Calling the Double Dissolution Stakes

It now looks as if Malcolm Turnbull is gone for all money as federal Liberal leader (a shame from my viewpoint).  Meanwhile, Rudd Labor is ramping up the rhetoric hinting at a double dissolution election.  But is that really likely? There are a couple of major factors suggesting otherwise, one legal or constitutional and the other political.

First, it’s by no means certain that the Senate’s failure to pass the ETS legislation next week would provide Rudd with a double dissolution trigger that would survive constitutional challenge.  The law on this area was laid down by the High Court in three decisions during the Whitlam government era (see especially the PMA Case and Cormack v Cope).  The relevant factors are well summarised in an article by Geoffrey de Q Walker at the HR Nicholls Society website:

Traditionally the courts consider the internal proceedings of parliament to be non-justiciable and will not intervene to ensure compliance with standing orders or similar rules. But because s 57 establishes a special law-making procedure with specific requirements, the High Court takes the view that it has the right and the duty to intervene if those requirements have not been met. It may do so at any stage, but will not examine the course of the s 57 process before a proposed law is passed by a joint sitting, in any case where the proposed law can be declared invalid if s 57 has not been complied with. As that will usually be possible, judicial intervention before the formal enactment of a law will be rare.
On the other hand, even if the requirements of s 57 have not been complied with, the double dissolution, the subsequent election and any other legislation passed by the new parliament will not be declared invalid. It is only the particular Act or Acts passed by the joint sitting that will be nullified. Further, the Governor-General’s exercise of any discretionary powers under s 57 is non-justiciable.
Steps in the s57 Procedure
1. The House of Representatives passes a proposed law.
At one time it was thought that the deadlock procedure could only be activated when the governmental system was being prevented from working properly, such as when an appropriation bill was held up. It is now accepted, however, that it can be invoked in the case of any proposed law.
2. The Senate (a) rejects or (b) fails to pass the proposed law or (c) passes it with amendments to which the Representatives will not agree.
Of the three terms describing negative action by the Senate, “rejects” is the clearest and describes at least the standard situation of a motion to pass the bill being lost. “Fails to pass” is broader and more uncertain, as it describes an omission. The High Court has interpreted it in the context of the normal pattern of parliamentary deliberation, so that an adjournment for the usual Christmas-New Year break will not satisfy the language of s 57, nor, by itself, would referring the bill to a select committee. The Senate must be allowed adequate time for deliberation and debate. But a resolution postponing the bill’s second reading for six months would qualify as a failure to pass. Under Senate standing orders that is a traditional way of rejecting a bill and has the effect of finally disposing of it.
Whether the Senate has failed to pass a bill thus involves examining its overall treatment of the bill. Justice Stephen in PMA stated that “No conclusive test can be devised which, by its application, in all circumstances will provide a ready answer to the question whether in any particular instance parliamentary conduct involves a failure to pass for the purposes of s. 57 … [T]he methods that may be adopted are various and may involve no more than the excessive use of otherwise appropriate and usual parliamentary procedures, filibustering provides an example; thus it may not be the character of the particular parliamentary conduct but rather its excessive employment that may identify it as a failure to pass”.
The question is whether there has been “a calculated use of parliamentary procedures with a view to delay”. That involves considering, among other things, “the importance, complexity and, perhaps, novelty of the measure in question”. (Genuine urgency could also be relevant.) The same procedural step could be regarded as a failure to pass, or not, depending on the Senate’s entire conduct in relation to the bill, Chief Justice Barwick explained in the same case. Referring a bill to a select committee was considered mere prevarication in 1951, but in different circumstances it might not be.
“But it will be the conduct of the Senate itself”, Barwick added, “and not the conduct or opinions or anticipatory statements of individual Senators, whatever may be their party standing or party authority, which can have any relevance to the question”. The Court will look only at the action or inaction of the Senate as a body.

Traditionally the courts consider the internal proceedings of parliament to be non-justiciable and will not intervene to ensure compliance with standing orders or similar rules. But because s 57 establishes a special law-making procedure with specific requirements, the High Court takes the view that it has the right and the duty to intervene if those requirements have not been met. It may do so at any stage, but will not examine the course of the s 57 process before a proposed law is passed by a joint sitting, in any case where the proposed law can be declared invalid if s 57 has not been complied with. As that will usually be possible, judicial intervention before the formal enactment of a law will be rare.

On the other hand, even if the requirements of s 57 have not been complied with, the double dissolution, the subsequent election and any other legislation passed by the new parliament will not be declared invalid. It is only the particular Act or Acts passed by the joint sitting that will be nullified. Further, the Governor-General’s exercise of any discretionary powers under s 57 is non-justiciable.

Steps in the s57 Procedure

1. The House of Representatives passes a proposed law.

At one time it was thought that the deadlock procedure could only be activated when the governmental system was being prevented from working properly, such as when an appropriation bill was held up. It is now accepted, however, that it can be invoked in the case of any proposed law.

2. The Senate (a) rejects or (b) fails to pass the proposed law or (c) passes it with amendments to which the Representatives will not agree.

Of the three terms describing negative action by the Senate, “rejects” is the clearest and describes at least the standard situation of a motion to pass the bill being lost. “Fails to pass” is broader and more uncertain, as it describes an omission. The High Court has interpreted it in the context of the normal pattern of parliamentary deliberation, so that an adjournment for the usual Christmas-New Year break will not satisfy the language of s 57, nor, by itself, would referring the bill to a select committee. The Senate must be allowed adequate time for deliberation and debate. But a resolution postponing the bill’s second reading for six months would qualify as a failure to pass. Under Senate standing orders that is a traditional way of rejecting a bill and has the effect of finally disposing of it.

Whether the Senate has failed to pass a bill thus involves examining its overall treatment of the bill. Justice Stephen in PMA stated that “No conclusive test can be devised which, by its application, in all circumstances will provide a ready answer to the question whether in any particular instance parliamentary conduct involves a failure to pass for the purposes of s. 57 … [T]he methods that may be adopted are various and may involve no more than the excessive use of otherwise appropriate and usual parliamentary procedures, filibustering provides an example; thus it may not be the character of the particular parliamentary conduct but rather its excessive employment that may identify it as a failure to pass”.

The question is whether there has been “a calculated use of parliamentary procedures with a view to delay”. That involves considering, among other things, “the importance, complexity and, perhaps, novelty of the measure in question”. (Genuine urgency could also be relevant.) The same procedural step could be regarded as a failure to pass, or not, depending on the Senate’s entire conduct in relation to the bill, Chief Justice Barwick explained in the same case. Referring a bill to a select committee was considered mere prevarication in 1951, but in different circumstances it might not be.

“But it will be the conduct of the Senate itself”, Barwick added, “and not the conduct or opinions or anticipatory statements of individual Senators, whatever may be their party standing or party authority, which can have any relevance to the question”. The Court will look only at the action or inaction of the Senate as a body.

As far as I can see, neither the Senate nor the House of Representatives were due to sit again before Christmas, however it seems that a sitting at least on Monday is now planned and scheduled.  I don’t know whether any additional sitting days have been scheduled.  Can any reader help here?  If there’s only one more sitting day in any event and still some 300 amendments to get through, then the committee stages of Senate debate would be highly likely to consume that time even without any need for obvious filibustering by Coalition Senators.  Moreover, given the complexity and even uniqueness of the legislation and the fact that the Copenhagen Summit, which almost by definition has profound implications for the future and shape of the ETS scheme, will be occurring soon after the legislation is debated, there must be a significant probability that the High Court would eventually find that referral to a Senate committee to report in February would be a reasonable course of action and would NOT constitute a failure to pass for double dissolution purposes.  That would mean that the legislation passed at a joint sitting of Parliament (assuming one were still needed after the election) would be held constitutionally invalid in any event.

The second relevant factor is the likely political outcome of a double dissolution election.  There is little doubt in the present situation that Labor would be returned with an increased majority.  Would it, however, be a crushing victory?  Most of the pundits seem to think so, not to mention Malcolm Turnbull.  However, would that necessarily be the case if, as expected, Copenhagen is relatively inconclusive? Many voters in that situation might resent being forced to the polls prematurely and for no compelling reason by an opportunistic Rudd.  Moreover, despite polls fairly strongly (though not as strongly as a year ago) showing public support for an ETS, the public has yet to focus on the practical consequences of even the current very modest ETS : it’s in effect a new and significant tax.  It will be remembered that in the run-up to the last election, public opinion was showing both strong voter support for an ETS and equally strong voter resentment at high petrol prices, despite the obvious logical incompatibility of those two attitudes.  Rudd’s (later abandoned) FuelWatch scheme managed to square the electoral circle at the time, but that sort of pea and thimble trick is unlikely to divert public attention from the real and imminent effect of actual ETS legislation, especially if other countries have failed to reach a similar position at Copenhagen.   It may well be possible for the Opposition to mount an effective  “oppose the job-eating ETS tax” election scare campaign.  It probably wouldn’t win the election for the Coalition given its parlous state both in the polls and in immediate reality, but it might minimise the scale of the loss just as Beazley’s opposition to Howard’s GST in 1998 reduced what would otherwise have probably been a much stronger Coalition victory then.

The ABC’s election analyst Antony Green suggests that  Labor would certainly have a significantly less friendly Senate after a double dissolution election than after a normal half-Senate one, which is due later next year anyway.  Green’s figures suggest that Rudd would certainly need to rely on the Greens for passage of legislation opposed by the Coalition after a double dissolution, whereas after a half-Senate election they might at least be close to being able to cobble together deals with a motley assortment of Independents and Coalition renegades like Barnaby Joyce (but then again they might not).  In any event either scenario is an improvement on the current situation where Labor needs both the Greens and one of either Xenophon or the completely loopy Steve Fielding.  However, the prospects for the ETS legislation are brought into sharp focus by this analysis.  The current ETS legislation (or anything like it) will not gain Greens support, and anything stronger is unlikely to garner enough Independents if even a reduced Coalition continues to oppose it.

Accordingly we’re back to the double dissolution scenario.  Will Rudd pull the trigger in a situation where any ETS legislation he rams through a joint sitting is quite likely to be invalidated by the High Court, and where he will thereafter certainly  have to co-exist with a more hostile than necessary Senate for the next 3-6 years in any event?  Or will he wait and call a normal half-Senate election?  Of course the other option would be to call a normal half-Senate election but do so immediately (i.e. in February), (see Antony Green’s comment below) basing Labor’s argument on the need for resolving the political and policy chaos.  That might well be the most attractive option for Rudd, but whether he chooses it may depend on the outcome of Copenhagen.  With both China and the US now professing to be intending to implement greenhouse gas reduction targets very similar to Rudd’s (around 5% below 1990 levels, although both express them by comparison with 2005 levels to make them sound more impressive), it is conceivable that Rudd could plausibly argue that implementing his ETS won’t cost Australian jobs because all our main trading partners are doing similar things.  If the outcome of Copenhagen is less clear than that,  even a fractured and dispirited Coalition could mount a plausible enough scare campaign to make even an early half-Senate election a less attractive option for Rudd than it presently seems. Of course, whether the bumbling, likeable but not especially articulate Joe Hockey could successfully prosecute such a scare campaign is another question.  Turnbull probably could have, but he’s tied his colours irretrievably to supporting Rudd’s ETS and going down with the ship.

Anyway, I seem to have succumbed to the sort of “football commentary” political analysis for which I criticised Jacques Chester in comments only a couple of days ago (and which Troppo usually tries to avoid).  I just couldn’t help myself .

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 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 the early 1990s.
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9 Responses to Calling the Double Dissolution Stakes

  1. Jacques Chester says:

    In fairness, you managed about 80% legal meat and 20% drama dressing :D

  2. Antony Green says:

    Great article. One important problem is in the 2nd last par. The government can’t have a House and half Senate election before 7 August because the constitution prevents Senate writs being issued before 1 July 2009. It’s a DD or a seperate House election before 7 August. Writs for a DD can be issued as late as 10 August meaning an election between 18 Sep and 16 Oct. A DD after 1 July 2009 avoids the Senate terms being backdated to July 2009.

  3. Antony Green says:

    Sorry, DD after 1 July 2010 I meant.

  4. Tel_ says:

    Rudd is bluffing on a medium weak hand (poker commentary — more apt than football commentary). Every time Rudd rumbles and dances about double dissolution he simultaneously waters down the ETS with more concessions in desperate hopes of vote buying. Had he the guts to go DD, he would have pushed the button by now. Turnbull has sat himself down uncomfortably between two stools.

    If any of these guys believed there was a genuine threat from global warming, they would have negotiated with the Greens and delivered a plain and simple carbon tax. ETS is the action you take when you want to pretend to be doing something but actually just waste a lot of money in paper shuffling exercises and hidden taxes.

    Personally, the closer I look at the AGW science, the less it looks like anything I would recognise as science, but I don’t expect everyone to come to the same conclusion as myself. I do expect people to act out of integrity based on a genuine study of the available facts (and sadly, even when the private emails of Phil Jones et al are now on public display, the raw data collected and whatever real science is behind that data still remains secret so no independent scrutineers can ever fully reproduce the current AGW results).

  5. If the Libs decide to send the CPRS Bills or even just the new amendments to a Committee, or to otherwise defer a final vote until when the Senate resumes in February, I think Kevin Rudd has sufficient grounds to request/advise the Governor-General to call a double dissolution election. (He may well not wish to do so, but that’s a matter of his political judgement, not whether he has sufficient Constitutional grounds).

    It is quite possible that after such an election, if the CPRS Bills were subsequently passed at a joint sitting, the High Court would rule that the grounds of “failure to pass” had not been met. (assuming someone legally challenged the validity of the joint sitting, which I think in the circumstances would be a certainty). But this would negate the legislation, not the election – so the Coalition wipeout which would likely have happened at such an election would stand. Given that there are Regulations related to the CPRS which would still be at risk of being disallowed by a post- (or pre-)election Senate, I don’t think the risk of the High Court invalidating legislation passed at a joint sitting would be that much of a concern to Mr Rudd.

    As for the query about how long the Senate might sit for next week, basically that’s in the hands of the Senate. At the moment, everything – including the sitting last Friday – is technically just an extension of the final scheduled sitting day (which was last Thursday), as the Senate is just continuing its sittings from that day until its proceedings are formally adjourned. At the moment, it ends each day by suspending rather than adjourning. It will continue on until a motion that the Senate adjourns at a specific time (i.e. either immediately or at a pre-determined time) is passed. This requires a majority vote. Assuming none of Greens,Xenophon, Nationals or Fielding vote for an adjournment (or a guillotining of debate), the government would need 7 Libs (out of 32)to force either an adjournment or a guillotine.

  6. Ken Parish says:

    Many thanks for that information Antony. That was a point I should have known but didn’t. No doubt the fact that only an early reps election is an option for the moment, and that that wouldn’t solve the Senate problem with the ETS bill, is the reason why Rudd was again shown on tonight’s news professing every intention to go the full term. It looks like it’s only assorted minions making DD noises, very likely as an empty threat.

    In fact Antony’s information helps to clarify just why even quite a few Liberals who AREN’T climate change deniers are now deserting the Turnbull ship. Malcolm’s political judgment looks to be radically flawed. There was probably never a real risk of Rudd pulling an early DD election, and there’s in fact little or no objective reason to finalise an ETS law before Copenhagen, except to allow Rudd to strut the international stage as a western leader who has already “delivered the goods” on climate change, albeit fairly shoddy and half-baked goods. Obama hasn’t made any real attempt to get ETS legislation through the US legislature, contenting himself with announcing his intention to proceed with a revised (similar to Australia) model in due course. If legally or even practically binding targets and programmes emerge from Copenhagen that will be time enough to tweak and finalise Australia’s legislation early next year. Turnbull, courageous, principled and admirable though his stand may be, has fallen for Rudd’s poker bluff (to adopt Tel’s preferred metaphor – although Tel then proceeds to scramble the metaphor to an extent that leaves even this proud metaphor-mangler gasping with awe-struck admiration).

    Andrew

    Yes, the points you make are made in the passage from Walker’s article extracted in my primary post. The point I make from that is: would Rudd be likely to force a double dissolution when all he would get out if it is an ETS/CPRS Act that is likely to be declared invalid anyway, and a more hostile than necessary Senate for the next 3-6 years? I suspect the answer is no, but we’ll soon see. BTW Thanks for the information about the Senate sitting situation.

  7. Ken

    If Rudd called an (early) double dissolution election, it would predominatly be based on a view that the chance of having a valid excuse to go early so he could grab a big swag of extra Lib House of Reps while they were in such total disarray was too big to resist, even if it meant risking missing out on getting his weak CPRS adopted.

    The Senate makeup would be a minor consideration (although I think it looks vyer probabyl that the Greens will get sole balance of power after either a half or a full Senate election). A random potentially oddball independent or two from a D-D doesn’t matter much if they can’t influence balance of power – although if the Nats decide to adopt a permanent semi-Barnaby mindset going forward, then the balance of power will be a very dynamic thing in any case.

  8. Ken Parish says:

    Andrew

    You might be right, and moreover a fractured post-election Liberal Party might well also contain some Barnaby-style Senate renegades making the balance of power situation fascinating and unpredictable.

    Certainly Antony Green’s figures suggest that Labor could get legislation through the Senate with Greens support only after either a double dissolution or half-Senate election. However, after a half-Senate election there’s at least some chance of an alternative majority involving cobbling together a majority of Independents and Coalition renegades. I’m assuming here that Rudd is innately quite conservative and not likely willingly to embrace purist Greens recipes on lots of issues that would force him to forfeit the middle ground and move to the left to an extent that would give the Coalition a big chance in the next term of Parliament. If the Coalition is sufficiently fractured/disunited, then the prospect of cobbling together a polyglot Senate majority for legislation well to the right of anything the Greens will ever support would also exist in a post-DD Parliament, but achieving a majority in any given situation would be a bigger ask after a double dissolution than after a half-Senate election.

    Nevertheless, as you seem to be suggesting, if Rudd judges that current Coalition chaos makes it expedient to seize the electoral day now (or rather fairly early in the New Year) and call a DD to maximise his prospects of a strong Reps majority despite the less than optimal Senate outcome, he might yet bet the farm. Somehow, however, I think he’s more likely to adopt the Keating strategy of doing the Coalition slowly. Current economic conditions seem to have reduced the impetus for Rudd to go early before a “horror” budget next May, because that prospect no longer exists (or at least can be plausibly deferred/denied). It may depend on who ends up being elected Liberal leader on Tuesday. If Turnbull survives that presumably means that the ETS will get through anyway. If it’s Hockey, then with any sort of luck Liberal minders will be able to restrain him from putting both feet in his mouth at the same time, which might increase the temptation for Rudd to pull the DD trigger to reduce Hockey’s available time to retrieve some ground. OTO with the Mad Monk in the chair I reckon the “do them slowly” strategy would certainly be the way to go.

  9. Pingback: skepticlawyer » Interesting times

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