§ 266. “A Joint Sitting.”

The joint sitting is not a new contrivance in Parliamentary government. It is founded on the practice of conflicting legislative chambers at times appointing representatives to meet in conference authorized to discuss questions in dispute, and to suggest possible modes of settlement. In that practice, recognized both in Great Britain and her colonies, as well as in the United States, may be found the germ of which the joint sitting elaborated in this Constitution is the development.

After the re-assembling of Parliament the House of Representatives, if disposed to carry on the campaign in favour of the proposed law, is entitled to again pass it with or without amendments which have been made, suggested or agreed to by the Senate, in the last session of the dissolved Parliament. It is again sent to the Senate, which is again, and for the third time, invited to pass it, or to pass it with amendments agreeable to the House of Representatives. If the Senate rejects the bill or fails to pass it with amendments to which the House of Representatives will agree, the Governor-General, acting according to the advice of his responsible ministers, may convene a joint sitting of the members of the Senate and of the House of Representatives. The conduct of the business and proceedings of the joint sitting will be regulated by joint standing rules and orders made and agreed to by the Houses under sec. 50.

The question upon which the members present at the joint sitting “may deliberate and shall vote together” are:—(1) the bill as last proposed by the House of Representatives; and (2) any amendments which have been made by one House and not agreed to by the other. Any such amendments which are affirmed by an absolute majority of the total number of the members of both Houses will be taken to be carried; and the Bill itself, with any amendments so carried, must be voted upon, and if affirmed by a similar “absolute majority” of members it will be presented for the Royal assent just as if it had been passed by both Houses separately.

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MONEY BILLS.—These dead-lock provisions apply to all bills—as well bills which the Senate may not amend as bills which it may amend. But it should be noticed that the section is careful not to give the Senate any power, by means of the joint sitting, to secure any amendment which the Senate could not have made in the first instance. The only questions, besides the Bill itself, which can be voted on at the joint sitting, are amendments “made by one House” and not agreed to by the other. In the case of a Bill which the Senate may amend, amendments which it has made may be voted on at the joint sitting; but in the case of bills which the Senate may not amend, mere suggestions made by the Senate cannot be dealt with at the joint sitting. This section, therefore, does not give the Senate any indirect power of moulding the form of those financial measures for which the House of Representatives is solely responsible.

THE ABSOLUTE MAJORITY.—Under the clause as adopted by the Convention, the proposed law and any amendments had to be carried, not by a simple majority, as in the case of business done in the Houses sitting separately, but by three-fifths of the members “present and voting.” The main reason assigned in the Convention for this special majority was that, as the House of Representatives was twice as strong in numbers as the Senate, it would not be fair to the Senate to invite it to a joint conference at which it would be easily swamped and outvoted by overwhelming numbers. At the Premiers' Conference, 1899, Mr. Reid asked for a simple majority—instead of three-fifths—of the members present and voting; and the matter was compromised by providing for a majority, not of those present and voting, but of all the members of both Houses—or what is concisely called an “absolute majority.” In this way the artificiality of an extraordinary majority was avoided, and at the same time it was ensured that a majority of the Senate could never be defeated at a joint sitting except by a vote which would amount to a majority of a full joint sitting.

The effect of the requirement of an “absolute majority” to carry a proposal is that the opponents of a proposal need not muster in force to defeat it; whether they are present or absent the proposal cannot be carried unless its supporters have an absolute majority, and will be carried if its supporters have that majority. On the other hand, the supporters of the proposal must be present to the required number, or they cannot succeed. In view, however, of the fact that a joint sitting, when it occurs, will be the final stage in a long political struggle, the difference between a simple and an absolute majority loses much of its importance. If the supporters of a proposal do not number an absolute majority, they will be unlikely to win in any case; and if they do number an absolute majority, it is very unlikely that any member of that majority will absent himself and thereby betray his party at the moment when victory is within their grasp.

THE DEADLOCK MACHINERY.—Some of the members of the Convention, representing the more populous colonies, feared that through the principle of equal representation the less populous States would be able to exercise undue influence in the Senate, so as to thwart the will of the popular majority of the whole Commonwealth. At any rate this was the argument as interpreted by Sir Samuel Griffith. (Notes on the Draft Commonwealth Bill, 1899, p. 18.) Thus the whole of this complex and elaborate machinery for the settlements of deadlocks is founded on the assumption that two Representative Chambers, directly elected by the same class of people in all the States, will not work in harmony, but may at times come into deadly conflict.

Should this assumption be well founded, and should the deadlock clause be brought into action with undue frequency, it will not be any evidence against the principle of equal representation, but rather proof of a temporary divergence of interests, and absence of that unity and identity of political growth which in the course of time should weld together the federated community. Such divergences will, no doubt, inevitably disappear, to be succeeded by a permanent tendency to integration, as the resultant of the national elements which pervade the Constitution.

The provision made by this Constitution for the dissolution of the Senate is the latest and greatest experiment in Federal Government. No other second Chamber in

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any federal system is liable to be dissolved on any question of general legislation. By the Swiss Constitution (Art. 120), if the two Chambers are unable to agree on the question whether there shall be a total revision of the Constitution, the question is then referred to the people; and if a majority of the electors voting support a revision, both Chambers are dissolved, and the work of revision devolves upon the new federal legislature. (See Deploigne, Referendum in Switzerland, 1898, p. 129.) But in respect of ordinary legislation there is no such provision. Immunity from dissolution en masse has been hitherto one of the recognized privileges, and certainly the strongest bulwark, of Upper Houses generally. That feeling of constitutional indifference to such disturbing events as general elections has been one of the charms and attractions of the Upper-House-Membership. The precedent, however, has been established once and for all time, and sooner or later it will invade the sacred precincts of most of the second Chambers in the world.

It would be premature as well as unwise to indulge in speculations as to whether its liability to dissolution will tend to weaken the effective power of the Australian Senate. If the Senate is well led, a dissolution may result in its being supported and strengthened by the States. Although the Senate represents the States, as corporate units, it is based on the elective principle, as much as the House of Representatives. It will feel what Goldwin Smith describes as the “sap of popular election in its veins.” In a disagreement with the House, it may assert its views with ability, dignity, and determination, it will fully realize its responsibility to the States, and will insist that its responsibility to its corporate constituents is as great as that of the other chamber to the people as individual units. If an uncompromising attitude on the part of both Houses leads to a double dissolution, the Senate may be reconstituted with added, and not diminished, authority. On the other hand, it is equally possible that the Senate, badly led, may be badly beaten in the appeal to the people and to the States. This much is certain, that the people as final arbiters will be the gainers of power by the liability of both Houses to dissolution.

Royal assent to Bills.

58. When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent267, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure.

The Governor-General may return to the House in which it originated any proposed law so presented to him, and may transmit therewith any amendments268 which he may recommend, and the Houses may deal with the recommendation.

HISTORICAL NOTE.—The clause as introduced in the Sydney Convention of 1891 was in substance the same as this. The first paragraph follows the provisions of the Act for the Government of New South Wales and Van Diemen's Land, 1842 (5 and 6 Vic. c. 76, sec. 31), with the important exception that it makes no mention of the royal instructions. The second paragraph is taken from sec. 36 of the Constitution of Victoria, and sec 28 of the Constitution of South Australia, which are in substantially the same terms. (Conv. Deb., Syd., 1891, p. 763.)

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At the Adelaide session the clause was adopted in substantially the same form. At the Sydney session, a suggestion by the Legislative Assembly of Victoria, to insert “and to Her Majesty's instructions” after “Constitution,” was negatived. (Conv. Deb., Syd., 1897, pp. 778–9.) At the Melbourne session, drafting amendments were made before the first report and after the fourth report.