A functioning Parliament during a time of crisis

As the coronavirus spreads around our cities and towns some of you might be wondering what will happen with our governance. The Commonwealth Parliament is meeting today and perhaps tomorrow with a reduced number of MPs. The two major parties have given each other 30 pairs. This means that 30 Coalition MPs and 30 Labor MPs will not be in the Parliament this week, cancelling out their respective votes while not affecting the overall votes in the Houses.

It is expected that the Parliament will only sit for one or two days so it can pass the first and second stimulus packages.

Why is this important?

The stimulus measures that were recently announced require legislation to be passed before the Government can spend the money. Those $750 cheques and the spending measures for business have to be appropriated by law according to section 83 of the Constitution:

Section 83 Money to be appropriated by law
No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

As the government has announced that it will defer its budget until October, rather than its usual date in May, the Parliament is also in the course of passing extra supply bills to cover government expenditure until the end of November.

If the government needs to spend any additional money on health, hospitals, more stimulus measures etc, furtherlegislation may have to be passed, unless it can be accommodated from the Advance to the Finance Minister (which is the fund that was used to pay for the same-sex marriage postal survey). 

This means that after the first and second stimulus have been passed by the Parliament this week, there may still be a need for the Parliament to reconvene to deal with further measures. The previously scheduled date for the return of Parliament was in May, but this may be altered by a new adjournment resolution passed by the Houses today or tomorrow.

What happens if the Parliament needs to come together to pass more legislation?

Each House is ordinarily adjourned to a date and time fixed by the House. If the House of Representatives needs to sit earlier, the Standing Orders provide that the Speaker may alter the day and hour for the next meeting of the House and inform Members. Ordinarily this is only done at the Government’s request. The President of the Senate may also fix an earlier meeting time, but at the request of an absolute majority of the whole number of Senators.

If, however, the House has been prorogued by the Governor-General, then it is the Governor-General, under section 5 of the Constitution, who sets the time for holding the next session of Parliament. In doing so, the Governor-General ordinarily acts on ministerial advice.

But what if MPs and Senators are sick?

What will happen if more of our leaders, our MPs, Senators and Ministers start becoming infected with COVID-19? Some members of our Parliament have already been infected.

To pass ordinary votes, Parliament only needs a quorum in attendance. The quorum is set by sections 22 and 39 of the Constitution as follows:

Section 22 Quorum
Until the Parliament otherwise provides, the presence of at least one‑third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers. 

Section 39 Quorum
Until the Parliament otherwise provides, the presence of at least one‑third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers. 

You’ll notice in both sections start with ‘until the Parliament otherwise provides’. This means that the Parliament can make a law about these matters. The Parliament has enacted the House of Representatives (Quorum) Act 1989 and the Senate (Quorum) Act 1991 which have altered the quorum required in both Houses of Parliament to one fifth and one quarter respectively.

So, the minimum number of MPs from the House of Representatives is 31 (out of 151) and the minimum number of Senators required is 19 (out of 76) for the Parliament to be able to sit and pass laws. Some motions, however, such as a motion to suspend standing orders, require passage by an absolute majority of members. Today such a motion was required to change the order of business in the Houses. This is why more than just the quorum of members needed to attend.

Section 6 of the Constitution also stipulates that Parliament must sit at least once in every year.

Section 6 Yearly session of Parliament
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.

But as the budget will still need to be passed, the Parliament could not wait a year before sitting again.

Emergency powers

People are starting to wonder whether our Constitution contains anything about emergency powers.

Constitutions written after WWII generally address the protection of fundamental liberties and the perseveration of national safety. The writers of these constitutions understood that during emergencies there may be a need to curtail the rights and freedoms of the people, but that such powers should be limited and defined.

The Australian Constitution, written in an earlier age, does not address emergency powers. But the Constitution does give the Commonwealth Parliament power to make laws with respect to certain subjects to deal with emergencies.  For example, there is a defence power that can expand very broadly during a time of war. There is also a power to make laws with respect to quarantine to deal with a pandemic. The Commonwealth can also rely on other powers, such as the external affairs power with respect to the implementation of treaty obligations, and the ‘nationhood’ power which can be used for the self-protection of the nation. The States also have extensive legislative powers under public health legislation.

At present, Commonwealth and State leaders are meeting weekly as a ‘national Cabinet’ to try to obtain a coordinated response, so that State and Commonwealth laws and actions do not conflict. In a time of emergency, cooperative federalism can ensure that the people are well protected.


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