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Published online by Cambridge University Press: 24 January 2025
Political controversies in New South Wales and Canada recently have focused public attention on the constitutional practice of proroguing parliament. They have also shone a light on two lingering areas of uncertainty that surround its operation under the Commonwealth Constitution. This article seeks to clarify these two muddy areas of the law concerning prorogation. The first is the effect of prorogation on the Senate and its committees. Since Federation, the Senate has purported to authorise its committees to continue to function notwithstanding a prorogation of the Parliament. However, it is argued that this practice is unsupported by the provisions of the Constitution and the Senate has no such power. Second, the article examines the operation of the conventions that constrain the Governor-General's power to prorogue. Prorogation generally is exercised on the advice of the Prime Minister. However, this article contends that where a Prime Minister seeks to prorogue Parliament to avoid a vote of no confidence, the Governor-General will have a discretion to reject the advice. It may also be open to the Governor-General to reject an advice to prorogue where the purpose is to avoid scrutiny of a fundamental constitutional illegality. In Australia, the uncertainties that surround prorogation, coupled with the now precarious political landscape in Canberra, create the very real possibility of a prorogation crisis at the Commonwealth level. This article provides a response to these uncertainties. In doing so it offers a solution to how a prorogation crisis can be resolved, whilst maintaining the fine balance of power in our constitutional system.
Thanks to Professor Anne Twomey for her assistance with this article and James Mack for his comments on an earlier version. Contact: eliotolivier@gmail.com
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The Governor General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives…
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I… do by this Proclamation dissolve the House of Representatives as at noon on the twenty-ninth day of September One thousand nine hundred and sixty-nine.
And I discharge Senators from attendance as from that time on that date and until the day appointed for the next session of Parliament.
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23 Letter from Paul Miller, General Counsel of the Department of Premier and Cabinet to Matthew Cross, 3 February 2011, Annexe 2.
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27 Gentrader Report, above n 3, 12.
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29 See, eg, Senate Standing Order 20 authorising the Library Committee to act during recess.
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32 Howard, above n 31 28; see also Odgers, above n 31.
33 (1996) 40 NSWLR 650, 653.
34 (1998) 195 CLR 424, 438-9.
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74 Australian Constitution, s 44. Section 44 of the Constitution reads in part:
Any person who –
(i) is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power; or
(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
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