March 24, 2013
The First Date for a Half-Senate Election is 3 August
Leader of Opposition Business Christopher Pyne was this morning referring to a half-Senate election in July, though it was unclear whether he was referring to a campaign or an election date.
However, let me add some clarity. There can be an election campaign in July, but it is clear from the Electoral Act and past High Court interpretations of the Constitution that the first possible polling date for a half-Senate election is Saturday 3 August.
This all stems from the second paragraph of Section 13 of the Constitution. It reads
The election to fill vacant places shall be made within one year before the places are to become vacant.
Paragraph three in Section 13, defining when the terms of Senators begin, makes reference to “day of his election”, but paragraph two above refers only to “election”.
The High Court stated in its judgment on Vardon v O’Loghlin  that “The term ‘election’ in that section does not mean the day of nomination or the polling day alone, but comprises the whole proceedings from the issue of the writ to the valid return.”
On that interpretation by the High Court, the writ for a half-Senate election cannot be issued before 1 July, and the Commonwealth Electoral Act then makes Saturday 3 August the first possible polling date for a half-Senate election.
Writs for a House election can be issued up to 58 days ahead of polling day, which means about 7 June ahead of a possible 3 August election, but the half-Senate election writs would have to wait for 1 July.
The Opposition is proposing to table a no-confidence motion when the House of Representatives resumes in May. This will be the first no-confidence motion moved by the Opposition in this term, previous attempts actually being attempts to suspend standing orders to allow an immediate censure or no-confidence motion. It would be hard for the government not to take on this motion for debate. Accepting the motion for debate would invoke standing orders allowing members more time to speak.
If this motion passed, it would create a conundrum. The Prime Minister would have to visit the Governor-General and offer advice. That advice could be for an early election, but having lost confidence, the Governor-General would not have to accept the advice.
So what could happen? The Prime Minister could resign in favour of another Labor Leader who would then have to prove they have the confidence of the House.
Alternatively, the Independents could choose to switch sides and back an Abbott government for the balance of the current term. Presumably that would be until the first chance of a half-Senate election on 3 August.
I think the most likely outcome of losing a confidence vote is an early House election, along with the four Territory Senators. A separate half-Senate election would then have to be held between 3 August 2013 and late May 2014.
As I wrote last year, the half-Senate date problem means that it may no longer be in the interests of the Coalition to have an early election.
However, to maintain the pressure on the government, the Opposition must continue to call for an early election, to continue with its position that the nation is best served by bringing an end to the current parliament and government as soon as possible.
But the defeat of the government in May and an early election would bring on a change of government at a new House election but leave the current Senate in place, apart from the four Territory Senators. The new government would then have to face at the very least a half-Senate election by the end of May 2014.
However, there would be one advantage for the Coalition in an early election. It would reset the clock on double dissolutions. The new government would find itself with almost a year to engineer a doube dissolution trigger. And with no half-Senate election being held, there would no Senators in waiting to complicate when a double dissolution trigger could be used.
Posted by Antony Green on March 24, 2013 at 10:55 AM in Election Date Speculation, Federal Politics and Governments | Permalink