Would A Double Dissolution In Early 2014 Be Unconstitutional?

Tony Abbott has made it clear that the first legislative act of his government after September 14 will be to introduce legislation to repeal the carbon tax.  The mining tax is also up for repeal.

The obstacle in Abbott’s path is the composition of the Senate.  Until July 1 next year, the balance of power in the Senate remains with the Australian Greens.  Without the support of their 9 senators, neither the ALP (31 senators) nor the coalition (34 senators) can command the 39 votes needed to win a vote.

Abbott and his shadow ministers have made it clear that they are prepared to call a double dissolution election if the Senate rejects their legislation.  This can take place if the requirements of Section 57 of the Constitution are met.

Put simply, Section 57 says both houses of the parliament can be dissolved if a bill has been twice rejected by the Senate with an interval of three months between each rejection.  In other words, House passes bill, Senate rejects Bill, 3 months elapse, House passes bill again, Senate rejects Bill again.

There have been 6 double dissolutions since Federation, the last in 1987 under the Hawke government.

In theory, it is possible that the requirements of Section 57 could be met before July 1, 2014.  Assuming the new government calls Parliament together by the end of October, it could have the legislation in the Senate by November.  It could quite easily be rejected before Christmas.  The legislation could then be reintroduced in late March and be rejected a second time by the Senate before July 1.

There are practical reasons why this probably won’t take place but let’s leave that for a moment.  A double rejection of a bill to repeal the carbon tax is quite feasible in the first half of next year.

What has been niggling at me recently is the view that a double dissolution cannot take place before July 1 next year.  The proponents of this argument say that until the new senators who will be chosen on September 14 are sworn in on July 1, a dissolution of the parliament cannot take place because it would terminate the terms of office of senators before they even take their seats.

It is further argued that the first rejection of a double dissolution bill must also await the swearing-in of new senators.

As far as I can tell, the argument was first put by the ABC’s Antony Green in a June 30, 2011 article, What Chance a Double Dissolution In The Next Three Years?

In that article, Green said:

“While it is not explicit in the Constitution, I believe it is implicit in the fixed terms of the Senate that a double dissolution trigger can only apply to legislation first blocked by a Senate in place after 1 July 2014. The Constitution states the Senators take their place on the 1 July after their election. Any double dissolution triggers attempted before new Senators take their seats would not allow the new Senators to vote on the legislation.

“An attempt to create a double dissolution trigger before the new Senators took their seats would attempt to terminate the terms of 108 Senators rather than the 72 implied by the Constitution.”

Green elaborated on his theory in an interview with Lyndal Curtis on News24’s Capital Hill program yesterday.

  • Listen to the relevant part of the interview (4m)

Green argued that a legal challenge to a double dissolution caused by the “old Senate” would hinge on the interpretation of Section 13 of the Constitution, which he claimed says that senators “will” or “shall” take their seats on July 1 after their election.

Section 13 does stipulate that senators take their seats on July 1.  Most importantly, it also stipulates that “the election to fill vacant places shall be made within one year before the places are to become vacant”. But this is a long way from implying that a double dissolution trigger must await the arrival of new senators. I would argue the length of senators’ terms and the fact that Section 13 prescribes fixed dates implies something quite different.

Since the 72 senators from the states serve 6-year terms on a rotating basis, whereby 36 of them are chosen every 3 years, the Constitution refers to two “classes” of senators.  At present, the first class was elected in 2007 and the second class was elected in 2010.  It is the 2007 intake whose positions are up for grabs on September 14.

There are, of course, 76 senators in total.  The remaining 4 are elected in the Northern Territory and the Australian Capital Territory.  They serve a term that is concurrent with the House of Representatives, a maximum of three years.

In outlining the procedure by which the two classes of senators shall take their seats, Section 13 of the Constitution specifically says “the places of senators shall be vacant at the expiration of six years from the beginning of their term of service”.

To me, this does not imply an inability of the Senate to create a double dissolution trigger in the months leading up to the newly-chosen senators taking their seats.  Rather, it implies that the senators are entitled to serve out their terms and exercise their constitutional powers during that time. Afterall, what is the point of a fixed term if the final months bring a diminution of power?

It follows that the government of the day is able to exercise its right to invoke Section 57 of the Constitution if its legislation is obstructed in the Senate.

Far from implying that a double dissolution election would terminate the terms of 108 senators (ie the existing 72 senators from the states plus the 36 chosen at the election), Section 13 makes it clear that there is no role for the senators chosen at the election until they take their seats on July 1.

Constitutionally, the Senators elected in September this year are irrelevant until July 1.  Constitutionally, they do not exist until July 1.  Just because they are waiting in the wings to be sworn in on July 1 is no impediment to the existing Senate acting as it sees fit.  It follows that if the Senate can continue to act according to the Constitution, so should the government be able to activate Section 57.

What do fixed Senate terms imply? My argument is that the fixed terms of the Senate, combined with its rotating membership actually implies that the Senate is an ongoing body.  At any moment it is what it is.  As someone said to me recently, it is “in situ”. It should not be seen as a chamber which cannot fulfill its constitutional role because it is waiting upon new members to take their places.  Equally, the executive’s right to invoke Section 57 cannot be limited on the grounds that the incoming senators haven’t voted on the legislation.

The current Senate is properly elected.  It contains one class of senators who will be replaced on July 1. It contains 4 territory senators who will be replaced on September 14.  Many of these “new” senators will be the same people who win re-election, but that is neither here nor there constitutionally.

The language we use is important here.  There is no such thing as an “old Senate” and a “new Senate”.  Rather, Section 13 implies that the Senate is an ongoing body, composed of a rotating membership of state senators with 6-year terms and territory senators serving concurrent terms with the House of Representatives.  In addition, some senators (eg. Bob Carr) have been appointed by state parliaments to fill casual vacancies, as allowed for under Section 15.

It is surely absurd to suggest that a double dissolution is unconstitutional in the period prior to the swearing-in of new senators.  To suggest this is to negate both the Senate’s and the executive’s power every three years following the election of new senators.

Thirty-two of the forty-three general elections since 1901 have been held in the second half of the year, including the last five elections in 1998, 2001, 2004, 2007 and 2010.  Only one of these elections – 2004 – delivered a Senate majority to the government of the day, so this is a very real and practical issue that goes to the heart of the process of governing.

A CLOSER LOOK AT THE SENATE

It may be argued that the Senate can still exercise its power to reject legislation in the period up until July 1 but cannot create a double dissolution trigger.  This strikes me as a strange constitutional contradiction, one which may be at odds with Section 53’s “equal power” clause. This explicitly states that the House and Senate have equal powers in respect of all legislation, with the exception of money bills and some restrictions on bills imposing taxation.

Moreover, striking out the government’s power to call a double dissolution serves to deny the executive government the means of resolving a dispute with the Senate.  For nearly a year, it denies the executive the right to invoke its power under Section 57 to dissolve the parliament and remit the legislation to the people for their decision.

In fact, if one accepts the argument that the double dissolution trigger can only be created after July 1, it effectively denies the executive the right to invoke Section 57 for up to 18 months.  The actual wording of Section 57 only denies this right to the government in the final six months of its term:  “But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.”

A theory that has the potential to restrict a double dissolution to a window of about a year during the government’s three-year term does not seem to be in accord with what is stated and implied by Section 57.  In fact, Section 57 is largely neutered by the 108 senators argument.

The Senate is an ongoing chamber with a rotating membership.  Aside from double dissolutions, it is never dissolved.  Following a double dissolution, its members have their terms backdated to July 1 prior to the election.  The Senate continues to exist, even when the House has been dissolved.

Furthermore, the Senate was conceived as a chamber with a membership that serves a term twice that of the House.  Standard political theory holds that this satisfied the desire of our constitution’s “founding fathers” for an upper house to represent the States and act as a house of review.  As in the US, the Senate was to be a bulwark against the excesses of the popularly elected lower house.  Longer terms for senators and equality of representation for the States clearly supports this view.

But the writers of our Constitution also saw a government’s authority as deriving from the House of Representatives – “the people’s House”. They wanted both a Westminster parliamentary system and an upper house with real power. Accordingly, they conceived of a means of resolving conflicts between the two chambers.

Section 57 thus allows a government in the lower house to take the upper house to an election, if the conditions outlined earlier are satisfied.   It places no restriction on the government calling a double dissolution election in the first year of its 3-year term.  Furthermore, the joint sitting option seems designed to allow the government’s greater House numbers to ultimately prevail over the Senate, particularly once the electorate has been consulted.  The Whitlam government’s 1974 joint sitting is a clear example of this idea at work.

Yet the theory of 108 senators effectively suspends Section 57 for up to a year following a half-Senate election in the second half of any year.  It seems to reject the notion that a properly-constituted Senate is already in place.  It denies the prime minister of the day the power to deal with Senate obstruction until after July 1.

All this strikes me as absurd and a travesty of the Constitution.  It dilutes the power of the Senate for up to a year whilst simultaneously hamstringing the government’s legislative program and denying it the constitutional trigger to resolve a dispute between the houses.

The logical corollary of my argument is that the first Senate rejection could take place prior to July 1 and the second rejection after July 1.  The Constitution does not distinguish between senators chosen at different elections.  It certainly doesn’t consider senators who haven’t even been sworn in yet.  Provided the 76 people sitting as senators at any given time have been properly elected, the Constitution is satisfied.

THE REDUNDANT SENATORS

It has been suggested that there is something wrong with a sequence of events which renders an election redundant.

It is an imperfect comparison but consider a by-election held for the House of Representatives.  It is possible that a candidate may be elected who never gets to sit in parliament because it has been dissolved for a general election.

This happened to former Liberal minister Peter Reith in 1982-83.  Despite winning the Flinders by-election on December 4, 1982, Reith never took up his seat in the House because it was dissolved on February 3 for an early election.  Reith lost his bid for re-election and did not enter the Parliament until 1984.

In simple terms, that’s just bad luck.  We should adopt the same attitude in the scenario I have been discussing here. It is the behaviour of sitting members that counts constitutionally, not the preferences of election candidates who are not yet entitled to take their seats.

SOME AMERICAN COMPARISONS

Since the Australian Senate was an idea adopted from the United States, in rejection of a hereditary or appointed chamber, US practice is of some relevance here.  Again, it is an imperfect comparison but instructive all the same.

The Australian political system is a hybrid Westminster model, grafted onto an American-style federal system with an elected Senate.  It is often referred to as a “Washminster” system.

Both the US House and Senate serve fixed terms.  Elections are set for the first Tuesday after the first Monday in November every two years.  New members usually take their seats on January 3 the following year.

At no point following an election does either chamber stop fulfilling its constitutional functions. Legislation is debated. Appointments are confirmed or rejected. At no point is the President denied his constitutional right to approve or veto legislation, to make appointments, or issue executive orders.  Even a defeated President has full executive power for over two months after being defeated.  Earlier this year, the House and Senate voted on the “fiscal cliff” legislation even though newly-elected members were about to take their seats and what could have been a one-term presidency was drawing to a close.

In December 1998, the so-called “lame duck” House, containing members who retired or were defeated in the November elections, voted to impeach President Bill Clinton.  No-one suggested that the impeachment debate be delayed until members chosen in November took their seats.  They were elected but not sworn in, so they were constitutionally irrelevant.

[An historical curio of this period is the current New York Senator Charles Schumer.  As a member of the House in 1998, he sat on the Judiciary Committee which recommended the Articles of Impeachment against Clinton.  At the November elections, he was elected to the Senate.  He went on to vote on the impeachment articles in the House before his term expired.  He then took his place in the Senate and deliberated in Clinton’s trial.  Schumer was the only member of Congress to have participated and voted – against – at every stage of the impeachment process in both houses.]

WHAT MIGHT HAPPEN IF ABBOTT MOVED FOR A DOUBLE DISSOLUTION BEFORE JULY 1?

Firstly, the decision would be in the hands of the Governor-General.  Any request for a double dissolution is tendered to the Governor-General by the Prime Minister.

On two occasions, there were question marks over the validity of a double dissolution.  In 1983, Sir Ninian Stephen kept Malcolm Fraser waiting for several hours whilst he satisfied himself that the bills in question had been properly passed and rejected.  Famously, by the time Fraser got his double dissolution election, the ALP had removed Bill Hayden and installed Bob Hawke as leader.  In the end, it was a bad day for Fraser who lost an election he didn’t have to call for another 10 months.

In 1951, Robert Menzies sought a double dissolution based on the Senate’s failure to pass the Commonwealth Banking Bill.  Governor-General Sir William McKell (a former Labor premier of NSW) granted the dissolution even though some argued the Senate was still considering the bill. They argued the Senate referred the bill to a Select Committee and had not yet ‘failed to pass’ it.  McKell accepted Menzies’s advice that they had.  Opposition Leader Chifley grumpily noted that “Billy McKell will please his bloody self”.

What might Governor-General Quentin Bryce do?  Would she declare that a Section 57 double dissolution was unconstitutional because new senators were due to be sworn in July?  Would she argue that Prime Minster Abbott had to wait for the “new Senate” before invoking Section 57?  Would Abbott advise the Queen to sack Bryce?

It really is a preposterous idea, as preposterous as suggesting that Bryce should not exercise her powers because her replacement as Governor-General will by then be known and pending an official swearing-in.

A HIGH COURT CHALLENGE?

Assume, though, that the Governor-General grants the double dissolution in the first half of next year.  Are we to seriously contemplate a High Court challenge to stop the election?

Maybe.  There is no other way of stopping it.

A challenge could be brought by one of the yet-to-be-sworn-in senators.  Presumably, a successful election candidate would have the appropriate standing to be heard by the High Court.

I have no way of knowing how the court would react to such a challenge.  Would it dare to stop an election being held?   Hopefully, the court would speedily dispose of the challenge as lacking substance.  But the very fact of the challenge would represent a serious and needless question mark against the stable operation of our political system.

THE PRACTICALITIES

It is most likely the scenarios I have considered above will never come to pass.

Firstly, a new government elected on September 14 might also win a Senate majority.  If frustrated by the current Senate, it could simply wait until July and then legislate accordingly.

Secondly, the ALP might capitulate and allow passage of the Abbott government’s legislation.

Thirdly, the legislative time frame might work against the government’s ability to call a double dissolution in the first half of 2014.

Following the September 14 election, the next Parliament is likely to meet in late October at the earliest. Bills to repeal the carbon or mining taxes could be passed through the House in a matter of days.  Passage through the Senate could take longer.  The Senate, controlled by the ALP and the Greens, might send the legislation to a committee.  They might hold public hearings.  Passage or rejection of the bill could be delayed for some time.  At what stage in November or December might the bill finally be voted on?

Section 57 then requires three months to elapse.  This takes us into March and possibly April.  The bill(s) have to be passed by the House again.  They have to go before the Senate again.  More delay is likely.  The range of mechanisms available to the Senate could enable it to delay things until May or June.

So the question of a double dissolution might not even arise before July 1.

Fourthly, Tony Abbott may not want a double dissolution election before July because then the House and Senate terms would be thrown out of kilter because Senators elected in, say, April-May 2014 would have their terms backdated to July 1, 2013.  See Section 13.

This would necessitate a half-Senate election sometime between July 2015 and June 2016.  To get the elections back into alignment, Abbott would have to call an early House election in 2016, shaving a year off his 3-year term, or hold separate House and Senate elections in 2016 and 2017.  That’s a lot of elections in a short space of time.

On the other hand, any double dissolution election creates a degree of scheduling difficulty.  Abbott might be prepared to risk it in order to fulfil his election promise to repeal the carbon and mining taxes as soon as possible.  The tantalising prospect of gaining a Senate majority at a double dissolution might entice him to chance his arm, whatever electoral dislocation it might create down the track.

IN SUMMARY

This debate will probably be rendered irrelevant by the exigencies of time and practical politics.  Nevertheless, important principles are at stake.  They matter as much to an incoming Coalition government as they would to a Labor government at another time.

It should not be seen as a party-political issue but as one in which the powers of the parliament and the executive should be protected.

Most importantly, a distorted view of the Constitution should not be allowed to prevent a legislative deadlock being remitted to the people for decision.

Of course, the best solution to the argument would be a constitutional referendum to institute concurrent terms for the House and Senate.  But that’s a different can of worms entirely.

 

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