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Constitution, Section 57 – Further Questions

Published online by Cambridge University Press:  24 January 2025

C K Comans
C K Comans*
Affiliation:
Commonwealth of Australia
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Extract

A number of questions concerning the construction and application of section 57 of the Constitution have now been determined by the High Court. The purposes of this note are to examine critically some implications of these answers and to direct attention to some other technical questions that could arise in the future. The special interest of the writer in these matters arises from the fact that he was closely involved in the preparation of documents in relation to the double dissolutions of 1974 and 1975 and the joint sitting of 1974.

It is not within the purposes of this article to discuss generally the extent to which the Governor-General may be entitled to exercise a personal judgment or discretion in granting or refusing a double dissolution. That is a matter of constitutional propriety rather than the justiciable constitutional law with which this article is concerned.

Information

Type
Research Article
Information
Federal Law Review , Volume 15 , Issue 3 , September 1985, pp. 243 - 251
Copyright
Copyright © 1985 The Australian National University

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References

1 (1974) 131 CLR 432.

2 Ibid 450.

3 (1975) 134 CLR 201.

4 Ibid 261 and 292 respectively.

5 Ibid 261-262.

6 Ibid 265.

7 Ibid 277, where Jacobs J took a contrary view.

8 (1974) 131 CLR 432.

9 (1975) 134 CLR 201, 261-262.

10 Ibid 242.

11 (1974) 131 CLR 432.

12 See Sawer, G, “Singulars, Plurals and Section 57 of the Constitution” (1976) 8 FLRev 45.CrossRefGoogle Scholar

13 Cf G Sawer op cit 55.

14 Section 4 of the Parliament Act 191l (UK) makes provision for altering the enacting words of Acts passed in accordance with that Act.

15 H Reps Deb 1982, Vol 126, 69 (16 February 1982).

16 cf Report on those Bills esp. The Senate Standing Committee for the Scrutiny of Bills Parliamentary Paper No. 2/1982.

17 Debates of the Australasian Federal Convention 1898 Vol II, 2245, 2247 [emphasis added).

18 Ibid 2453.

19 Ibid 2452-2453.

20 Cf Winterton, G, Parliament, the Executive and the Governor-General (1983) 18-19Google Scholar, and Renfree, H E, The Executive Power of the Commonwealth of Australia (1984) 172.Google Scholar Because a Bill passed at a joint sitting is to be taken to have been duly passed by both Houses, section 58 applies to such a Bill. The advice normally given to the Governor-General when a Bill i: presented for the Royal Assent does not expressly advise him to assent to the Bill (H Rep Deb 1977, Vol 106, 719). However, on ordinary principles, the Governor-General would be bound to accept ministerial advice to withhold assent.

21 Debates of the Australasian Federal Convention 1898, Vol II, 2245-2247.

22 See Renfree, H E, The Executive Power of the Commonwealth of Australia (1984), 161Google Scholar, and Report from the Joint Committee on Constitutional Review 1959, para 182.

23 On this matter reference may be made to the draft section 54A, and notes thereon, prepared by the writer for Standing Committee “D” of the Australian Constitutional Convention 1982: Fourth Report to the Executive Committee 1982, Vol 1, 72-73.