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House of Representatives                                Ch 13                                                 p 457

The 1951 double dissolution

Following the general election on 10 December 1949 a Liberal-Country Party coalition led by Prime Minister Menzies was returned to power with a majority in the House of Representatives but it was in a minority in the Senate.

On 16 March 1950 the Commonwealth Bank Bill 1950 was introduced into the House of Representatives. ¹ The bill passed the House on 4 May 1950 ² and was introduced into the Senate on 10 May. ³ On 21 June the Senate passed the bill with amendments. ⁴ On 22 June the House disagreed to the Senate amendments, and sent a message to the Senate asking the Senate to reconsider. ⁵ The Senate insisted on the amendments ⁶ and the House resolved that ‘The House insists on disagreeing to the amendments insisted on by the Senate’. ⁷ The Senate received the message from the House to this effect on 23 June. On 10 October the opposition majority in the Senate took control of business in order that the message could be considered in committee of the whole. The Senate again insisted on its amendments. ⁸ The message was received by the House on 11 October but was not considered. ⁹

On 4 October 1950 the Commonwealth Bank Bill 1950 [No. 2], identical to the earlier Commonwealth Bank Bill, was introduced into the House of Representatives. On 11 October the bill was declared an urgent bill and passed by the House. ¹⁰ The bill was introduced into the Senate on 12 October ¹¹ and following its second reading on 14 March 1951 was referred to a select committee. ¹²

On 16 March Prime Minister Menzies wrote to Governor-General McKell advising him to dissolve simultaneously both Houses and sending him supporting opinions from the Attorney-General and Solicitor-General. ¹³ In his letter to the Governor-General, Mr Menzies set out the stages of proceedings on the Commonwealth Bank Bill in both Houses and stated:

. . . there is clear evidence that the design and intention of the Senate in relation to this Bill has been to seek every opportunity for delay, upon the principle that protracted postponement may be in some political circumstances almost as efficacious, though not so dangerous, as straight-out rejection. Since failure to pass is, in section 57, distinguished from rejection or unacceptable amendment, it must refer, among other things, to such a delay in passing the Bill or such a delaying intention as would amount to an expression of unwillingness to pass it. Clear evidence emerges from the whole of the history of the legislation in the Senate.

Mr Menzies then referred in detail to events in the Senate, analysing these events in terms of ‘delay’ and ‘failure to pass’ ( see p. 57 of the second edition). ¹⁴

In addition to stating that grounds existed for a double dissolution in respect of the Commonwealth Bank Bill, Mr Menzies also referred to disagreements between the Houses on the Social Services Consolidation Bill, the Communist Party Dissolution Bill and the National Service Bill, none of which had gone through the constitutional requirements to be the reason for a double dissolution. Mr Menzies said that in considerations surrounding the 1914 double dissolution ‘some importance appears to have been attached to the unworkable condition of the Parliament as a whole’ and stated that ‘the present position in the Commonwealth Parliament is such that good government, secure administration, and the reasonably speedy enactment of a legislative program are being made extremely difficult, if not actually impossible’. ¹⁵

In his foreword to the published double dissolution documents, Mr Menzies wrote on 24 May 1956:

In the course of our discussion, I had made it clear to His Excellency that, in my view, he was not bound to follow my advice in respect of the existence of the conditions of fact set out in section 57, but that he had to be himself satisfied that those conditions of fact were established. ¹⁶

In the concluding paragraph of his advice tendered to the Governor-General, Mr Menzies stated:

I am, of course, at Your Excellency’s service to discuss with you the matters referred to above and also any other aspects of the problem which seem to Your Excellency to merit examination. But my advice to you is, as I have said, that you should forthwith dissolve the Senate and the House of Representatives simultaneously so that the conflicts which have arisen may be authoritatively resolved. ¹⁷

In an opinion submitted to the Governor-General by Mr Menzies, the Solicitor-General stated that he believed that the three month interval before the second passage of the bill through the House of Representatives commenced when the Senate passed the bill with amendments to which the House would not agree. ¹⁸ In Victoria v. The Commonwealth the High Court was not required to reach a conclusion on this particular aspect of s. 57, but comments were made on the point. ¹⁹

When the Senate considered the Commonwealth Bank Bill for the second time and referred it to a select committee it did not actually reject the bill. Therefore to comply with the constitutional requirements for a double dissolution it had to be established that the Senate had ‘failed to pass’ the bill. The Senate Opposition argued that a double dissolution was not justified on the grounds that:

In an opinion submitted to the Governor-General by Mr Menzies, the Attorney-General stated:

The words ‘‘fail to pass’’ in the section are designed to preclude the Senate, upon being proffered a Bill with an opportunity to pass it with or without amendments or to reject it, from declining to take either course, and instead deciding to procrastinate.

In the present circumstances the Senate has had a second opportunity of choosing whether to pass with or without amendments or to reject the proposed law. It has declined to take either course and, unquestionably, has decided to procrastinate. In my opinion, this completely satisfies the words ‘‘fail to pass’’ as properly understood in the section and, in my opinion, the power of the Governor-General to dissolve both Houses has arisen. ²⁰

The Solicitor-General made the following points in his opinion on this matter:

The addition of the words ‘‘fail to pass’’ is intended to bring the section into operation if the Senate, not approving a Bill, adopts procedures designed to avert the taking of either of these definitive decisions on it. The expression ‘‘fails to pass’’ is clearly not the same as the neutral expression ‘‘does not pass’’, which would perhaps imply mere lapse of time. ‘‘Failure to pass’’ seems to me to involve a suggestion of some breach of duty, some degree of fault, and to import, as a minimum, that the Senate avoids a decision on the Bill.

In a recent opinion, Sir Robert Garran enumerated as follows, and in terms which in general I respectfully adopt, the matters to be taken into account in ascertaining the fact of failure or non-failure to pass:

‘‘Mainly, I think, the ordinary practice and procedure of Parliament in dealing with Bills; including facts arising out of the unwritten law relating to the system of responsible government: the way in which the Government arranges the order of business and conducts the passage of Government measures through both Houses, and the various ways in which the Opposition seeks to oppose. It will be material to know what opportunities the Government has given for proceeding with the Bill, and what steps the Senate has taken to delay or defer consideration.

There are many ways in which the passage of a Bill may be prevented or delayed: e.g.

(i) It may be ordered to be read (say) this day six months.

(ii) It may be referred to a Select Committee.

(iii) The debate may be repeatedly adjourned.

(iv) The Bill may be ‘filibustered’ by unreasonably long discussion, in the House or in Committee.

The first of these would leave no room for doubt. To resolve that a Bill be read this day six months is a time-honoured way of shelving it.

The second would be fair ground for suspicion. But all the circumstances would need to be looked at.

The third, if it became systematically employed against the Government, would lead to a strong inference.

But just at what point of time failure to pass could be established, might be hard to determine . . .

In the fourth case too, the point at which reasonable discussion is exceeded, and obstruction, as differentiated from honest opposition, begins, would be very hard to determine. But sooner or later, a ‘filibuster’ can be distinguished from a debate . . .’’

Section 57 cannot of course be regarded as nullifying the express provision in section 53 that except as provided in that section the Senate should have equal power with the House of Representatives in respect to all proposed laws. But it is equally clear that on the fair construction of section 57 a disagreement between the Houses can be shown just as emphatically by failure to pass a Bill as by its rejection or amendment. Perhaps the principle involved can be expressed by saying that the adoption of Parliamentary procedures for the purpose of avoiding the formal registering of the Senate’s clear disagreement with a Bill may constitute a ‘‘failure to pass’’ it within the meaning of the section. ²¹

Mr Menzies made it clear in his memorandum to the Governor-General that he considered that the Senate had adopted parliamentary procedures for the purpose of avoiding the formal registering of the Senate’s clear disagreement with the bill.

On 17 March the Governor-General wrote to Mr Menzies:

I have given most careful consideration to the documents referred to and have decided to adopt the advice tendered in your memorandum. ²²

On 19 March, on the advice of the Government, the Governor-General issued a proclamation referring to the provisions of section 57, citing the Commonwealth Bank Bill and dissolving the Senate and the House of Representatives. ²³

A general election was held on 28 April 1951 and the Menzies Government was returned with a majo rity in both Houses, enabling the Government to effect the passage of the Commonwealth Bank Bill which was assented to on 16 July 1951. ²⁴

VP 1950-51/34.

VP 1950-51/73.

J 1950-51/42.

J 1950-51/93-4.

VP 1950-51/170-1.

J 1950-51/107-8.

VP 1950-51/174.

J 1950-51/123-5. Odgers , 6th edn, gives a more detailed account on pp. 38-9.

VP 1950-51/195.

VP 1950-51/195-7.

J 1950-51/131-2.

J 1950-51/223-4.

Simultaneous dissolution of the Senate and the House of Representatives by His Excellency the Governor-General on 19 March 1951 , PP 6 (1957-58).

PP 6 (1957-58) 10-12.

PP 6 (1957-58) 12.

PP 6 (1957-58) 4.

PP 6 (1957-58) 15.

PP 6 (1957-58) 20-1.

(1975) 134 CLR 81 at 125 per Barwick CJ; 147, 149 and 151 per Gibbs J; 167 per Stephen J; and 187 per Mason J.

PP 6 (1957-58) 16-17.

PP 6 (1957-58) 21-2.

PP 6 (1957-58) 23.

Gazette 19A (19.3.51) 740 a .

VP 1951-53/82; Act No. 16 of 1951.