An Early Double Dissolution?


Turning the ‘Alcopops’ legislation into a trigger for a double dissolution provides the government with an alternative path to pass the legislation after an election. But more importantly it provides the option of a double dissolution at any time.

If the government has key budget measures or the CPRS legislation blocked, the government can use the ‘Alcopops’ double dissolution trigger to frame an early election on the basis of the Senate obstructing other legislation. A double dissolution trigger is a mechanism to achieve an early election, not necessarily the main issue for an early election.

In the current situation, the government’s first option would be to have its ‘Alcopops’ legislation passed into law. Its second choice would be to accept the double dissolution trigger it has been provided with and liberally use it as a threat to get the Senate to pass other government legislation.

Its third option would be to call a double dissolution election, though the current state of opinion polls and the predicted path of the economy must mean that some in the government will see using the double dissolution trigger to call an election is the second rather than the third option.

The mechanics of the constitution on early elections are clear in broad outline. The House of Representatives has variable terms, the Senate fixed staggered terms. Where the two chambers are in conflict, Section 57 of the Constitution is a deadlock resolution provision allowing for a double dissolution of both the House and the full Senate.

The current House was elected on 24 November 2007. Its term is for three years timed from its first sitting after the election, 12 February 2008. So if the government does not call an earlier election, the House of Representatives will expire through the effluxion of time on 11 February 2011. Under the timetable for elections set out in the Constitution and the Electoral Act, the last possible date for a House election is 16 April 2011.

However, the government can request a House election at any time. The government could request an early House election as a way of claiming a new mandate to overcome Senate obstruction. All the Prime Minister would have to do is request an early election stating his reasons, and the Governor-General would almost certainly assent to the election.

But the Governor-General could only issue writs for a House of Representatives election. The Constitution would prevent the issue of writs for a half-Senate election. Section 13 of the Constitution states that writs for a half-Senate election can only be issued in the last year of a Senate’s term. This means that writs for the next half-Senate election cannot be issued before 1 July 2010. The first possible date for a half-Senate election is 7 August 2010. There cannot be a normal election for the House combined with half the Senate before 7 August 2010, only a double dissolution or separate House election.

On a technical note, the fixed Senate terms only apply for the 72 State Senators. The terms of the four Territory Senators are provided for in legislation. Their terms are maximum three years, with the terms tied to the terms of the House of Representatives. An early House election would also be for the four Territory Senators, though it would almost certainly return one Labor and one Coalition Senator for each Territory, the result that has occurred at every election since 1975.

The only way that the government can change the Senate numbers before 1 July 2011 is to call a double dissolution. A double dissolution is a deadlock provision designed to allow the House of Representatives to overcome the blocking power of the Senate. It allows the government to force the whole Senate to the electorate at once, breaking the Senate’s fixed term and changing the Senate numbers.

There is little doubt the government would find this option attractive. The Coalition currently has 37 Senators, Labor 32, with 5 Greens, Senator Xenophon and Family First’s Steve Fielding. On current numbers, the Coalition need to lure only one of the cross-bench Senators across the aisle to block legislation.

A double dissolution would almost certainly reduce the Coalition to 32-34 Senators, even less if current opinion polls are to be believed. Labor would probably gain Senators and stand a strong chance of gaining a majority of seats in conjunction with the Greens. Senator Xenophon would be re-elected, perhaps with a colleague from his ticket, while Senator Fielding would be unlikely to win re-election, ending his term which currently runs until June 2011.

However, by reducing the quota for election from 14.3% to 7.7%, a double dissolution could also bring into the Senate a rag-tag collection of unknown Senators from micro-parties, elected thanks to the vagaries of the Senate’s preferential voting system.

The double dissolution provisions are contained in Section 57 of the Constitution. It states that a bill must first be passed by the House and then be rejected, fail to pass or be unacceptably amended by the Senate. After a period of three months, the same bill must be passed by the House and then again be blocked, fail to pass or be unacceptably amended by the Senate. This provides a trigger which allows the Prime Minister to request a DD. The trigger does not have to be used at once, but must be used before six months from the end of the term of the House. So the announcement of a dissolution for a DD must take place by 11 August 2010, meaning that a double dissolution could take place as late as 16 October 2010.

After a DD, the government must again present the legislation, and if it is again rejected by the Senate, then a joint sitting of the two Houses can be called under Section 57 at which legislation can be passed by both chambers voting together. The only time a joint sitting under this provision has been held was in 1974 when the Whitlam government passed four major pieces of legislation that had previously been blocked by the Senate.

The ‘Alcopops’ legislation passed the first test of the double dissolution mechanism on 18 March when it was defeated in the Senate. By trying to pass the legislation again after 18 June, the government meets the three month delay requirement of Section 57. If the ‘Alcopops’ bill is then defeated in the Senate, the government has a trigger to request the Governor-General to issue writs for a double dissolution. It is a trigger the government does not have to use at once but could put away to be brought out from time to time as a threat to the Opposition in the Senate, or to unveil for real in asking the Governor-General for a double dissolution.

Again it should be stressed that in re-introducing this legislation in a manner that allows it to become a double dissolution trigger does not mean the government is about to call an election. Introducing the ‘Alcopos’ bill in this manner increases the pressure on the Senate to pass the legislation, using the threat of an early election to force a legislative ‘blink’ from the Senate.

Also, if the government does achieve a double dissolution trigger, it does not mean it is about to call an early election. Yes the government is well ahead in the opinion polls. Yes the budget reveals that the economy may be in a worse position in the second half of next year when the government is due to face the electorate. But we have seen in the past that governments that call early elections have seen enormous opinion poll leads disappear as an election forces voters to focus on the real choices at hand.

An additional problem with an early election is the fact that redistributions are currently under way in both New South Wales and Queensland. This does not make an early election impossible, but does make it administratively messy.

Given an election in September/October 2010 has always been the government’s preferred option, having a double dissolution trigger may actually be a useful option for the government. A double dissolution in October 2010 may be a preferable option to a normal House and half-Senate election.

Holding a double dissolution rather than a normal half-Senate election may give the Labor Party a better position in the Senate.  No doubt some Labor number-crunchers have already looked at that option. But more importantly, a double dissolution would change the Senate at once, where under a half-Senate election, Labor would still be at the mercies of Senator Fielding and the Opposition through until June 2011.