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House of Representatives                                Ch 13                                                 p 475

High Court cases relating to the joint sitting

The validity of the joint sitting and the validity of certain laws passed by the joint sitting were the subject of a number of cases brought before the High Court. ¹

The Governor-General’s proclamation of Tuesday, 30 July 1974, convened the joint sitting for 10.30 a.m. the following Tuesday, 6 August. On Thursday, 1 August, a writ was filed in the High Court by two opposition Senators, Senator the Hon. Sir Magnus Cormack and Senator James Webster, challenging the legality of the joint sitting and seeking an interlocutory injunction to prevent it being held. ²

On 2 August writs were served on the Speaker (Mr J. F. Cope), the President of the Senate (Senator J. O’Byrne), the Prime Minister (Mr E. G. Whitlam), the Clerk of the House (Mr N. J. Parkes), the Attorney-General (Senator L. Murphy), the Governor-General (Sir John Kerr) and the Clerk of the Senate (Mr J. R. Odgers) to appear before the High Court of Australia. On 2 August the Speaker informed the House that writs had been served on the Clerk and himself and presented certain documents. ³ The High Court considered the matter on Friday, 2 August, and Monday, 5 August, but refused to grant the interlocutory injunction sought to prevent the joint sitting being held.

The suit principally sought to have the High Court:

The case was heard before Chief Justice Barwick and Justices McTiernan, Menzies, Gibbs, Stephen and Mason. The Court ruled that more than one proposed law could be dealt with in a double dissolution and at a joint sitting. In his judgment Chief Justice Barwick stated that there was nothing in the section, or in the evident reasons for its enactment, which required that only one proposed law should be so discussed and voted upon.

On the question that the listing of the six bills in the joint sitting proclamation went beyond what was required by the Constitution, the Chief Justice stated that it was no part of the Governor-General’s function to determine what should occur at a joint sitting or to direct what proposals might be discussed or not discussed at such a sitting or what was the purpose of the joint sitting; that was determined by the Constitution in the third paragraph of section 57.

Menzies J stated that the power given to the Governor-General was simply to convene a joint sitting and it was not for the Governor-General to prescribe what may occur at such sitting.

McTiernan J was of the opinion that neither proclamation (that is, double dissolution and joint sitting) upon its proper construction contravened section 57. He saw no reason for declaring either of the proclamations to be invalid.

Gibbs J stated that, in his opinion, the Governor-General had no power to direct the members present at the joint sitting upon what proposed laws they may deliberate and should vote, but that the inclusion of a direction of that kind did not affect the validity of the proclamation assuming it to be otherwise valid.

Stephen J stated that the section itself prescribed what was to be the business of the joint sitting and the terms of the proclamation could not affect this one way or another.

Mason J stated that, if the proclamation was effective to convene a joint sitting, ‘as I happen to think it is’, so long as there was at least one proposed law which answered the description contained in section 57, it did not follow that it had conclusive effect so far as its recitals asserted that, in relation to each of the six bills, the provisions of the section had been satisfied.

In view of the doubt as to whether or not the proposed law(s) should be listed in the proclamation, should any future proclamation convening a joint sitting not list the proposed laws to be considered, it may be necessary to devise a procedure to initiate the consideration of the proposed laws. This could be done by motion by a Minister, and for this purpose some suitable provision may be necessary in the rules.

On the question of whether the Petroleum and Minerals Authority Bill had fulfilled the requirements of section 57, the Court ruled that a declaration should not be made in the interlocutory proceedings but that once the proposed law had been affirmed at a joint sitting it would then be appropriate for the Court to pronounce on its validity.

The validity of some of the bills passed at the joint sitting was in fact later challenged by several of the State Governments. In one judgment the High Court ruled by a majority decision that the Petroleum and Minerals Authority Bill was not one within the meaning and scope of section 57 of the Constitution upon which the joint sitting could properly deliberate and vote, and that it was not a valid law of the Commonwealth. The Court held that the interval of three months had to be computed from the date of rejection of or failure to pass the bill by the Senate and not from the date of the passing of the bill by the House. The Court also held that the Senate had not ‘failed to pass’ the bill on 13 December 1973. ⁴

In a separate judgment the High Court ruled by a majority decision that the Commonwealth Electoral Act (No. 2) 1973 , the Senate (Representation of Territories) Act 1973 and the Representation Act 1973 were Acts duly passed by both Houses of the Parliament within the meaning of section 57 of the Constitution and that the Senate (Representation of Territories) Act 1973 was not invalid, in whole or in part, as being beyond the legislative powers of the Commonwealth Parliament. ⁵

Many aspects of the wording of section 57 were discussed.

Cormack v. Cope (1974) 131 CLR 432.

VP 1974-75/127.

Victoria v. Commonwealth (1975) 134 CLR 81-200 (Petroleum and Minerals Authority Case).

Western Australia v. Commonwealth (1975) 134 CLR 201 (Territories Representation Case); see also Queensland v. Commonwealth (1977) 139 CLR 585.