard to financial legislation.” (Mr. J. W. Hackett. Id. p. 741.)