« The Likely Political Consequences of Proposed Changes to the Senate’s Electoral System | Main
June 25, 2015
An Early Election? Could there be a Double Dissolution?
There is some wild speculation around about an early Commonwealth election, but there are several problems for the government in calling an early election.
First is the Senate. Under Section 13 of the Constitution, it is impossible to issue a writ for a half-Senate election until 1 July 2016. That means the first possible date to hold a normal House and half-Senate election is 6 August 2016, more than a year away.
The government could call a separate House election at any time by simply asking the Governor-General. A House election would also include elections for the four Territory Senators.
The Prime Minister would have to give a reason for an early House election, but given that Prime Minister Abbott continues to have the confidence of the House, the Governor-General would be highly unlikely to reject such a request.
The government would be left with one problem in calling a separate House election. A separate half-Senate election would then need to be held sometime in the next 20 months. This would mean either another House election in conjunction with the half-Senate, or the government running the risk of voters treating a separate half-Senate election as a giant by-election.
Alternatively the government could try to call a double dissolution, which is possible, but has a few problems of its own.
The government has one trigger available for calling a double dissolution, the Clean Energy Finance Corporation (Abolition) Bill. This meets the simple requirement of Section 57 of the Constitution in having been defeated twice in the Senate with the necessary three month gap.
However, both defeats occurred with the old Senate, before Senators elected at the 2013 election took their seats on 1 July 2014.
The Constitutional lawyers will tell you this meets the requirements of Section 57 and would allow a double-dissolution to be called.
However, it is for the Governor-General to decide whether to accept the advice, and previous Governors-General have gone beyond the simple technicality of whether a Section 57 trigger exists.
The first double dissolution was called in 1913, and the British Governor-General Sir Ronald Munro-Ferguson was permitted to obtain advice from Chief Justice Sir Samuel Griffith on how Section 57 should be interpreted.
According to Griffith, the power of dissolution should not be exercised simply because the conditions specified in section 57 exist:
It should, on the contrary, be regarded as an extraordinary power, to be exercised only in cases in which the Governor-General is personally satisfied, after independent consideration of the case, either that the proposed law as to which the Houses have differed in opinion is one of such public importance that it should be referred to the electors of the Commonwealth for immediate decision by means of a complete renewal of both Houses, or that there exists such a state of practical deadlock in legislation as can only be ended in that way.
Governors-General since have applied this advice, most obviously in the case of Sir Ninian Stephen in 1983, when he requested further information from Malcolm Fraser before granting him a double dissolution.
Fraser listed 13 bills as meeting the requirements of Section 57. However, twelve months had passed since the defeat of these bills, and Fraser’s sudden political enthusiasm for a double dissolution on the morning of 3 February 1983 was clearly related to a meeting of the Labor Party executive that morning at which it was expected Bill Hayden would be urged to stand down for Bob Hawke.
Fraser had hoped to call a snap election and catch the Labor Party with Bill Hayden still as leader, or to see Labor spend the first week of the campaign in leadership turmoil.
Instead the Governor-General requested further information on the request. By the time that Fraser had his dissolution, Hayden’s decision to resign meant that Fraser had to fight the campaign against Bob Hawke.
In responding to Fraser’s request, the Governor-General wrote that he had satisfied himself that there existed measures meeting “the description of measures such as are referred to in section 57 of the Constitution”. He continued:
Such precedents as exist, together with the writings on section 57 of the Constitution, suggest that in circumstances such as the present, I should, in considering your advice, pay regard to the importance of the measures in question and to the workability of Parliament.I note that your letter states that the thirteen proposed laws are “of importance to the Government’s budgetary, education and welfare policies”. I also note that in the case of each of these measures a considerable time has passed since they were rejected or not passed for a second time in the Senate. I have considered their nature; the nine Sales Tax measures seek to impose tax on a range of goods now exempt; three of the other measures provide for the limited re-introduction of tuition fees in tertiary education institutions; the last measure, a social service measure, seeks to preclude spouses of those involved in industrial action from receiving unemployment and special benefits.
As to the importance of these measures, viewed in the context of the extraordinary nature of a double dissolution, I am not myself in any position, from their mere subject matter and context, to form a view about the particular importance of any of them.
It was in those circumstances that I spoke with you by telephone early this afternoon about the workability of Parliament, seeking further advice from you on that score; this was a matter to which you had already referred, in a prospective sense, in your original letter.
As a result of your second letter to me, in which you speak of difficulties of the immediate past and described a double dissolution as critical to the workings of the Government and of the Parliament, I am now satisfied that in accordance with your advice I should dissolve the Senate and the House of Representatives simultaneously. I note your assurance as to the availability of funds to enable the work of the administration to be carried on through the election period.
Sir Ninian noted the ‘considerable time’ between the legislation becoming Section 57 triggers and their use to request a double dissolution. As the letter mentions, Stephen had pressed Fraser for further assurance on the need for a double dissolution, in line with Sir Samuel Griffith’s advice.
So if Prime Minister Abbott this weekend tried to use the Clean Energy Finance Corporation (Abolition) Bill as a double dissolution trigger, there is a slight problem that the Senate he is asking to be dissolved has never examined the legislation, let alone rejected it.
A Governor-General might ask for advice on why the government has not attempted to pass the legislation through the new Senate, as the government did with all the other legislation to repeal the carbon tax.
Whether a Governor-General would reject a pressed request for a double dissolution seems unlikely, but the past precedents point to the Governor-General being entitled to form their own independent decision. A decision on using the Section 57 double dissolution provision is not an issue of accepting the advice of a Prime Minister with the confidence of the House. The Governor-General also has a duty to uphold the Constitution.
The precedent of a double dissolution based on the Clean Energy Corporation (Abolition) Bill would look very odd when added to the chapters on double dissolutions to be found in both House of Representatives Practice and Odger’s Senate Practice.
(And can I add on a note unrelated to constitutionality, would anyone want to try and conduct an election for 12 Senators from each state given the current state of electoral law? The ballot papers and preference deals would be even more complex than in 2013!)
Question about the “independent” role of the Gov-General.
in recent years we’ve seen Royal commissions involving , Kevin Rudd, Julia Gillard and Bill Shorten, all of which, it could reasonably be argued, were politically inspired to embarrass the Labor party.
Does the GG have any due diligence to perform before granting a Royal Commission I.e. Can the GG reject a royal commission request if he/she thinks the grounds for the inquiry are dubious?
COMMENT: No. It is an issue for the Cabinet to decide and the Governor-General to approve through Executive Council.
Posted by: Paulz | June 25, 2015 at 07:58 PM
At times of extreme governmental dysfunction, could it be constitutionally appropriate for one or more Australian citizens / Commonwealth subjects to petition the Governor General directly, or indirectly, inviting him or her to unilaterally dismiss one or both houses?
COMMENT: No. Dissolution is done on advice from the Prime Minister and writs can only be issued on instruction. As I said to people asking the same question about getting the Governor-General sacking Julie Gillard, the answer is no.
Posted by: Tommy | June 25, 2015 at 10:06 PM
Antony
You may be the best one to comment about the implications of the Coalition going to an early election whilst the NSW & WA Redistributions are still in progress.
If I have understood what you’ve said about elections being called mid-redistribution then I believe that Farrer and Riverina (the 2 lowest-enrolled and adjoining Divisions in NSW) would merge and become one.
In WA, Canning and Pearce would become 3 Divisions. (Please correct any incorrect assumptions I have made).
Therefore the Coalition would automatically forfeit either Sussan Ley or Michael McCormack as a seat in the House of Representatives and even though both Canning and Pearce have margins of over 8% there’s no guarantees the Coalition would win all 3 seats from these 2 existing Divisions in the West.
This, I believe, will be one of the key factors as to why there will be no double dissolution or any other kind of federal election held this year.
Besides, even though Shorten has had a week from hell, the ALP are still ahead in the polls.
A DD would only make the Senate even more of a rag-tag of minor and micro-party candidates if the recommendations from the JSCEM are not legislated far enough in advance.
There are just too many risks for the Coalition to be heading back to the polls so early.
I can’t see it happening.
Posted by: Jeff | June 25, 2015 at 10:13 PM
On the matter of an early election of just the House of Representatives. This has happened before hasn’t it?
Also even if the senate gets treated like a large by-election would not the current government, if elected again, get the new senate voting rules in place before calling the senate election? Even they did not get elected, could they not use the next half-senate election to boost their own numbers, should politics work against labor leading up to that election? In other words the senate by-election would work against labor and not liberal if it is labor that wins an early election.
The current government may view these tactics as a win win situation for them regardless?
COMMENT: The last time a government called a separate House election was Menzies in 1963 and he had only a 2 seat majority. It put the House and Senate out of line for the next decade, something both Holt and Gorton learnt to regret.
If the government was re-elected at a separate House election it would face the same Senate it has so far declined to test on Senate electoral system change.
Posted by: Matthew | June 25, 2015 at 10:19 PM
Thank you, It annoys me when this speculation swirls around and no one actually looks at the consitutional, legislative (let alone political) realities
Posted by: Geoffrey Ward | June 25, 2015 at 10:38 PM
The Governor General has an obligation if not a requirement to act on the advice of the Prime minister. A trigger exists and should be used to call a double dissolution.
The government should introduce changes to the electoral act t remove anomalies in the way the Senate vote is counted.
The system in place was designed to facilitate a manual counting process and in doing so has distorted the proportionality of the count.
We need to introduce a weighted transfer system with a reiterative redistribution of preferences where the ballot is reset and restarted on each exclusion.
The guiding principle being that ballot preferences allocated to excluded candidates should be redistributed as if the excluded candidates had not stood.
With a reiterative weighted counting system the government could introduce a representative threshold of 25% TO 33% of the quota.
Above-the-line votes should be equally distributed across all candidates within the group.
The order of exclusion within a group being the reverse order of the candidates in that group published on the ballot paper ballot paper. This would prevent misuse and gaming of the vote by third parties and give each party equal weighted representation. One vote one value
A further issue of consideration should be the abolition of the “Droop Quota (X/(Y+1)+1” and replace it withe a pure proportional (x/y) calculation of the quota.
Following these changes the government should proceed with calling a double dissolution election by the end of the year.
Posted by: democracyATwork | June 25, 2015 at 11:43 PM
Is there a provision in our electoral laws (state or federal) for constituents to petition for the removal of a MP from his/her seat on the basis of dishonesty ot other reasons?
ANSWER: No.
Posted by: John van Barneveld | June 26, 2015 at 08:32 AM
As an extension of the question by John van Barneveld, I’ve always wondered what would happen if an absolute majority of electors in an electorate petitioned their Member to vote in a specific way on some issue (which was entirely contrary to the stated intentions of the party which they represent).
Assuming that person was indeed elected to represent their electorate (fat chance, I know!), it would only be reasonable to assume that they would be obliged to vote in accordance with the petition.
COMMENT: There is no obligation for elected members to act in any particular way once elected. They might be influenced to vote if they hope to win re-election, but MPs are in no way bound by their constituents’ views.
Posted by: David Heath | June 26, 2015 at 01:30 PM
Given that so many of us are effectively disenfranchised by virtue of the fact that we just happen to reside in a demographically politically aligned area, is it not time for electoral reform to amend the voting system to single electorate Proportional Representation, with each State being considered as a single electorate (as defined in the Constitution – original version)?
Is it possible that such an amendment to the voting system for the Federal House of Representatives could be affected?
Are there any steps the general voting population can take to hasten such a change away from the outdated, skewed in favour of major parties, ineffective, old Victorian-British, multi-electorate system such has already occurred in so many legislative assembly and parliamentary elections throughout Australia?
COMMENT: First, you aren’t disenfranchised by living in a safe area as you still have an impact on the Senate. Second, without digging up my old law books to check, I’m sure the draft constitution had nothing about the House being elected as a whole though it did specify this for the Senate. The constitution always left it for the states to determine initial laws with the new Commonwealth Parliament to determine the eventual national law. The 1901 election was conducted under different laws in different states, with SA and Tasmania being the only two states elected at large.
Posted by: Theo Spinner | June 26, 2015 at 01:48 PM
Hello Antony, thank you for the opportunity to discuss this very important matter. While you refer to the political / constitutional ‘state of play’ as complicating the likelihood of a DD, you make note of the fact that the Governor General would be ‘highly unlikely to deny such a request’. So, given that no legal grounds of denial exist, what is your gut feeling? Do you think the Prime Minister will throw caution to the wind, for the sake of consolidating his position today (and damn the consequences?). I ask because the behaviour of the Prime Minister leads me to believe that he will disregard the advice of his own party and go for it. What do you think?
COMMENT: You have quoted me completely out of context. I said the Governor-General would be ‘highly unlikely to reject’ a request for a separate House election. The article makes the point that unlike a House election request, the Governor-General has much more power to say no to a double dissolution for the reasons set out in the quotes from Sir Samuel Griffith and Sir Ninian Stephen in the article. A Prime Minister who ignored his party’s view is one that may find a Governor General questioning the offered advice. Governors-General don’t have to act on advice from Prime Ministers who may lack the confidence of the house, which usually means their own party.
Posted by: Ron Harrison | June 26, 2015 at 03:18 PM
Antony, what is the last date a standard House and half-Senate election could be called?
COMMENT: The parliament expires on 11 November 2016 and from that date the maximum allowable election campaign drags the last election date out to 14 January 2017. It won’t happen that late.
Posted by: Robert Crew | June 26, 2015 at 11:15 PM
It looks as though a double dissolution is really a sort of emergency provision within the constitution to ensure that the process of governance is able to continue, and is not strangled by inter and intra-party factionalism.
Given that both Labor and the Coalition have been beset by factionalism in recent times, is it not likely that a double dissolution would play into the hands of the more extremist factions in and around each camp?
Presumably there is no point in a double dissolution, from the electorate’s point of view, unless it is highly likely that the outcome will be more functional, less volatile, representative democratic governance, of the type that the people of Hong Kong aspire towards.
COMMENT: The double dissolution power of the constitution is an extra-ordinary power. It was designed to deal with a conflict at the very heart of the Constitution, that between a government responsible to a House of Representatives expressing the popular national will, and a powerful Senate with equality of state representation. The one thing a double dissolution is not is an easy excuse for an early election. The double dissolution power was designed to resolve significant deadlocks.
Posted by: Tommy | June 26, 2015 at 11:58 PM
Antony
You mention above that an elected member has no obligation to act in any specific way once elected.
Surely there is some obligation to represent the philosophies of the party under whose “auspices” they were elected.
I am continually frustrated by the increasing number of times that members are elected as representing Party A and then deciding that they will sit as an Independent. This happens in Federal,State and Territory Parliaments and by all political parties.
Would it not be better that if they have a change of heart they should be replaced by a member of the same party(As occurs in the Senate) and then face the electors as an Independent at the next election)?
COMMENT: There are ‘moral’ obligations, but there are no obligations that can be enforced in any way apart from defeating a member at the next election.
Posted by: Patrick Blackall | June 27, 2015 at 07:13 AM
Antony,
Do you think that online voting would alieviate the cost and turmoil of out of synch houses of parliament?
COMMENT: There will not be any online voting for Federal elections for several years yet.
Posted by: Paul Hirayama | June 27, 2015 at 07:54 AM
Will anyone please tell me;
-How did we end up with not having a fixed term of office for the elected government?
-Why does the power of setting the date of a Federal election rest with the Government of the day?
-There are obvious political advantages to the Government in having the power to set the date of an election. What are the benefits to the electorate, the ordinary voter?
Or, can anyone point me somewhere that I can research this?
COMMENT: The British Parliament right back to the middle ages always had flexible election dates. The Australian colonial parliaments inherited this tradition in 1856, as did the Commonwealth in 1901.
The first Australian state to fix election dates permanently was NSW ahead of the 1995 election, since repeated in South Australia, Western Australia, Victoria and the Northern Territory.
The recent UK election was the first in history to have a fixed date, as will future UK elections unless the fixed term parliament legislation is repealed. Canada currently has fixed term parliament legislation but with numerous get out clauses. New Zealand has an election date determined by the Prime Minister, as is the general rule around the world.
Rigid fixed dates for elections are the exception rather than the rule around the world. Fixed date elections are much more a feature of presidential rather than parliamentary systems of government.
Posted by: Seth Sulaiman | June 27, 2015 at 12:05 PM
Antony, sorry for an off-topic question, but you don’t seem to have a “general questions” section.
Harold Blair stood for Mentone at the 1964 Victorian election. My current belief is that he was the first Indigenous parliamentary candidate. Do you (or does anyone else) know of an earlier one?
COMMENT: I have no idea.
Posted by: Adam Carr | June 27, 2015 at 02:41 PM
Thank you Antony. This, and the previous 3 or 4 posts, are incredibly informative. Apart from the question of whether there are grounds for a DD (and note that we have drifted towards a rather more “presidential” role for the Prime Minister and a more passive role for the G-G than in Sir Ronald Munro-Ferguson’s time), there is also the question of whether it would do the PM and his party(ies) any good.
At an election for the whole Senate the quota (in the States) is 7.7%. On likely voting figures this would guarantee the ALP 4 seats in each State, and possibly a fifth in some, the coalition 5 seats in each State with a remote possibility of a sixth in one or two, the Greens one in each State with some, but not much, chance of a second here or there, and a whole lot of minor parties getting one or two per State depending on the ballot-paper draw and the flukes of who is eliminated before who.
Add in one from each Territory for each of the ALP and the coalition and we could end up with totals not too different from the current coalition 33, ALP 25, Greens 10 and others 8 – though they could be very different “others” from the current lot. I wonder if the PM would think it was worth the bother.
Of course if he wants to risk dissolving the Reps, a DD would at least make it easier to keep the elections of the Houses synchronised in future – and (unless the LDP flukes a good column in NSW again) we could find out whether a lot of people really voted for them thinking they were the Liberals, or whether there really are a lot of libertarians in NSW. But still I wonder, would even an impulsive chap like our PM think those small benefits were worth the risk and the public expense?
COMMENT: The point I come back to with the double dissolution power is that it is constitutionally designed to break deadlocks by delivering a new Senate as a resolution to the deadlock. The current trigger has never been presented to the new Senate that took its place in 1 July 2014, so why does the government need a new Senate to resolve a deadlock with the current Senate that doesn’t actually exist? It is certain that an attempt to use the current trigger would lead to an attempt by current Senators to injunct the dissolution and issue of writs in the High Court. The Court might not agree to issue an injunction, but it might hear the matter, which would potentially embarrass the Governor-General.
Posted by: John Pyke | June 27, 2015 at 02:43 PM
Antony,
In your answer to Robert Crew (11.15pm on 26 June) you say that the current Parliament expires on 11 November 2015 and the latest election date is 14 January 2016. Don’t you mean 11 November 2016 and 14 January 2017?
COMMENT: Yes. There comes a point in life where you begin to forget what year you are living in.
Posted by: John Taylor | June 27, 2015 at 04:30 PM
Antony
I understand the state Premiers/governments issue the writs for Senate elections. Can a state Premier block or delay the process of a double dissolution by refusing to issue writs at the time the Prime Minister wants them?
COMMENT: A double dissolution would dissolve the Senate first . Then the election would be set for a specific date and communicated to the states for the issue of Senate writs. If one of the states then bickered over the date for an election that is being paid for by the Commonwealth, they would end up looking pretty silly. The election would have to occur.
Posted by: Scott Brodie | June 28, 2015 at 12:38 AM
Antony why would we listen to you. Your expertise as a political commentator has been torn to shreds after your disastrous predictions regarding the UK election. You touted yourself over there and came back humiliated. Only the Abc would give you a platform which speaks volumes for accuracy. None.
COMMENT: The complete failure of the entire UK polling industry and it is my opinion ‘torn to shreds’? If you choose on that basis to ignore the detailed explanation of current election possibilities for Australia that are set out in this post, it is entirely your right to do so. But I think you will be less well informed for doing so.
Posted by: bron | June 28, 2015 at 06:23 AM