Tuesday, February 23, 2010

Problems with prorogation

I hate getting things wrong when pontificating. It's so public! Still, when I do make an error of fact or interpretation I try to correct it. Here I am conscious of the search engine traffic I get, meaning that an error may be repeated.

In Saturday Morning Musings - blogs, blogging and Canada's constitutional crisis I discussed the action of the Canadian Government in proroguing Parliament. A little later, I discussed the same issue in my weekly Express column - Belshaw's World - crisis in the Westminster system. In a letter to the Express (not on line), Dr Fidlon suggested that I was misinterpreting prorogation. He was in fact correct, although I do not think that it affects the core of my argument that the Canadian Government action was constitutionally dangerous.

Given that I have made an error, I thought that I should record the correct facts as I now understand them, at least so far as Australia is concerned.

The Senate web site states:

To prorogue Parliament means to bring to an end a session of Parliament without dissolving either house and, therefore, without a subsequent election. The Constitution gives the Governor-General the power to prorogue Parliament, which is done on the advice of the Prime Minister. Prorogation has the effect of terminating all business pending before the houses, although in certain circumstances it can be resumed in a new session. Parliament does not meet again until the date specified in the proroguing proclamation, or until the houses are summoned to meet again by the Governor-General.

The relevant section of the Australian constitution reads:

5. 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.

Section 5 does not constrain the Governor-General's power. However, the constitutional convention is that the G-G exercises that power upon advice from the Prime Minister.

It is normal for Parliament to be prorogued prior to an election, thus bringing existing business to an end. However, prorogation can occur under other circumstances. Again quoting the Senate web site:

Parliament was frequently prorogued in the early years of federation, and always prorogued prior to the dissolution of the House of Representatives for the purpose of a general election. Between the opening of the first Commonwealth Parliament in 1901 and the end of 1925, it was prorogued sixty times. In the following sixty-seven years it was prorogued on only fifteen occasions, a session often lasting for the whole term of a Parliament. Between 1961 and 1993, Parliament was prorogued only four times, twice for the purpose of allowing openings by the Queen during her visits to Australia in 1974 and 1977. On another occasion, in February 1968, Parliament was prorogued following the disappearance in the sea of Prime Minister Harold Holt in December 1967. On the fourth occasion, Parliament met for one day in November 1969 following an election for the House of Representatives on 25 October and was prorogued until the following March.

The practice of proroguing Parliament prior to the dissolution of the House of Representatives for the purpose of a general election was restored by the Government in 1993.

My confusion lay in my failure to recognise that prorogation could and had occurred in circumstances other than a general election.  Given that mistake, why then do I say that it does not affect my core argument that the Canadian Government's actions were constitutionally dangerous?

Parliament is central to the Westminster system. In the Australian case, the constitution states:

1. The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called "The Parliament," or "The Parliament of the Commonwealth. "

The operations of Parliament are governed in part by the constitution, in part by traditions deeply rooted in history. Governments may propose, but only Parliament can dispose.

The central problem with the Canadian Government's actions in twice requesting the Canadian G-G to prorogue Parliament is that, as I understand them, they were designed to get round Parliament. In the first case, the successful intent was to avoid a no confidence motion that the Government would have lost. In the second case, the Canadian Globe and Mail described the intent in this way:

Prime Minister Stephen Harper has shut down Parliament for two months, killing a pesky inquiry into Afghan detainees, stalling government bills and allowing the Conservatives to take control of the Senate. 

Again as I understand the position, the practical effect is that a procedural clause in the Canadian constitution is being used for political purposes to protect a Government against Parliamentary action.

Could this happen in Australia?  I would like to think that the political outcry would be so great as to prevent it. More broadly, could the power to prorogue be used to allow Executive Government to operate without Parliament?

Well, the answer appears to be yes and no.

Subject to the views of the High Court, a Government could prorogue Parliament and operate so long as it did not require new legislation to do so. This includes promulgation of regulations under legislation. However, this is subject to certain constitutional constraints.

Importantly, clause 6 in the Australian constitution states:  

6. There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

As I read this clause, this places a constitutional time limit on any prorogation. Further, clause 54 states:  

54. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation.

Again as I read this, this clause implies time limits on spending approval as reflected in the annual budget round.

A year or so back, I would have regarded this type of analysis as quite far-fetched. I think that the lesson of the Canadian experience is that a Government prepared to ignore conventions could in fact use the power to prorogue for the purposes of a time limited political coup.    

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