Prorogation by Thomas Moorhead Lawyer Policy and Advocacy, The Law Society of Western Australia
On 7 December 2020, His Excellency the Governor prorogued the two Houses of the Parliament of Western Australia. Prorogation ends a session of Parliament and terminates all business listed on the notice papers of both Houses including matters referred by the Houses to committees.1 This means that all legislation that had not been passed by the WA Parliament, such as the Uniform Law application bills or the Administration Amendment Bill 2018, are wiped off the notice paper and must be reintroduced in the next session of Parliament. Prorogation is usually followed by a period of recess prior to either the opening of a new session or the dissolution of the Assembly before a general election. Parliamentary business cannot be conducted after a prorogation and before the Parliament is recalled. As stated by Erskine May, “the prorogation of Parliament is a prerogative act of the Crown. Just as Parliament can commence its deliberations only at the time appointed by the Queen, so it cannot continue them any longer than she pleases”.2 The term prorogation comes from the Latin prorogatio which referred to the extension of a Roman praetor’s imperium beyond their fixed term.3 In Western Australia, the power to prorogue is found in the Western Australian Constitution,4 in language similar to that in s.5 of the Constitution of the Commonwealth of Australia. Generally, Parliaments consist of only one session, which runs from one election until the next, where the parliament is prorogued prior to being dissolved, however this has not always been the case.5 Parliaments do not have to be prorogued before they can be dissolved, and prorogation can be used in circumstances completely unrelated to elections.
History of Prorogation What appears on the surface as a straightforward matter of parliamentary procedure has a history steeped in blood and intrigue.
Monsieur Francis, Duke of Anjou and Alençon (French: Hercule François; 18 March 1555 – 10 June 1584)
In England, parliaments were regularly prorogued due to community transmission of the plague in London. In 1467 Edward I prorogued Parliament, as “ [the] plague was beginning to hold sway to such an extent that some luminaries of the commons house had caught that plague and died, to the manifest danger of the lord king himself and of the lords and commons who should be present in the said parliament”6 In 1578, Queen Elizabeth I of England prorogued the parliament to avoid debate regarding a potential French suitor, her ‘frog’, the pockmarked and scoliotic Duke of Anjou, 23 years her junior.7 In 1605, parliament was adjourned and then prorogued upon discovery of the now infamous gunpowder plot to blow it up.8 The most notorious prorogation belongs to Charles I who being short of cash in 1628, prorogued parliament following a disagreement about whether the King could raise customs without the consent of the parliament. The parliament remained prorogued for 11 years, resulting in no shortage of acrimony between the Crown and the parliamentarians, and ultimately the beheading of Charles in front of an angry mob at Banqueting House, and the English Civil War.9
Prorogation in the Commonwealth and WA The Commonwealth Parliament was regularly prorogued prior to 1961, however since then it has been prorogued without an accompanying dissolution (i.e., not related to an election) on only four occasions. Two of these, in 1974 and 1977, were for the purpose of allowing openings of parliament by the Queen during visits to Australia. On another occasion, in February 1968, Parliament was prorogued following the mysterious oceanic disappearance of Prime Minister Harold Holt.10 The Parliament does not have to be prorogued prior to dissolution and a general election, and in fact between 1928 and 1990, Federal Parliaments were dissolved without any express prorogation.11
The practice of proroguing immediately prior to dissolution seems to stem from practice in the United Kingdom and may be designed to prevent the Upper House from meeting on its own initiative.12
Annual prorogation? s.4 of the WA Constitution13 provides that: “there shall be a session of the Legislative Council and Legislative Assembly once at least in every year, so that a period of twelve months shall not intervene between the last sitting of the said Council and Assembly in one session and the first sitting of the said Council and Assembly in the next session”. There are differing interpretations of this provision. Some states are ‘strict constructionists’ and prorogue parliament every year to ensure there is a session every year.14 Other states (and the Commonwealth) are ‘non-observant’ and consider that the section is concerned “with a less-than-twelvemonths-interruption rather than with a onceat-least-every-year session”.15 In 2003, the Western Australian Parliament formally departed from the ‘strict constructionist’ view to the ‘non-observant’.16 This had the obvious benefit of Members not having to re-introduce lapsed legislation every year, and not disrupting the work of Parliamentary Committees.17 However, this does not prevent the Governor from proroguing parliament on the advice of the Executive Government, and prorogation can and has been used as a tactic to be employed by Governments in or against a hostile house.18
Notable Contemporary prorogations The 1991 Carmen Lawrence Prorogation19 In 1991 the first female Premier in Australia, Carmen Lawrence, was in the throes of managing the ‘WA Inc’ scandal of her predecessor Brian Burke.20 A Royal Commission into the matter was called by the Premier,21 however the WA Legislative Council, in which the Labor Government held a minority, had also established not
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