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July 05th 2016 print

David Flint

Resolving the Constitutional Turnbacle

The votes are not yet all counted and the scrape-home winners finalised, yet the talk is already of another poll -- perhaps even another double dissolution in as little as six months. In the meantime, depending on where the chips fall, it may well come to depend on the Governor-General

turnbull worried IIThe results of the election are not yet in and already people are talking about another election. Mr Shorten claims that Mr Turnbull is contemplating a snap return to the polls.

This would be  somewhat premature. If the Coalition ends up holding a majority of seats in the House of Representatives, even only 76, the government will of course be returned, although Malcolm Turnbull will have lost an enormous amount of authority and prestige. In the event that Labor ends up with a majority of seats, Malcolm Turnbull must resign and the Governor-General will invite Bill Shorten  to form a government.

If both end up with less than 76 seats, Malcolm Turnbull may continue as Prime Minister. There is no need for him to enter into any alliance to obtain any guarantee of support from the crossbench, although he may well decide to do this.

However, if  he loses a motion expressing a lack of confidence in the government, Mr. Turnbull must resign. In the unlikely event that he fails to do so, the Governor-General would dismiss him. On offering his resignation, he could advise the Governor-General to invite Bill Shorten to form a government.

Instead, Mr. Turnbull could recommend another election.  This could only be for the House of Representatives.  This can be held at any time but it is a matter for the  Governor-General. It is unlikely that early in the term, say in the first year,  the Governor-General would agree to an early election.  He would be entitled to make his own enquiries if he wished, as Lord Gowrie did in 1941 when the 40-day Fadden minority government fell a few weeks after the fall of the Menzies minority government.  In the light of the international situation and the fact that an election had been held only recently, Lord Gowrie  extracted an undertaking from the two independents who brought down the Fadden government.

This proposition was that if he were to commission the Leader of the Opposition, John Curtin, to form a government, they would support him and put an end to political instability.  They gave the required undertaking and Lord Gowrie commissioned Curtin to form a government, demonstrating how important it is to have a head of state above politics.  (Lord Gowrie was a  former  Governor of South Australia and New South Wales, and a highly respected soldier who had won the Victoria Cross.)

In the event of an election, this could not be the sort of election we are used to, that is an election for the House of Representatives and half the Senate.  This is because senators are elected for fixed terms.

Half of this Senate will have three-year terms, expiring on June 30, 2019,  and the other half will enjoy six-year terms expiring on the June 30, 2022.  (It will be for the Senate to decide which senators fall into which group.)  A half Senate election can only be held within one year before the end of the relevant senators’ terms.

So the first date a half Senate election can be held is on the Saturday after June 30, 2018 — July 7, 2018.

While the Governor-General issues the writs for the election of the House of Representatives, it is the state Governors who issue writs for the Senate. They normally do this  in accordance with the wishes of the federal government.  However, in 1975, when it was mooted that a half Senate election be called in response to the supply crisis, some state governments indicated that they would advise their governors not to issue the writs.

There are two exceptions  to the rule that a Senate election can only be held in the year preceding the expiration of the relevant senators’ terms. The first relates to the four Territory senators who are always elected at the same time as a House of Representatives election.

The second relates to a deadlock between the House of Representatives and the Senate. Whenever the Senate rejects or fails to pass a bill from the House of Representatives on two occasions, and there is a three months interval between them, the Governor-General, acting on the advice of the Prime Minister, may grant a dissolution of both houses of the Parliament, as occurred this year.  This, however, cannot take place in the last six months of the term of the House of Representatives.  (That term runs for three years from the date of its first meeting. That has to occur within 30 days from the return of the writs.)

The Governor-General must be satisfied that supply, that is the money to carry on the government, is guaranteed until the new Parliament meets. Because supply ran out on June 30, 2016, an interim supply bill was rushed through Parliament. This could have been blocked in the Senate, but the Labor senators let it through. It was claimed that Labor does not block supply; however Labor has  attempted to block supply on 170 occasions since the Second World War.  None of these succeeded. The Coalition has blocked supply once. This  succeeded spectacularly in 1975.

No doubt Malcolm Turnbull is now wishing Labor had joined with the crossbenchers and blocked the interim supply bill.

It is more likely that the Labor Party was delighted with the prospect of the double dissolution election because they realised that they could only improve their poor situation in both houses, and that there was an outside chance they could even win. In fact the double dissolution election was very much an ”own goal” by Turnbull and it is truly extraordinary that neither he nor his advisers realised this.

As it is, Mr. Turnbull will have thrown away the considerable gains that Tony Abbott realised in 2010 (when he won the election but for an activist High Court) and 2013. Those gains were in both the House of Representatives and the Senate.  It is most likely that the three bills  that Tony Abbott so strongly pushed in relation to the democratisation of trade unions and the reform of the building industry ,  if introduced again, would be passed. Mr. Turnbull would need to have them passed by the House of Representatives where he would morally be bound to declare their passing to be a matter of confidence.  In other words if the House did not pass them, he would resign.  He may well have to do this if he heads a minority government.

There is no guarantee the bills would pass the new Senate, and if they did not, any joint sitting which the Governor-General would call if so advised by the Prime Minister.  Note that there is no obligation whatsoever on Mr. Turnbull to introduce the bills or take them to a joint sitting.

The double dissolution election at this time was ill-advised from the point of view of the government, but the Labor Party and the smaller parties, as well as the independents, are no doubt rejoicing.

David Flint is presenter of ‘Safe Worlds – Conversations with Conservatives’ on Safe Worlds TV and You Tube

Comments [6]

  1. en passant says:

    The less our politicians are able to do the better off we will be as they can cut expenditure, but not raise taxes.

  2. [email protected] says:

    Please explain your reference to 2010 and the High Court?
    I always blamed Mark Vaile for spitting the dummy after the 2007 loss and giving Port Macquarie to Oakshott.
    Thanking you in anticipation,
    Dr T B Lynch.

  3. Rob Ellison says:

    The good news is that Anna Meares was named flag bearer in Rio. Go Anna – bring back another gold.

    This one seems to tell the story.

    http://www.abc.net.au/news/interactives/chart/?chart=primary-vote-since-1949

    A 3.4% drop in the Liberal primary vote and a 1.9% increase for Labor. Enough to swing seats. Longer term the Liberal vote has held up better than Labor’s against a long term drift to minor parties – whose preferences flow mostly to Labor. The longer term strategy seems clear – to continue to shore up primary support and steal the wind from Labor’s sails. Frankly – if that means losing a few more of the right wing discontents to minor parties – so be it. But short term let’s see where the chips fall before pointlessly speculating on what ifs.

    There are a couple of things that need better explanation. The importance of trade and innovation – and of spending and tax reform – to the welfare of Australians and the ability to spend on health, education and welfare. On the environment – the success of the emissions reduction fund in contracting to sequester 150 million tonnes of carbon – the potential is to sequester much more – and to do that while conserving environments, building agricultural productivity and providing income for remote Aboriginal communities. Taking care of land is the next logical step to land grants. Sign up to the French 4 pour 1000 initiative on soil carbon and support farmers all over the country who are doing revolutionary things in ‘holistic grazing’. This is the way to ‘save’ the Great Barrier Reef. Turn a negative into a positive.

    There are things that need inspired policy change. Off shore processing has been an expensive, inhumane and failing proposition. I’d replace it with onshore processing on Palm Island off Townsville. Let refugees work in our tropical food bowls and live in the community – without the right to gain citizenship. Encourage the return home or third country relocation. Save the concentration camps for criminal recalcitrants.

    Innovate on energy. Of course they are wrong on climate change – but it doesn’t matter. Fossil fuels are getting both scarcer and harder to access. There is a limit where other sources of energy become cost competitive – and I suspect that point is quite close.

    https://watertechbyrie.com/2016/06/18/safe-cheap-and-abundant-energy-back-to-the-nuclear-energy-future-2/

    Safe, cheap and abundant energy is the mantra for the new left with a high energy future in mind.

    “Climate change can’t be solved on the backs of the world’s poorest people,” said Daniel Sarewitz, coauthor and director of ASU’s Consortium for Science, Policy, and Outcomes. “The key to solving for both climate and poverty is helping nations build innovative energy systems that can deliver cheap, clean, and reliable power.”

    One can be reactive in the conservative way – or proactive as a true liberal.

    • Rob Ellison says:

      There are 8 seats in play with leads – Liberal or Labour of less than 1000. About the best analysis I’ve seen – and I have been reading a lot – is a tweet from a Labor strategist. A lead of less than a thousand at this stage for Labor is disastrous. So perhaps 78 seats for the Liberals. You then put it to a dual sitting, shrug your shoulders if it doesn’t pass and use it to bash Labor and the Greens over the head every time the unions act up.

  4. pgang says:

    The sad thing is that union and building industry reform are real things that Australia needs, but they are now just political playthings. Turnbull has stuffed things up royally.

    • padraic says:

      It is interesting to note from David Flint’s paper that the States constitutionally have control over issuing the writs for Senate elections. If the Senate is to be a “States’ House” as was the original intention and apparently with the power to block legislation from the Reps if it was considered to impact adversely on a State, then perhaps Senators planning to vote against legislation from the Reps should be compelled to seek approval from their State Government. This may minimise the chaos and bring the Senate back into line with its original raison d’etre.