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House of Representatives                                Ch 1                                                 p 6

Dissolution

The ac t of dissolution puts to an end at the same time the duration of the House of Representatives and ipso facto the term of the Parliament. ¹ This alone means that the question of dissolution and how the power of dissolution is exercised is of considerable parliamentary importance because of the degree of uncertainty as to when and on what grounds dissolution may occur. ²

The critical provision of the Constitution, in so far as its intention is concerned, is found in the words of section 28 ‘Every House of Representatives shall continue for three years from the first meeting of the House, and no longer’ ³ to which is added the proviso ‘but may be sooner dissolved by the Governor-General’. The actual source of the Governor-General’s power to dissolve is found in section 5, the effect and relevant words of which are that ‘The Governor-General may . . . by Proclamation or otherwise . . . dissolve the House of Representatives’.

While the Constitution vests in the Governor-General the power to dissolve the House, the criteria for taking this action are not prescribed and, therefore, they are matters generally governed by constitutional convention. In a real sense the exercise of the Crown’s power of dissolution is central to an understanding of prerogative powers and the nature of constitutional conventions.

As described earlier in this chapter, while it is the prerogative of the Crown to dissolve the House of Representatives, the exercise of the power is subject to the constitutional convention that it does so only on the advice and approval of a Minister of State, in practice the Prime Minister, directly responsible to the House of Representatives. The granting of dissolution is an executive act, the ministerial responsibility for which can be easily established. ⁴

The nature of the power to dissolve and some of the historical principles, according to which the discretion is exercised, are illustrated by the following authoritative statements:

Of the legal power of the Crown in this matter there is of course no question. Throughout the Commonwealth . . . the King or his representative may, in law, grant, refuse or force dissolution of the Lower House of the Legislature . . . In legal theory the discretion of the Crown is absolute (though of course any action requires the consent of some Minister), but the actual exercise of the power is everywhere regulated by conventions. ⁵

If a situation arises, however, in which it is proposed that the House be dissolved sooner than the end of its three-year term, the Governor-General has to reassure himself on other matters. This is an area for argument among constitutional lawyers and political historians and is a matter where the conventions and not the text of the Constitution are the chief guide. It is the function of the Prime Minister to advise that the House be dissolved. The most recent practices in Australia support the convention that he will make his proposal formally in writing supported by a written case in favour of the dissolution. It is open to the Governor-General to obtain advice on the constitutional question from other quarters —perhaps from the Chief Justice, the Attorney-General or eminent counsel—and then . . . a solemn responsibility rests on [the Governor-General] to make a judgment on whether a dissolution is needed to serve the purposes of good government by giving to the electorate the duty of resolving a situation which Parliament cannot resolve for itself. ⁶

The right to dissolve the House of Representatives is reserved to the Crown. This is one of the few prerogatives which may be exercised by the Queen’s representative, according to his discretion as a constitutional ruler, and if necessary, a dissolution may be refused to responsible ministers for the time being. ⁷

It is clear that it is incumbent on the Prime Minister to establish sufficient grounds for the need for dissolution, particularly when the House is not near the end of its three year term. The Governor-General makes a judgment on the sufficiency of the grounds. It is in this situation where it is generally recognised that the Governor-General may exercise a discretion not to accept the advice given. ⁸

Th e grounds on which the Governor-General has accepted advice to dissolve the House of Representatives have not always been made public. It is reasonable to presume that no special reasons may be given to the Governor-General, or indeed are necessary, for a dissolution of the House if the House is near the end of its three year term. ⁹

Table 1.1   Early dissolutions of the House of Representatives

( a ) A dissolution of the House of Representatives is counted as ‘early’ if the dissolution occurs six months or more before the date the House of Representatives is scheduled to expire by effluxion of time. The table does not include simultaneous dissolutions of both Houses granted by the Governor-General under s. 57 of the Constitution ( see Ch. on ‘Disagreements between the Houses’).

( b ) The reasons stated in the table may not be the only reasons advised or upon which dissolution was exclusively granted. On three occasions dissolution ended Parliaments of less than two years six months duration where reasons, if any, were not given to the House—for example, the House may not have been sitting at the time.

As far as is known, the majority of dissolutions have taken plac e in circumstances which presented no special features. Where necessary, it is a normal feature for the Governor-General to grant a dissolution on the condition and assurance that adequate provision, that is, parliamentary appropriation, is made for the Administration in all its branches to be carried on until the new Parliament meets. ¹⁰

The precedents in Table 1.1 represent those ‘early’ dissolutions where the grounds, available from the public record, were sufficient for the Governor-General to grant a request for a dissolution. A feature of the precedents is that in 1917, 1955, 1977 and 1984 the grounds given included a perceived need to synchronise the election of the House of Representatives with a periodic election for half the Senate.

On 10 January 1918, following the defeat of a national referendum relating to compulsory military service overseas, Prime Minister Hughes informed the House that the Government had considered it its duty to resign unconditionally and to offer no advice to the Governor-General. A memorandum from the Governor-General setting out his views was tabled in the House:

On the 8th of January the Prime Minister waited on the Governor-General and tendered to him his resignation. In doing so Mr. Hughes offered no advice as to who should be asked to form an Administration. The Governor-General considered that it was his paramount duty (a) to make provision for carrying on the business of the country in accordance with the principles of parliamentary government, (b) to avoid a situation arising which must lead to a further appeal to the country within twelve months of an election resulting in the return of two Houses of similar political complexion, which are still working in unison. The Governor-General was also of the opinion that in granting a commission for the formation of a new Administration his choice must be determined solely by the parliamentary situation. Any other course would be a departure from constitutional practice, and an infringement of the rights of Parliament. In the absence of such parliamentary indications as are given by a defeat of the Government in Parliament, the Governor-General endeavoured to ascertain what the situation was by seeking information from representatives of all sections of the House with a view to determining where the majority lay, and what prospects there were of forming an alternative Government.

As a result of these interviews, in which the knowledge and views of all those he consulted were most freely and generously placed at his service, the Governor-General was of the opinion that the majority of the National Party was likely to retain its cohesion, and that therefore a Government having the promise of stability could only be formed from that section of the House. Investigations failed to elicit proof of sufficient strength in any other quarter. It also became clear to him that the leader in the National Party, who had the best prospect of securing unity among his followers and of therefore being able to form a Government having those elements of permanence so essential to the conduct of affairs during war, was the Right Honourable W. M. Hughes, whom the Governor-General therefore commissioned to form an Administration. ¹¹

A further case which requires brief mention is that of Prime Minister Fadden who resigned following a defeat in the House on 3 October 1941. According to Crisp the Prime Minister ‘apparently relieved the Governor-General from determining the issue involved in the request of a defeated Prime Minister by advising him, not a dissolution, but sending for the Leader of the Opposition, Curtin’. ¹²

The Governor-General is known to have refused to accept advice to grant a dissolution on three occasions: ¹³

The advice of Prime Minister Fisher in the 1909 case consisted of a lengthy Cabinet minute which contained the following summary of reasons:

Your Advisers venture to submit, after careful perusal of the principles laid down by Todd and other writers on Constitutional Law, and by leading British statesmen, and the precedents established in the British Parliament and followed throughout the self-governing Dominions and States, that a dissolution may properly be had recourse to under any of the following circumstances:

(1) When a vote of ‘no confidence’, or what amounts to such, is carried against a Government which has not already appealed to the country.

(2) When there is reasonable ground to believe that an adverse vote against the Government does not represent the opinions and wishes of the country, and would be reversed by a new Parliament.

(3) When the existing Parliament was elected under the auspices of the opponents of the Government.

(4) When the majority against a Government is so small as to make it improbable that a strong Government can be formed from the Opposition.

(5) When the majority against the Government is composed of members elected to oppose each other on measures of first importance, and in particular upon those submitted by the Government.

(6) When the elements composing the majority are so incongruous as to make it improbable that their fusion will be permanent.

(7) When there is good reason to believe that the people earnestly desire that the policy of the Government shall be given effect to.

All these conditions, any one of which is held to justify a dissolution, unite in the present instance. ²¹

According to Crisp ‘The Governor-General was unmoved by considerations beyond ‘‘the parliamentary situation’’ ’. ²² Evatt offers the view that ‘certainly the action of the Governor-General proceeded upon a principle which was not out of accord with what had until then been accepted as Australian practice, although the discretion may not have been wisely exercised’. ²³

See also Ch. on ‘The parliamentary calendar’.

There is among constitutional authorities considerable divergence of opinion on the true nature and exercise of the power. This is well illustrated by the analysis of Evatt in The King and his dominion governors and Forsey in The royal power of dissolution of Parliament in the British Commonwealth .

Section 28 was considered by the High Court in 1975. It was held that an ordinary general election means an election held at or towards the end of the period of three years: Attorney-General (ex rel. McKinlay) v. Commonwealth (1975) 135 CLR 1. Per Barwick C.J .; section 28 contemplates that the ordinary general election will take place in each three years: ibid , p. 29.

Quick and Garran , p. 407.

Eugene A. Forsey, The royal power of dissolution of Parliament in the British Commonwealth , Oxford University Press, Toronto, 1968, p. 3.

Sir Paul Hasluck, The Office of Governor-General , Melbourne University Press, Carlton, 1979, p. 15.

Quick and Garran , p. 464.

It is relevant to any discussion of this discretion to consider the comment (albeit in connection with a very specific set of circumstances) ‘It is one thing to decline to act in accordance with the advice of your Ministers and Law Officers. It is quite another to act positively contrary to that advice, and it is yet another to decline even to seek that advice’ in Colin Howard, ‘A further comment on the dissolution of the Australian Parliament on 11 November 1975’, The Parliamentarian , LVII, 4, 1976, pp. 240-1.

Professor Sawer has commented ‘I would have thought that the precedents raise no doubt at all about the ability of a government to call for a general election at any time during the last six months of its normal existence, and probably earlier’ in Geoffrey Sawer, ‘Dissolution of Parliament in mid-term’, Canberra Times , 6 July 1977.

H.R. Deb. (18.9.25) 2576; see also correspondence between the Prime Minister and the Governor-General in relation to the simultaneous dissolution of 11 November 1975, PP 15 (1979) 5-6 and the dissolution of 30 November 1977, PP 16 (1979) 4.

H.R. Deb. (10.1.18) 2895-6; see also H. V. Evatt, The King and his dominion governors: A study of the reserve powers of the Crown in Great Britain and the dominions , 2nd edn, Cheshire, Melbourne, 1967, pp. 153-6.

L. F. Crisp, Australian national government , 5th edn, Longman Cheshire, Melbourne, 1983, pp. 403-4.

For comment on these precedents see Evatt, pp. 50-4.

No documents in relation to the refusal were made public.

VP 1904/147; see also ‘Motions of no confidence or censure’ in Ch. on ‘Motions’.

H.R. Deb. (17.8.04) 4265.

VP 1905/7; see also ‘Motions of no confidence or censure’ in Ch. on ‘Motions’.

H.R. Deb. (5.7.05) 134-5.

VP 1909/7; see also ‘Motions of no confidence or censure’ in Ch. on ‘Motions’.

H.R. Deb. (1.6.09) 227.

‘Ministerial crisis 1909’, Cabinet minute in connection with the application of the Hon. Andrew Fisher for a dissolution ,  

PP 5 (1914-17) 13.

L. F. Crisp, Australian national government , 5th edn, Longman Cheshire, Melbourne, 1983, p. 402.

H. V. Evatt, The King and his dominion governors: A study of the reserve powers of the Crown in Great Britain and the dominions , 2nd edn, Cheshire, Melbourne, 1967, p. 54.