Reading the tea-leaves on a double dissolution

ABC political analyst Antony Green is predicting that Kevin Rudd will seek a double dissolution election in July-August.  A double dissolution election can’t be held after 10 August because Constitution s57 forbids a double dissolution within 6 months of the expiry of the House of Representatives’ term “by effluxion of time” and that expiry occurs on 10 February 2011.

Antony Green presents a superficially plausible scenario for the reasons he outlines.  In fact so superficially plausible that I got Antony to present an online seminar on the subject to CDU law students and academic staff a couple of weeks ago.  It was a useful way of teaching about the constitutional aspects of the deadlock and double dissolution provisions of Australia’s Constitution in an immediate practical context, and we’re grateful for Antony’s willing participation.  There isn’t much he doesn’t know about elections including their legal and constitutional dimensions.

However, the more I think about the practicalities the more I doubt that Rudd will choose the double dissolution option.  The only double dissolution “triggers” Rudd currently possesses are the package of Emissions Trading Scheme bills rejected for a second time last December in the wake of  Malcolm Turnbull’s demise and the bill to cut private health insurance rebate benefits to high income earners.  The latter not only involves increasing taxes (albeit only to high income earners) but a broken election promise.  Rudd specifically promised not to do this at the 2007 election.  Hardly a propitious launching platform for an election.

Presenting the ETS bills as the trigger for a double dissolution election presents even greater political dangers.  A double dissolution election would certainly breathe new life into Tony Abbott’s “Great Big New Tax” propaganda line.  Abbott managed to neutralise that potentially powerful message by proposing his own “Great Big New Tax” to fund paid maternity leave.  However a double dissolution would allow him to claim truthfully that the result of returning the Rudd government might well be that the ETS legislation would be passed in a parliamentary joint sitting, thereby actually inflicting the Great Big New Tax that the Coalition and Greens have so far managed to stymie in the Senate.

Moreover,  Rudd would be stuck with enacting the original ETS package without the various sweeteners Penny Wong agreed with the Coalition under Turnbull.  The absence of those sweeteners would guarantee significant business opposition.  Constitution s57 requires that the bill passed a second time by the House of Representatives must be identical to the one previously rejected by the Senate, except for any amendments made by the Senate itself the first time the bill was proposed. The House of Representatives cannot amend it in any way. See Western Australia v Commonwealth (Territorial Senators case) (1975) 134 CLR 201, 237.  The amendments agreed to by the Rudd government after negotiation with the Turnbull team were not ones made by the Senate.

Finally, the political risk of calling a double dissolution in July-August with the ETS bills as a trigger is heightened by the fact that it would coincide with the run-up to the next round of  international climate change negotiations in Cancun, Mexico in December.  Rudd is currently succeeding in keeping climate change and his ETS bills off the media radar but there’s no way he could sustain that in the context of a July-August election called on the pretext of the Senate’s obstruction of those ETS bills  The non-binding face-saving resolution passed at Copenhagen last December urges all nations to present emissions targets to which they are willing to legally commit to the UN Climate Change Conference working group in the lead-up to the Cancun conference.  You can just about guarantee that China, India and most of the third world will again fail to agree to any meaningful binding targets.  Consequently Rudd would be conducting a double dissolution election for which the trigger was the Senate’s obstruction of his “Great Big New Tax” ETS bills in an environment where the utter futility (and arguably counter-productive consequences) of those bills at least in the short term will simultaneously be playing out in high profile on the world stage. Somehow I can’t see Rudd making such a choice.

The only even vaguely plausible scenario for a double dissolution election would be if Rudd were to recall parliament early for the Budget session in the wake of the States’ failure to agree his hospitals/health plan, in order to propose a referendum bill to give him power to enact the health plan.  Parliament would have to be recalled before the currently scheduled date of 11 May to avoid running foul of the 10 August cut-off date for a double dissolution imposed by Constitution s57.  If the Senate twice rejected the referendum bill with a three months minimum gap before 10 August, then a double dissolution election could immediately be called and the focus would overwhelmingly be on Rudd the courageous health care reformer bravely fighting the obstructionist States and Senate (rather than on the ETS bills).

However, that could only occur if Abbott and the Coalition were stupid enough to oppose a hospitals plan referendum bill.  He would be far more likely to have the Coalition vote in favour of the referendum bill, thereby letting the people decide, but then join at least some of the States in urging a “No” vote in the referendum itself.

Rudd would then move for an ordinary House of Reps and half Senate election with his hospital plan as the central issue.  Moreover, even if the referendum failed (as it almost certainly would), a second term Rudd government would face a Senate in which the Greens held a clear balance of power position,((The Greens will almost certainly hold the balance of power whether after an ordinary half-Senate election or a double dissolution, but the latter creates a slightly higher probability of one or two extra Independent Senators who might conceivably be just as difficult and unpredictable to deal with as Fielding ~ KP))  allowing Rudd to negotiate with them without also needing to run the gauntlet of ratbag Independent Senators like Steve Fielding and Nick Xenophon.  Rudd would almost certainly be able to do a deal with the Greens to let some version of his hospitals plan through the Senate, probably with some sweeteners to give the States additional real funding increases before 2014.