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)

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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. [Read more...]