Alternatives to an Election on 14 September (Antony Green)

11 June, 2013 Uncategorized0

June 10, 2013

Alternatives to an Election on 14 September

With renewed speculation that Kevin Rudd could return as Labor Leader, there has also been speculation that Julia Gillard’s chosen election date of 14 September could be dumped in favour of an earlier poll.

The timetable for an earlier election is limited by the constitution, which makes August 3 the first possible date for a House and half-Senate election.

If Kevin Rudd did become Prime Minister, the election date would come down to whether he wanted a quick rush to the polls on 3 August, or wished to spend time re-establishing his authority and sticking to the current election timetables for 14 September.

A full list of available election dates between 20 July and 30 November is shown below. (See inside article.)

The first thing to say about the current election date for 14 September is that it is only an intention by the current Prime Minister to hold an election on that date. The actual date is not set until the issue of the writ by the Governor-General on the advice of the Prime Minister.

Section 13 of the Constitution prevents writs for a half-Senate election being issued before 1 July 2013. With the minimum 33 day election campaign, this means the first possible date for a House and half-Senate election is Saturday 3 August 2013. The election can be announced before 1 July but the writ initiating the processes for the election cannot be issued before 1 July.

At this stage there is still time for an election to be held on 20 July or 27 July. An election on either date would be for the House of Representatives and the four Territory Senators only. A July election would require a separate half-Senate election in the first half of 2014.

The major problem for an election on 20 or 27 July is the passage of the Appropriation Bills. These have passed the House but must pass the Senate before an election can be held. This timetable probably rules out an election on 20 July, leaves 27 July possible, but this late in the term, holding off until at least 3 August looks the most likely scenario.

There has been comment in interviews this morning as to whether the Independents would support a change of Labor leadership. This does not really matter, as with the next two parliamentary sitting weeks certain to be the last before the election, a desertion by the cross bench members now is probably irrelevant. An active desertion, such as supporting an opposition no-confidence motion, would do no more than ensure the election is held at the earliest possible date on 3 August.

If there is a change in Labor Leadership, and it chooses to stick to the 14 September election timetable, there is nothing to stop it doing so. Once the appropriate bills are passed this fortnight and the Parliament rises for the winter break, then the position of the Independents is not relevant with the Parliament having risen and highly unlikely to meet again before the election.

The last Federal election was held on 21 August 2010, but the term of the House of Representatives is set by the date of the first sitting of the new House, not the date of the last election. The Constitution does not require the election to be held in August 2013.

Section 28 of the Constitution states that Parliaments run three years from the date of the first sitting of the House of Representatives. The current House sat for the first time on 28 September 2010, so the House expires on 27 September 2013.

Section 32 of the Constitution requires that writs for an election must be issued within 10 days of the House being dissolved or expiring. So if the House goes full term, writs must be issued within 10 days of the House’s expiry, which means 7 October is the last possible date for issuing writs in the life of the current parliament. With the maximum campaign period allowed by the Commonwealth Electoral Act, this means the last possible date for a House and half-Senate election is Saturday 30 November 2013.

A half-Senate election is not required until May 2014, but it is normal to hold a half-Senate election in conjunction with the House election in the last twelve months of the Senate term. It would be highly unusual for there to be a House election on any of the dates from August without there also being a half-Senate election.

The minimum campaign period for an Australian election is 33 days, meaning the writs are normally issued on the Monday after the weekend five weeks before polling day. The ‘Writ Issued’ column in the table below is based on this 33 day period.

The election is usually announced a few days before the date listed below for the issue of the writ. Since 1990 it has been normal for the election to be announced on the weekend five weeks before polling day, with the writs issued on the following Monday. The exceptions to this rule were the 2004 and 2007 elections, which for reasons to do with parliamentary sitting schedule, were announced 6 weeks ahead of polling day with the writs issued half way through the following week.

The last three polling dates listed in the table require extended election campaigns with the writ issued on or before the last constitutionally allowed date of 7 October.

The table notes relevant holidays and sporting events that could clash with polling day.

Possible 2013 House and Half-Senate Election Dates
Writ Issued Polling Day Notes on Date
17 June 20 July Would be a House and four Territory Senators election only. Would require a separate half-Senate election in 2014. This date is highly unlikely as it would require the Appropriation Bills to be rushed through parliament on 17 June with the House dissolved and writs issued the same day. An election cannot be held until the Appropriation Bills are passed. Further complicating the timetable, at this stage it does not appear that any Labor leadership change would have taken place by this date.
24 June 27 July Would be a House and four Territory Senators election only. Requires the Appropriation Bills to be passed through the Parliament in the parliamentary sitting 17-20 June, with the second sitting week abandoned by the writ issue.
1 July 3 August First possible date for the normal House and half-Senate election. Allows the last two parliamentary sitting weeks to go ahead.
8 July 10 August
15 July 17 August
22 July 24 August Three years after 2010 election.
29 July 31 August
5 August 7 September
12 August 14 September
19 August 21 September School holidays, NSW, VIC, QLD. Note that the current Parliament is due to resume on 20 August, so an election after this date would require the Parliament to sit again,
26 August 28 September Queens Birthday long weekend in WA
Family and Community Day long weekend in ACT
School holidays all states and territories
AFL Grand Final day
2 September 5 October Labor Day long weekend in NSW, QLD, SA
School holidays all states and territories
Rugby League Grand Final Sunday 6 October
9 September 12 October School holidays WA, SA, TAS, ACT
16 September 19 October
23 September 26 October Last date to issue writ before House of Representatives expires.
30 September 2 November Writ issued after House of Representatives expires.
7 October 9 November Writ issued after House of Representatives expires.
7 October 16 November Extended campaign, writ issued on last allowed date.
7 October 23 November Extended campaign, writ issued on last allowed date.
7 October 30 November Extended campaign, writ issued on last allowed date.



Hi Antony, wondering if you would do an analysis for us here in the public of what happened to the Labor vote in NSW when they switched leaders to Kineally and where they ended up, compared to what happened in the Queensland election where Labor opted to stay with Bligh. It’d be interesting from an analytical point of view to see what happens to the vote when you switch leaders, compared to when you stick with one that’s unpopular because of a perceived lie.

Bligh made an error in the public service assets sale that she never recovered from which is very similar to what’s happened with Gillard’s carbon tax “promise”. I’m from Queensland so I’m not sure what the backdrop was in NSW where they continually switched leaders, but I’d sure be interested to look at these two scenarios that occurred from an analytical/mathematical point of view in what happens to the polling numbers.

COMMENT: Leadership was irrelevant in NSW. The Labor vote barely moved after both leadership changes, and the approval ratings of both Rees and Keneally declined continuously from their initial high figures.

Bligh’s rating bounced around in her last term and she was relatively popular given the size of the swing against the government.

Posted by: Spin Baby, Spin | June 10, 2013 at 02:35 PM

Antony if Rudd was to be reinstated by the ALP and Windsor (et al?) withdrew their formal support for the ALP wouldn’t that suggest to the GG that Rudd may not have the confidence of the House? If Rudd couldn’t demonstrate that confidence, ether by a vote on the floor or statements from enough of the INDs to give him a majority, wouldn’t he have to recommend to the GG an immediate HoR election (assuming all this happens pre 3/8) or force the GG to call one?

Probably moot as a returned PM Rudd would likely go to a snap Poll anyway to minimise the impact of the Coalition campaign. However, if he decided to go long without Windsor’s support i would’ve that might be tricky.

COMMENT: If Rudd returns as PM and the government is promptly defeated on the floor of the House, an immediate election means 27 July or 3 August, with the latter preferred because it allows a half-Senate election.

Once Parliament rises, the role of the Independents no longer matters. The House will be dissolved for an election before it is due to resume at the end of August.

Governor-Generals do not call elections, they accept advice to call them. A Prime Minister that continues to try and govern having lost a crucial vote in the House risks being dismissed, with a new Prime Minister being appointed to offer advice calling an election.

Posted by: wonk_arama | June 10, 2013 at 03:09 PM

Excellent analysis Antony, very useful. You mention that even if key independents desert the Gillard government immediately the election will still occur on 3 August. From what I understand above, for there to be a joint Half Senate and House of Reps election, parliament can not be dissolved before the 21st June. If it becomes apparent in the next few days that neither the ALP nor the Coalition has the confidence of the house, is the Governor General not obliged to dissolve the House of Reps immediately, forcing a July election? Or is it simply that there is enough time for the GG to delay dissolution by negotiating with the the various parties and independents until the 21st June deadline passes? Does the GG have the power to act unilaterally when a PM loses the confidence of the house and no only else holds it?

COMMENT: I have no idea what this 21 June deadline you refer to is. The Governor General does not dissolve the House except on advice from the Prime Minister. It is a requirement that the Appropriation bills be passed through the Senate before an election is called. There is no need to dissolve the House until 1 July when the half-Senate writs can be issued.

Except under the most extra-ordinary of circumstances, Governor-Generals do not negotiate with the parties to resolve deadlocks in the House of Representatives. It is the obligation of the House to sort out its problems.

The House cannot be dissolved until the Appropriation bills are passed, as without the Appropriation bills, government will not be permitted to spend one cent of expenditure after 30 June. That means pensions, defence, elections, everything.

This late in the term, the House doesn’t have to express confidence in anyone. If Gillard or Rudd lose a vote of no-confidence, they recommend an election. This late in the term of a Parliament, a loss of confidence leads to an election, not a change of government. The Opposition would offer the same advice as the government, call an election, so the Governor-General has no need to change her source of advice, so there is no requirement for the House to resolve confidence. It would be for the public to sort out the House deadlock via an election.

Posted by: Noel K | June 10, 2013 at 04:39 PM

Let me clarify. You wrote that writs must be issued within 10 days of the dissolution of the House. The 21st of June is 10 days before the 1st of July, the first date that writs can be issued for an election simultaneous with a half senate election. Therefore if the house is dissolved before 21st June, surely that means simultaneous elections are not possible due to the section 32 restrictions? Am I missing something?

COMMENT: Yes. The government can dissolve then House and issue writs for 3 August at once, and then issue the half-Senate writs on 1 July. The minimum campaign period is five weeks, hence the 3 August date, but the maximum is about nine so you could issue House writs now.

However, the House won’t be dissolved until all necessary legislation, including the budget, has passed the Parliament. The government would also be within its rights to request the House be prorogued pending the dissolution, but again you don’t do that until all required legislation has been dealt with. The Independents and opposition would be cranky at a prorogation, demanding the government move suspension in the House, but the government might find that criticism easier to deflect than cranky cross-benchers supporting opposition procedural motions in the House.

Posted by: Noel K | June 10, 2013 at 08:07 PM

I was curious whether there might be an emergency way to obtain supply in Australia. In 1896 an incoming federal government (in Canada) did not have enough supply for the whole fiscal year as the final appropriation acts had not been approved. The new government under Laurier decided to use an emergency provision in what is now called the Financial Administration Act that allowed for Special Warrants to be issued by the Governor General to appropriate funds. My understanding is that the provision was supposed to have been used for a one-off emergency like a critical railway bridge collapsing but it was surprisingly used for all supply needed for the government and has been used off and on since then for all government supply usually during or subsequent to an election.

COMMENT: I don’t think so, but previous elections have been deferred until the Parliament passes an interim supply bill. The appropriation bill has already been through the House, is due to go through the Senate in the next fortnight, so there is no need to create exotic financial instruments when normal funding is already in the parliament and ready to be passed before 30 June.

Posted by: David Gussow | June 10, 2013 at 11:19 PM

Hi Antony,

Isn’t it possible for the election to be held on 28 September without the house sitting on 20 August? (I’m thinking about how long Rudd could push the election out without facing the independents)

This is because the house could be dissolved more than six days (and up to ten) before the writs are issued on 19 August.

The election could also be later than 21 September and not require the house sitting after 20 August if the writs were issued earlier and the election campaign extended.

COMMENT: I can’t see why the government would put itself in caretaker mode any longer than it has to. There is also little suggestion that if Rudd becomes leader he would attempt too go longer than he has to before calling the election.

Posted by: Casey | June 11, 2013 at 01:06 AM

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