Opinion No. 1720
POWERS OF THE SENATE
whether Senate has a right to reiterate a request for the amendment of a money Bill: ‘at any stage’
Constitution ss 53-57: Excise Tariff (Spirits) Bill 1906: Appropriation Bill 1921: Constitution Act AmendmenT Act 1915 (Vic)
13 March 1943
The question has arisen whether, the Senate having at any stage returned to the House of Representatives a Bill imposing taxation with a request for its amendment, and the House having refused the request, the Senate may reiterate or press the same request at the same stage.
Section 53 of the Constitution provides inter alia that:
The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications,
This question has arisen many times previously. On a number of occasions the House of Representatives has received a reiterated request. Almost invariably it has, in doing so, passed a resolution reserving its constitutional rights in the matter. On at least two occasions, however–in connexion with the Excise Tariff (Spirits) Bill 1906 and the Appropriation Bill 1921–it has received without protest a reiterated request. On each occasion when the House of Representatives has reserved its own constitutional position the Senate has recorded a declaration of its own constitutional right to press or reiterate a request. The practice of the Parliament therefore has left this difficult question unresolved.
The Constitution itself does not in express terms answer the question either way. At the Melbourne session of the Federal Convention an attempt was made to amend the clause so as to make it deal expressly with the matter, but the proposal was negatived (Melbourne Debates, vol. 2, p 1997). At first sight, the phrase ‘at any stage’ may seem to be in favour of the Senate’s claim. In a parliamentary context, however, these words do not, in our opinion, mean the same thing as ‘at any time and from time to time’. They plainly refer to the recognised stages in the passage of a Bill through the chamber. They negative all possibility that the Senate’s right should be regarded as limited to certain stages only–as the similar right of the Legislative Council in Victoria is limited by the Victorian Constitution Act Amendment Act.(1)
The question is not one of strict law, on which the courts will pronounce. It is a matter of constitutional propriety, as between the Houses themselves. It must be answered by reference to general considerations, drawn from the provisions of sections 53 to 57 as a whole.
These considerations are set out in Quick and Garran(2) as follows:
In the case of a Bill which the Senate may not amend, the House of Representatives alone is responsible for the form of the measure; the Senate cannot strike out or alter a word of it, but can only suggest that the House of Representatives should do so. If that House declines to make the suggested amendment, the Senate is face to face with the responsibility of either passing the Bill as it stands or rejecting it as it stands. It cannot shelve that responsibility by insisting on its suggestion, because there is nothing on which to insist. A House which can make an amendment can insist on the amendment which it has made; but a House which can only ‘request’ the other House to make amendments cannot insist upon anything. If its request is not complied with, it can reject the Bill, or shelve it; but it must take the full responsibility of its action. This provision therefore is intended to declare the constitutional principles (1) that the House of Representatives is solely responsible for the form of the money Bills to which the section relates; (2) that the Senate may request alterations in any such Bill; (3) that if such request is not complied with, the Senate must take the full responsibility of accepting or rejecting the Bill as it stands. (pp. 671–2)
The plain implication of this passage is that the Senate can make a given request but once at any particular stage of a Bill. The consequences of the opposite view were strongly stated by Sir Harrison Moore in discussing the first occasion on which the Senate reiterated a request:
This at once raised questions of serious importance, for if the Senate was at liberty before parting with the Bill to repeat its requests, it was obvious that the distinction between this practice and a power to make and insist on amendments was merely formal. (The Commonwealth of Australia, Second Edition, p 148.)(3)
Virtually identical views have been expressed in the House of Representatives by learned exponents of the Constitution throughout the history of the Commonwealth. In dealing on 3rd September, 1902, with the first reiterated request for amendments in the Customs Tariff Bill, Sir Isaac Isaacs said:
When the Senate, at any stage in its consideration of a measure communicates its difficulties to the House of Representatives, and asks us whether we really intend to adhere to our proposals, we may either say, ‘Yes’, absolutely, or agree to amend or modify those proposals. The measure must then go back to the Senate, and their power of suggestion in regard to it is exhausted, so far as that stage is concerned. Repetition of the request converts it into a demand. If, at a future stage, other difficulties present themselves, it is quite possible, though I pronounce no definite opinion upon the subject, that it may be intended by the Constitution that the Senate shall have another opportunity to formulate new requests for further light as to the will of this House; but it has no right to again challenge the decision of this House in respect to matters in regard to which it has made requests, and has received a definite answer ... (Hansard, Volume 12, p 15691)
In 1933 the present Chief Justice of Australia, Sir John Latham, then Attorney-General, interpreted the constitutional position of the Senate in the same way:
The Senate should recognize that the only practical way in which effect may be given to the words of the section which draw a distinction between making a request at any stage of a Bill and amending a Bill, is by taking the view that a request can be made only once, and that, having made it, the Senate has exercised all the rights and privileges allowed by the Constitution. (30th November, 1933, Parliamentary Debates, Volume 143, page 5249.)
In the Senate, different opinions have been expressed by constitutional lawyers of repute. In 1902, for example, when the Senate first pressed a request, Sir Josiah Symon supported the Senate’s claim on the ground that the Constitution gave the Senate substantially the power to amend, though in the form of a request (Hansard, Vol. 12, p. 15824). This means that the Constitution, in declaring that the Senate may not amend but may request amendments, was contradicting itself, cancelling in the fourth paragraph of section 53 what it had enacted in the second. In the same debate Senator R.E. O’Connor also supported the Senate’s claim to repeat a request, but at the same time made it clear that the House of Representatives had the right at any stage to intimate that no further requests would be received. In other words, Senator O’Connor’s view was that while repetition might sometimes be permissible, vain repetition would be unconstitutional (Hansard, Vol. 12, pp. 15828–9).
In our opinion, the Constitution in denying the right of amendment and conferring the right of request intended a substantial difference. In this we respectfully agree with the views expressed by Sir Harrison Moore, Sir Isaac Isaacs, and Sir John Latham. We think it clear that the Constitution did not intend to stultify itself by giving back in one clause what it had taken away in another. The essence of the difference between request and amendment is that in the case of a request the right of decision as to the form of the Bill rests solely with the House of Representatives. To press a request is to insist upon it–which is a contradiction in terms, and also in our opinion unconstitutional.
[Vol. 35, p.131]
(1) Constitution Act Amendment Act 1915 (Vic), s 33(3).
(2) Quick, J & Garran, RR 1901, The Annotated Constitution of the Australian Commonwealth, Legal Books, Sydney.
(3) Harrison Moore, W 1910, The Constitution of the Commonwealth of Australia, 2nd edn, Maxwell, Melbourne.