Who's Afraid Of A Double Dissolution?


This week will be the final sitting week for the Senate until mid-August and, as is usually the case at this time of year, the Government has a large pile of legislation that it is insisting absolutely must be dealt with by the end of the week.

But while "utegate" and "babygate" (in the Senate at least) will soak up some media attention, most of the legislative focus will be on the Government’s Carbon Pollution Reduction (or emissions trading) Scheme (CPRS).

There are the usual threats of sitting into the weekend and beyond, or of bringing the Senate back for an extra week’s sitting sometime in July. However there is absolutely zero chance that the Senate will be called back in mid-July, and it’s fairly unlikely proceedings will go past Friday this week.

The bigger question is whether the CPRS Bill, which will almost certainly fail to gain the necessary votes to pass in the Senate, will be used by the Government as a trigger to call an early double dissolution election before the end of this year.

Various advices, some formal and some not so formal, will be thrown around over whether adjourning debate — and a final Senate vote — on the legislation until August would meet the definition of "failure to pass" under Section 57 of the Constitution. If such an event does qualify as a "failure to pass", it starts the clock ticking on the three-month period set in the Constitution that the Government must wait before it can reintroduce the Bill if it wants to use the Bill’s second failure in the Senate as a trigger for a double dissolution election.

These varying opinions are of some academic interest but frankly don’t matter much. If the Government can provide a credible legal opinion to the Governor-General that the conditions of Section 57 have been met, then an election will be called if they want it. The High Court might void any legislation passed via a joint sitting of Parliament after the election if they disagreed that the conditions of Section 57 had been met, but I can’t imagine a circumstance where the High Court would void an election on this basis after the fact.

So, given that the CPRS is almost certain to be defeated or delayed by the Senate at some stage during this week, are we headed for an early double dissolution election? While election speculation is a favourite topic for political observers, the obsessive focus on possible dates has often annoyed me as it takes attention away from the real decisions and issues that directly affect people here and now.

However, it is a question that is being repeatedly floated, so we might as well have a proper look at it.

I think the chance of an election being called before the end of the year is minimal. Having an election this year would be seen as just too soon by many people, unless there was an overwhelming reason. In addition, an election called before the redistributions in Queensland and New South Wales can be finished would create a very messy situation. Two Queensland electorates would be split into three and two New South Wales electorate would be merged into one as soon as the election was announced. With less than five weeks until election day, parties, candidates and voters would all have to figure out which electorate they were in and who the contestants were. I can’t see this scenario helping the Government much.

But I do think there is a reasonable chance — maybe 25 per cent — that the Government could use a double dissolution trigger for an election sometime early next year, if they felt the circumstances were right.

Regardless of whether the next election is a double-dissolution which elects the full Senate, or a standard election electing only half the Senate, it is a virtually certainty that the Greens will have the balance of power afterwards. The key factor is not how many seats the Greens might win, but the fact that the Coalition will lose at least one in Queensland, where their fortuitous four-seats-out-of-six haul from the 2004 election cannot be repeated now that the Liberals and Nationals are running on a joint ticket. They may well lose one or two more, but one is enough to give the Greens the sole balance of power, regardless of whether they increase their own tally or not.

The most significant difference between a half-Senate and full-Senate (double dissolution) election as far as the Parliament is concerned right now is that the change to a Greens balance of power would happen straight away (rather than be delayed until July 2011) under a half-Senate election. Although Steve Fielding’s minimal chances of getting re-elected would clearly be better (although still not very high) in a double dissolution, in either of the two election scenarios it is hard to see the Greens not finishing up as the sole holders of the balance of power.

Governments always call an election at a time they believe best suits them, and they continually monitor all the factors in assessing and reassessing when that might be. There may be a Plan A, B, C and D, but there is no sealed envelope in the Prime Minister’s bottom drawer with an election date written on it.

While an early 2010 double dissolution election may have some attraction for the Government — not least in simplifying their task in getting things agreed to by the Senate — the downside for them is that it will constrict their options for running a full term next time. In a double dissolution election, those Senators who are only elected for a half-term (three years) are deemed to have started their term from the preceding 1 July, which would be likely to cut at least seven months off the term of the whole Government — unless it was prepared to call a Senate-only election sometime before 1 July 2012.

It is widely assumed these days that no government will call a Senate-only election — the last was in the late 1960s — so a double dissolution in the first part of next year makes it hard for the Government to avoid an early election in their second term.

So there may be an early election next year, although it’s more likely there won’t be. Probably the best option for the Government — all other things being equal regarding political events — would be to call a double dissolution in early July 2010, assuming they had a trigger by then. This would mean they could get their double dissolution in just before the onset of the Constitutional prohibition that prevents a double dissolution happening less than six months before the end of the Parliament’s three year term. And it would also make it possible for the Government to run a full three years in their subsequent term.

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