Double Disillusion: Legal and Political Aspects of the 1974 Double Dissolution

Abstract

One of the great unanswered questions of the Commonwealth Constitution is whether the House of Representatives and Senate are equal or whether one ultimately has more power than the other. The Whitlam Labor government elected in 1972 faced a Senate elected in 1967 and 1970. Despite Senate obstruction, Whitlam proceeded with an ambitious legislative programme through 1973 and into 1974. By April 1974, six bills appeared to provide a “trigger” for the use of the Section 57 deadlock resolution procedure in the Constitution. Section 57 provides that if a bill has been twice passed by the House of Representatives and twice rejected by the Senate, the Governor-General can dissolve both houses and an election is held. If the government is returned and wishes to proceed with the trigger bills, it can again pass them through the House and if they are again rejected by the Senate, the Governor-General can convene a joint sitting of the two houses at which, if the bill is approved by an absolute majority, it is deemed to be passed. Major obstruction in the Senate, including a threat by the Opposition to block supply, led Whitlam to seek a double dissolution, hoping to gain a majority in both houses or, failing that, the opportunity to pass the trigger bills at a joint sitting. The ensuing election saw the return of the Whitlam government in the House but continuing to lack a majority in the Senate. This led to the only joint sitting in federal history, in which all six trigger bills were passed. But there was a constitutional sting in the tail when the Petroleum and Minerals Authority Act was subsequently found by the High Court not to have been validly passed. This case is argued to have made s57 potentially unworkable. The 1974 double dissolution stands in stark contrast to the 1975 double dissolution, which is argued here to be its “Evil Twin.” There have been three further double dissolutions since 1975: 1983, 1987, and 2016, but no more joint sittings. In 1987, there was set to be a joint sitting on the proposal for an identity card, but this was thwarted on a technicality. So the 1974 double dissolution achieved the objective of breaking a deadlock but at the cost of revealing a way for a determined Senate to make s57 unworkable.