Download Word

House of Representatives                                Ch 18                                                 p 633

Different positions taken by the two Houses

The effect of prorogation on committees has been a matter of some debate, and as noted below, the position traditionally taken by the House has not been adopted by the Senate. The practice of the House is reinforced by the following parliamen tary authorities:

The effect of a prorogation is at once to suspend all business, including committee proceedings, until Parliament shall be summoned again. ¹

Committees appointed by standing order for a Parliament are terminated by a dissolution. In the case of committees appointed on a sessional basis, orders appointing them cease to have effect at prorogation. ²

. . . a committee only exists, and only has power to act, so far as expressly directed by the order of the House which brings it into being. This order of reference is a firm bond, subjecting the committee to the will of the House; the reference is always treated with exactness and must be strictly interpreted . . . The House may at any time dissolve a committee or recall its mandate, and it follows from the principle laid down that the work of every committee comes to an absolute end with the close of the session. ³

Even though the standing orders appointing the Library and House Committees until 1998 contained the words ‘shall have power to act during recess’, it is considered that the House alone has no authority to grant such power. There have been a number of instances where a resolution appointing a committee has purportedly empowered the committee to sit during any recess. However, as the resolution of appointment in each case lapsed at prorogation, the purported power was not valid.

On 18 February 1954 the chairman of the Joint Committee on Foreign Affairs was advised by the Minister for External Affairs by letter:

I have had the matter you raised in your letter of the 2nd February looked into—that is, the status of the Joint Committee on Foreign Affairs following on the prorogation of Parliament.

I find that the Solicitor-General’s view is that the Foreign Affairs Committee ceases to exist when Parliament is prorogued.

Despite this view of the Solicitor-General, it was given the power to act during recess when it was appointed for the life of the Parliament in 1959. ⁴

When the Joint Committee on the Australia n Capital Territory was first established as a sessional committee in 1956, it was given power to sit during recess, ⁵ but the power was not included in the terms of the resolution when it was re-appointed in the new session in 1957. ⁶ It was once again given the power to sit during recess when it was appointed for the life of the Parliament in 1959. ⁷

In 1957 the House agreed to a Senate modification to the resolution re-appointing the Joint Committee on Constitution Review, which empowered the committee to sit during any recess. In speaking to the modification the Leader of the House, while acknowledging the correct constitutional position, made the following observation:

. . . We having decided that henceforth we shall have a session of the Parliament annually, and it being the desire, I think, of all members of the Parliament that committees such as the Constitution Review Committee, which has a valuable public service to perform, should continue to function in any period of recess between the prorogation of one session of the Parliament and the formal opening of another, there is sound practical sense in the suggestion that these committees be enabled to continue during any such recess. ⁸

The power to sit during any recess was renewed on the re-appointment of the committee in 1958, ⁹ but not in 1959. ¹⁰

In considering the question of Senate committees having the power to meet after a dissolution of the House of Representatives, a Solicitor-Gen eral’s opinion of 23 October 1972 states, in part:

During a session each House can control its own proceedings, exercise its powers and privileges and adjourn from time to time. However, once the Parliament is prorogued, I think each House would be effected [ sic ] in the same way as the House of Commons. Section 49 of the Constitution, in my view, has this effect, because it provides (there being no legislation of the Commonwealth Parliament on the subject) that the powers, privileges and immunities of the Senate and the House of Representatives and the members and the committees of each House shall be those of the Commons House of Parliament of the United Kingdom and of its members and committees, at the establishment of the Commonwealth. However, quite apart from s. 49, I think support for this view is found in ss. 1 and 5 of the Constitution and the constitutional theory which underlies them. The Houses are called together to exercise their functions as part of the Federal Parliament. At the discretion of the Crown and subject to certain constitutional safeguards the Crown can terminate the session. With the termination of the session, this power to deliberate and pass bills and their ability to exercise these powers as part of the Parliament ceases until they are called together again. It is consistent with this clear position, that between sessions neither they nor their committees should be able to exercise any powers. This could be found inconvenient to the work of committees but I think it is the effect of the provisions of the Commonwealth Constitution.

The same opinion drew attention to possible consequences of committees meeting without having the constitutional authority to do so:

. . . witnesses who gave evidence would not be entitled to the protection of the House and their evidence could be actionable at the suit of third parties or could be used to incriminate them. Likewise statements by [committee members] during hearings would lack the protection which the privileges of the House normally afford to [Members]. In camera hearings may be no protection. Witnesses who were summoned to give evidence would, of course, be well advised to refuse to do so. If they did, the [House] clearly could not meet to punish them. When ultimately it did meet there may be little purpose served in committing them for contempt because by then the [House’s] authority and protection would be available and they would, no doubt, willingly answer questions.

However, other legal authorities have taken a different view of the effect of prorogation on committees. A number of opinions relevant to this matter were presented to the Senate on 19 and 22 October 1984 when the Senate passed a resolution concerning meetings of the Senate or its committees after dissolution of the House. ¹¹ Senate standing orders and resolutions of appointment give most Senate committees the power to meet during recess or following dissolution of the House, and they have done so. ¹²

May , 23rd edn, p. 274.

May , 23rd edn, p. 775. Since 1975 the House of Commons has adopted the practice of appointing the members of many of its committees for the life of the Parliament but they may not meet after prorogation, ‘Dissolution and prorogation: answers to questionnaire’, The Table XLIII, 1975, p. 76.

Josef Redlich, The procedure of the House of Commons , vol. II, Archibald Constable, London, 1908, p. 196.

VP 1959-60/25.

VP 1956-57/368-9.

VP 1957-58/12-13.

VP 1959-60/27-8.

VP 1957-58/24; H.R. Deb. (28.3.57) 339-40.

VP 1958/9-11.

VP 1959-60/111-12.

See Odgers , 11th edn, p. 379.

See Odgers, 11th edn, pp. 358, 363, 379. See for example, hearings of the Senate Select Committee on the Scrafton Evidence, 1 September 2004.