What happens to Bills being considered in Commonwealth Parliament when an election is called?

Friday 6 May 2022 @ 1.14 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

The 2022 election has now been called, and the Governor-General has issued a statement proroguing Parliament and dissolving the House of Representatives.  Many bills were still "on the Notice Paper" at the time this occurred - being considered by Parliament without having passed both houses.  This article discusses what happens to these bills, both for the Parliament, and for customers tracking these bills in LawOne.

For the Commonwealth Parliament, there are separate procedures depending on whether the Bill is being considered in the House of Representatives or the Senate. Ultimately all Bills lapse before the commencement of the new Parliament, and their statuses in LawOne are changed to "Not in Current Session". This occurs on two separate dates that reflect the different procedures.

Dissolution and Prorogation

Under section 5 of the Commonwealth of Australia Constitution Act, the Governor-General has the power to:

“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.”

Prorogation is the term used to refer to the end of a Parliamentary session. Prorogation is historically an aspect of the British parliament that derives from the power of the monarch to decide when Parliament sits. 

Dissolution is the term used when referring to the end of a Parliament – an election follows a dissolution. Prorogation and dissolution are sometimes used interchangeably, but they have different meanings.

The Governor-General does have the power to dissolve the Senate, as well as the House of Representatives, if a number of constitutional requirements (found in section 57 of the Constitution) are met.  This is referred to as a “double dissolution” election, and last occurred in 2016. 

Current convention is for the Governor-General to issue a proclamation stating that Parliament is prorogued, and the House of Representatives is dissolved. The Senate is otherwise a “continuing house”, since half its members are up for election every three years. 

As such, Bills that are before the House of Representatives are treated differently to those considered by the Senate, at the time the election is called and the proclamation is issued.

House of Representatives Bills

The effects of dissolution include that:

“All proceedings pending come to an end—that is, all business on the Notice Paper lapses.” (House of Representatives Practice, p 221)

In LawOne, Bills that are being considered by the House of Representatives have their statuses changed to “Not in Current Session”, and an event is added with details of the prorogation and dissolution of the Parliament, once this has been formally gazetted.

Senate Bills

There is debate about the power of the Senate to carry on business once the Governor-General has prorogued Parliament and dissolved the House of Representatives. According to Odgers’ Australian Senate Practice (“Odgers”) at page 605),

"the question whether prorogation prevents the Senate meeting …  has arisen from time to time but …has not been conclusively determined."

Odgers says at p 199:

"The Senate has not met during a period when the House was dissolved, but Senate committees have often done so, and have also often met after a prorogation. Proceedings at such meetings have included the hearing of evidence in public session. Committee reports have also been presented. If the Senate were to meet after a prorogation, the business before the Senate would be the business pending at the prorogation, and it would be for the Senate to determine which business it should pursue. The Senate’s agenda, and those of its committees, are therefore regarded as continuing until the day before the opening of the next session."

In LawOne, Bills that were considered by the Senate when Parliament is prorogued remain “Current”, until the day before the opening of the new Parliament, in order to reflect this distinction. They are then changed to “Not in Current Session”, and an event is added with text explaining that the Bills have lapsed before the commencement of the new Parliament.

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