Proroguing Parliament, double dissolution elections and other constitutional delights

It appears clear that the Governor-General (acting on the advice of the Prime Minister as per Westminster convention) can under Constitution section 5 prorogue the current Parliament and then appoint a new session to commence on 18 April. Presumably that is what occurred this morning by Proclamation pursuant to section 5. This is a reserve power at least in some circumstances, so the Governor-General probably could if he chose have made up his own mind about it rather than simply taking the advice of the Prime Minister. It would appear that he chose not to do so and simply took Turnbull’s advice.

In that sense one might think that Turnbull has outflanked the Senate resolution of last Friday not to reconvene without unanimous support. However, as ABC psephologist Antony Green tweeted this morning, while the Governor-General’s proclamation under section 5 can require both Houses of Parliament to reconvene on a specified date to commence a new session, as far as I can see neither section 5 nor any other constitutional power of the Governor-General would prevent the Senate from immediately resolving to adjourn until a later date in the newly appointed session of Parliament (say after 11 May when a double dissolution is impossible).

However that too might be thwarted by the government with the Governor-General’s concurrence. It may well be that the very step of the Senate immediately adjourning on 18 April would constitute a failure to pass the ABCC bill within the meaning of Constitution section 57 (the deadlock/double dissolution provision) such as to allow Turnbull to advise the Governor-General to dissolve both Houses and call a double dissolution election in any event.

There’s never been a more exciting time to be a constitutional lawyer (except 1975 – but I was only a young lad then – and …).

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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16 Responses to Proroguing Parliament, double dissolution elections and other constitutional delights

  1. john Walker says:

    I am not a ‘exciting constitutional lawyer ‘, but would be truly surprised if this has not been well and truly ‘ war gamed’ by Turnbull ages ago.

  2. Jim Rose says:

    Labour and the Greens did do well in flushing out Malcolm Turnbull’s intentions regarding a double dissolution by adjourning the Senate in the way they did

  3. paul walter says:

    1975 is the operative symbol and the threat to democracy is severe. I was comfortable that the Senate had postponed consideration of changes to Senate voting till after an election, rather than permitting a virtual bookmarking of changes for the short term, unobtrusive gain of the Coalition.

    Had the Labor and Greens upper echelons stopped bickering amongst themselves and stood firm, Turnbull would have been smoked out in a way that would have alerted the electorate as to the deceitful pieces of Abbott era legislation being pushed through without challenge.

    Broken system and epic fail from just about all the politicians, the stringpullers behind the scenes and demonstrates the impact of the imposition of the IPA strand of globalisation on locales and communities as to self determination.

    Thank you Nicholas, this is the article I missed in all todays newspapers- the one that should have been there instead instead of diversionary waffle about Madonna’s tits, say.

  4. derrida derider says:

    If the Senate does adjourn itself before voting on the ABCC legislation I think Turnbull could be confident that the G-G will allow the double dissolution on the grounds you stated (he’s probably been discreetly talking with the G-G to gauge his constitutional views anyway). Though it might be even better for him if the governor refused his advice – he can point to Senate “obstructionism” and note how urgently his recent voting reforms were needed. Plus of course it wouldn’t hurt his republican cause at all and be an indirect one in the eye for Abbott.

    This would be a far better things to go to an election on than the ABCC; unions are nowhere near as dreaded by swinging voters as this pro-business government thinks.

    John Walker is right – they’ve had lots of time to think this through.

    • John walker says:

      The reasons for why some people decide to vote for ‘who what’can be disconcerting if you think policy matters. Not long after the last election I discovered that a intelligent man that I know ,and quite like, much to my suprise had voted for PUP, his reason was : I just felt like sending a message. ( did not know what to say so I did not ask , what message?)

      • Marks says:

        This is part of the theory of the Trump ascendancy.

        Although I cannot decide whether it was Abbott or Palmer as the Trump equivalent.

        There’s also the theory of altruistic punishment at play possibly.

  5. RexR says:

    Good post Ken. Looking forward to reading your observations on all of this.

  6. John Goss says:

    Lovely little report in the Tele today.

    ‘AHEAD of the 1974 federal election, a young second-year law student teamed up with his law lecturer to present an argument to the High Court. The pair believed a planned double dissolution election conducted on existing boundaries would be unconstitutional.
    The High Court rejected this line of thinking and a double dissolution election was duly held on May 18, which saw Gough Whitlam’s two-year-old Labor government returned to power with a reduced majority.
    The name of that young law student was Malcolm Turnbull, who now finds himself in a very different situation regarding a looming vote for both houses of parliament.’

    Turnbull has indeed been considering constitutional matters with regard to double dissolutions and associated matters for some time!

  7. Nicholas Gruen says:

    It seems to me that the Senate immediately adjourning is a failure to pass. Hard to understand how it could not be.

    • paul walter says:

      How can failure to pass be just cause if the government is too dishonest to allow for the open debate time frame processes necessary for serious change determined throughthe responses of an well informed public?

      Why has this situation ocurred where again exclusion seems to be the hallmark as to public participation, almost remiscint of the FTA debates.

      Why is THIS legislation so pressing when so much else is left on queues for consideration?

  8. paul walter says:

    It is not for the Senate to do the hard right’s political dirty work for it. God help us if it gets as gelded as the US Supreme court. The correct move was for the Greens not to renege on last week’s agreement to hold consideration ’til after the election, in a more consideration oriented atmosphere, without jeopardising this last bulwark of parliamentary government, non government influence that has seen the worst of many bad ideas deamed up by the cranks running things filtered through better consideration and in some cases removal.

    Yes, Australia. It could be an iceberg..puhleese!!

  9. ChrisB says:

    For PMs, the great plus of having military men as GGs is that they’re accustomed to doing what they’re told.

  10. Jim says:

    There has never been a more exciting time to be an Australian business owner observing the political classes seek to turn everything on its head over such a trivial matter (the ABCC).

    A business wouldn’t disrupt the normal course of business (or seek full election of a new Board of Directors) over such a trivial matter, so why should Government?

    So could one of the constitutional lawyer types on this blog explain why there is no materiality/needs tests for a DD election trigger?

    Without a materiality/needs test for DD elections, what is to stop any incumbent with a good chance of winning the election, but still faced with a minority in the upper house, just engineering a DD for their own political purposes? Australian politics has now stooped so low; I wouldn’t be surprised if developing bogus DD triggers doesn’t become the new ‘must have addition’ to every legislative program.

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