With Malcolm Turnbull’s leadership now in its terminal stage, it seems likely that opposition parties will vote to defer the legislation to establish the Carbon Pollution Reduction Scheme, with the legislation being referred to a Senate inquiry until after the Copenhagen international climate change conference.
It has been disputed about whether such a deferral would constitute valid grounds under the constitution to trigger a double dissolution.
Section 57 of the Australian constitution governs the triggering of double dissolutions, and says:
If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. 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.
The amendments that were produced from the Rudd-Turnbull deal have been introduced into the Senate, rather than the House of Representatives, so that if the Senate blocks the legislation or passes it with unacceptable amendments, it is the same legislation which has been amended as was blocked in August. If the House of Representatives had passed the deal’s amendments, however, the Senate would not trigger a double dissolution by blocking it.
Some analysts, such as Antony Green on PM today and on his blog, and Greens Senate chief of staff Ben Oquist on Twitter, have argued that a deferral of legislation to a Senate committee would not count as ‘failure to pass’ under Section 57.
Green argues that, while the 1951 double dissolution was caused by ‘failure to pass’ legislation, this took place after substantial delay. However, it seems unclear whether there are any minimum requirements for a ‘failure to pass’ argument, beyond the constitutional requirement that three months have passed between attempts to pass legislation.
On top of that, it appears that the only person the Government needs to convince to trigger a double dissolution is the Governor-General, who would be extremely unlikely to reject such a request. The only circumstances in which such an interpretation could be challenged in court would be if the CPRS legislation was passed in a joint sitting following a double dissolution election and another blocking of legislation by the Senate.
In such a case, any such overturning of legislation would not overturn the result of an election where Liberals were decimated and the Greens gained the Senate balance of power. According to Freehills law firm, it would not be possible to pass the CPRS through a joint sitting anyway, as it relies heavily on regulations, which could be subsequently disallowed by a Senate that had been circumvented in the passage of the legislation. This is the same reason why the Australia Card was not implemented after being the trigger for the 1987 double dissolution.
When considering these factors, it seems almost certain that the Government would be able to use the CPRS as a trigger for a double dissolution if it is referred to a Senate committee and the ALP decides to use the trigger.
So if I read this correctly – if there is a double dissolution, following the obligatory election, the CPRS bill then has to go to the Senate again before there can be a joint sitting. This is what the Greens would want isn’t it? As they might then be the sole group with the balance of power in the senate, and could negotiate amendments that would improve the bill. Am I reading this right?
I think your argument here is right. This demonstrates the danger of taking the word of expert psephologists as accurate when discussing subjects outside their area of expertise.
I understand it is convention for the Governor-General to accept advice from the Government not if they are personally convinced it is correct, but merely if they are convinced the Government has put forward an legally arguable case.
Charles
No, I think it means that the joint sitting may pass the CPRS, but the Greens and other opposition parties would be able to combine in the Senate to disallow the regulations that the government needs to introduce to make it all work, so effectively the CPRS as is will be dead anyway, and the government will have to start from scratch negotiating a new deal on new legislation with either the Greens or Opposition. ???
Ahh thanks Nick. That makes it a bit clearer.
I have to say that this whole thing has me very excited! I’ve just had an argument with one of my disgruntled ALP friends about whether a DD would be good for the greens. He argues that most of the greens senators would likely end up in the later 6 senators which only get 3 year terms.
My response to him has been that
A, It probably doesn’t matter because: if the CPRS can be greener and fixed for the next 10 years then yay!
B, Public polling suggests we will get above DD quota in every state except SA and QLD hence probably get at least four 6-year terms.
Is this strictly true? What do the more knowledgeable psephs around here think?
Rob,
It doesn’t quite work like that. If I’m right, the votes are counted twice, once with a quota for six senators and the other time with a quota for twelve senators. So if we get enough votes for a Senator to be elected in a half-senate, then they get a six-year term, otherwise it’s a three-year term. So we could still get many six-year termers, but it could go either way.
Ben, there is case law on the meaning of ‘fails to pass’. The PMA case in 1975 stated “The Senate has a duty to properly consider all Bills and cannot be said to have failed to pass a Bill because it was not passed at the first available opportunity; a reasonable time must be allowed.” Any request for a double dissolution will have to address this question, and there will be page after page of advice on the meaning. If the bill is simply deferred this session, the government can’t call an election until after new year. Parliament is due to sit again the first week of February, and it it is much more likely the government will just ramp up the pressure with a new sitting on the deferred bill.
To the point of case law:
The Government, should it wish to call a double dissolution right now, merely has to convince the Governor-General that it has an arguable case (not a winnable case, or one the GG agrees with) that the conditions of S57 have been met. The need to tender “page after page” of advice does not mean that the Governor-General would refuse the Government’s request.
Of course there are many reasons why the Government is unlikely to call a double dissolution right now, but the confident assertions that one *could not* be called now appear to be wrong.
It does not have a case now. The bill is in the middle of Senate consideration. Depending on what happens next week it may have a case it can argue but it does not have a case now.
The Government Leader in the Senate has already accused the Opposition of delaying tactics. If the Government wished to call a double dissolution all it would have to do is assert in legal form to the Governor-General that the Opposition’s actions in the Senate were of “such a delaying intention as would amount to an expression of unwillingness to pass” the CPRS legislation (Odgers Senate Practice).
Given the public expressions of opposition to the CPRS legislation by many Opposition Senators, I don’t see why the Government couldn’t make such a case if it chose, no matter whether the bill is formally being considered by the Senate or not. The Government could easily argue that the need to show it was determined to take an agreed scheme to Copenhagen would justify the double dissolution.
The Senate voted at the second reading to send the bill into committee and it is currently being debated in committee, even if somewhat labouriously. The government has already announced the Senate and the House will be back next week to continue the debate. As has been the case all year, the government continues to display a desire to get its legislation passed rather than desire to get an early election. Some assertion now that the conditions for a double dissolution have been met would cut short any chance of the legislation being passing next week and also dimish the right of the government to attend the Copenhagen conference. Depending on what happens next week, the conditions may be entirely different. I contnue to hold to the view the conditions for a double dissolution have not been met this week.
Sorry, a little off-topic, but the Nats have preselected the relatively unknown Kevin Hogan as their candidate for Page. He’s the nominee mentioned in this article last month:
http://www.northernstar.com.au/story/2009/10/27/nats-in-a-pickle-over-page/
So I think it’s safe to say you can now bet the house on Janelle Saffin to hold the seat. There’ve been no further reports about possible Liberal candidates.
My view is that if the Liberal Senators all agree to defer a final vote on the Bill until next year (including by sending it or just the amendments to a Senate Committee, which would have the same effect), then Kevin Rudd wuold have sufficient grounds to request a double dissolution election from the Governor-General. This doesn’t mean they will of course.
Rudd obviously won’t announce an election before Christmas. He could call it late January, early February before Parliament resumes.
No one knows for sure whether the High Court would agree that this constitutes a “failure to pass” or not. But if the High Court disagreed (assuming someone challenged the validity of any joint sitting held to pass the Bill, which I am sure they would), that would just invalidate the Bill, not the election.
It seems almost certain the Greens will hold the balance of power after a double dissolution (as they would after July 1 2011 with a normal half-Senate election), and the CPRS Bill would be put to the new Senate in the normal way after the election. It would depend on whether the re-elected Rudd government felt like negotiating with them, or just waited for the joint sitting.
Of course, as has been pointed out, that would still leave them unable to guarantee the ‘passage’ of the CPRS Regulations.
I think a February double dissolution is less likely than the legislation being deferred and the government just keeping up the pressure for its passage through until Parliament resumes, or for the CPRS passing next week. But it will be an option if the Bills end up being deferred.
http://www.abc.net.au/news/stories/2009/11/30/2757123.htm
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The Nationals have decided on a candidate to contest the seat of Page at the next federal election.
Clunes man Kevin Hogan was unanimously endorsed when 50 local party members met in Casino over the weekend.
The 46-year-old says he could certainly have chosen a better time to make his entrance into federal politics.
“Well obviously I was almost laughing in despair at one stage last week because obviously the Liberal party has been in a complete state of implosion,” Mr Hogan said.
“I mean I think while it’s very healthy to have disagreements in a party and debate in a party, it’s always much better to do that behind closed doors than in front of all the TV cameras,” he said.
The small business operator was previously a teacher at the St Mary’s High School in Casino.
He says he has strong views on the issue which has threatened to tear the Coalition apart.
“I am no scientist but I certainly understand the need for us to act on climate change because it’s not something that we can ignore, because if the science that most people are proposing is right, then we have to act, there’s no choice,” Mr Hogan said.
“I think though there is the separate issue of the ETS and I certainly am in favour of us waiting until Copenhagen,” he said.
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Interesting quote for a Nat.
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