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September 2013

Before the election, Tony Abbott ruled out negotiating with independents or minor parties if he didn’t achieve a majority in the lower House. But the pain Gillard experienced in bargaining for the votes of three independents in the House of Representatives is likely to be magnified for Abbott in getting six or more votes from a motley crew of micro-parties in the Senate. Is there another path? Abbott previously threatened to call a double dissolution if his legislation was blocked in the Senate. How feasible and likely is this?

The composition of the Senate

While the House of Representatives is dissolved at every general election, the Senate is a continuing House with fixed terms. Apart from the four Territory Senators, whose terms are tied to the House of Representatives, the Senators elected by each State have a term of six years with half being elected every three years. The Senate itself is not ordinarily dissolved – it just keeps operating with a change to its membership.

The candidates who were elected to the Senate at the 7 September 2013 election (except for the Territory Senators), will therefore not take up their seats until after the terms of half the current Senators run out on 30 June 2014. That means that the Abbott Government will confront a Senate where the Greens hold the balance of power until 30 June 2014, followed by a Senate where micro parties hold the balance of power for the next three years.

Double dissolution

The only exception is if a double dissolution is held. This means that both the Senate and the House of Representatives are dissolved. The consequence is that all the Senate seats become vacant and are immediately filled in the election. Twelve Senators are elected for each State, rather than six. The Senate then divides the Senators into two groups – those who get a six year term (who are usually those with the highest vote, but this is determined by a resolution of the new Senate) and those who get a three year term. The old Senate is terminated and replaced by a newly elected and constituted Senate.

Double dissolutions are relatively rare. They have taken place in 1914, 1951, 1974, 1975, 1983 and 1987. There is a special constitutional procedure that must be met before a double dissolution can be held. A Bill (or Bills) must be initiated in the House of Representatives and then blocked in the Senate (either by being rejected, failing to pass or passing with amendments that the House will not accept). A period of three months must then pass. Then the House must pass it again and the Senate block it. Only once the Government has such a trigger can a Prime Minister advise the Governor-General to grant a double dissolution. Double dissolution triggers may be ‘stock-piled’, but a double dissolution cannot be held in the six months before the House of Representatives expires.

There is also an issue about the extent to which the Governor-General has a discretion in granting a double dissolution. On previous occasions, such as 1914 and 1951, the view was taken by the Governor-General that he did have a discretion. In 1914 the Governor-General sought advice from the Chief Justice of the High Court on the extent of his powers to help him decide. In 1951, Labor Members of Parliament argued that the Governor-General should take advice from the Chief Justice, Sir John Latham, although it appears that he made his decision without such advice. Certainly in 1983, the Governor-General, Sir Ninian Stephen did not regard the Prime Minister’s advice as sufficient and sent him back to provide further advice about the importance of the blocked bills and the workability of Parliament. He stated in his letter to Prime Minister Fraser on 8 February 1983:

Such precedents as exist, together with the writings on section 57 of the Constitution, suggest that in circumstances such as the present, I should, in considering your advice, pay regard to the importance of the measures in question and to the workability of Parliament.

It might prove difficult to characterise the Parliament as unworkable if there had only been one rejection of a Bill and the Parliament had only been in operation a short time. It could prove even more difficult if the composition of the Senate was about to change.

Could a double dissolution be held before the Senate’s composition changes on 1 July?

Holding a double dissolution before 1 July faces two potential hurdles. First, there is a timing problem. The Senate is perfectly entitled to scrutinise bills, including sending them off to committees for public hearings and the receipt of expert advice. Once this is combined with the three month delay between bills, the process can become quite drawn out.

The Government would run a great risk in simply categorising a bill as having ‘failed to pass’ the Senate, just because the Senate took time to scrutinise it. The Whitlam Government tried this in 1974 but the High Court later held that one of its bills was not a valid double dissolution trigger because the Senate had not been given adequate time to scrutinise it. Fortunately for Whitlam, he had plenty of other triggers to rely upon. If an Abbott Government was relying on a single double dissolution trigger, it would have to be very careful indeed.

Secondly, there is a constitutional question as to whether a double dissolution could be held before the 1 July changeover, given that new Senators have already been elected. It could be argued that a double dissolution is intended to resolve a deadlock between the Houses, but once the Senate’s composition changes on 1 July, such a deadlock might no longer exist. The Governor-General might contend that to decide upon the workability of Parliament, she would need advice from the Prime Minister on the workability of Parliament under the changed composition of the Senate after 1 July 2014. Further, people who had been elected as Senators, to commence office on 1 July 2014, might contend that their election could not be wiped out in this manner.

On the other hand, it could be argued that while s 57 of the Constitution expressly prevents the holding of a double dissolution in the last six months before the House of Representatives expires, it does not expressly prevent the holding of a double dissolution immediately before the Senate's composition is changed on 1 July. It could also be argued that the candidates elected in the half-Senate election in September 2013 were elected to fill future vacancies in a continuing House. However, a double dissolution would completely dissolve that House, rendering their election of no effect. The Senate to which they had been elected would no longer exist and they would therefore have no entitlement to take up that office on 1 July 2014.

Timing problems

A double dissolution held before 1 July 2014 would also give rise to timing problems in relation to subsequent elections. Section 13 of the Constitution provides that after a double dissolution, the terms of Senators are dated back to the previous 1 July (i.e. 1 July 2013). The consequence would be that the next half-Senate election would have to be held some time in the 12 months before 30 June 2016. Assuming that an Abbott Government won a further term in office at a double dissolution held in, say, April 2014, it would need to go to the polls again in two years, if it were to hold the next half-Senate election with a general election. Alternatively, it would have to face a separate half-Senate election after being in office for two years, which like a by-election would probably result in some anti-government expressions of voter discontent. Neither outcome is terribly good for a Coalition Government.

Would a double dissolution improve the Coalition's position in the Senate?

The main reason why it is unlikely that a double dissolution would be held is that it would be likely to make it even harder for the Coalition to negotiate bills through the Senate. Because 12 Senators would be elected in a State, rather than six, the quota for winning a seat would be lower. This makes it much easier for micro parties and independents to win seats. It is also more difficult for a major party to win six out of twelve Senate seats in a State than it is to win three out of six. Given the high vote for micro parties at this half-Senate election, the likely outcome of a double dissolution in the next 6 months would be to increase the number of cross-benchers holding the balance of power in the Senate, which would not be likely to be to the Coalition’s benefit.

The only likelihood of a double dissolution would be if the major parties got together and agreed to change the electoral laws in such a way as to limit the ability of micro parties to be elected to the Senate. This could be done by increasing the threshold quota for election, increasing the deposit paid by candidates and increasing requirements for party membership before a party can get on the ballot. They might also consider the approach that NSW took after the infamous ‘table-cloth ballot paper’ of 1999, which was to move to optional preferential above-the-line voting, so that voters can still vote above the line but can control their preference flows, rather than having the gaming of upper house seats by micro parties.

Finally, there is the issue of sending voters back to the polls so soon after an election. There is likely to be a backlash from the public if they feel that they are being forced to put up with another long election campaign simply because the government feels that they got it wrong. Many will have deliberately voted against the Coalition in the Senate because they didn’t support many of their policies and wanted the Coalition to be forced to negotiate and compromise. They might be none too thrilled to be told to go back and vote again.

[This blog-post is an extended version of an opinion piece published in The Australian on 11 September 2013.]

SUGGESTED CITATION: Anne Twomey, 'From Simple Disillusion to Double Dissolution' Constitutional Critique, 12 September 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

Following is a new post by CRU Associate AMANDA SAPIENZA adding to her previous blog post on proposed policies to limit access of asylum seekers to judicial review:

Further to my recent post about the Coalition’s asylum seeker policy, much has been made in other commentary on the policy about the futility of any legislative attempt to restrict the High Court’s jurisdiction to conduct judicial review of immigration decisions. However, little has been said about the constitutionality of restricting or removing the Federal Court’s asylum-seeker judicial review jurisdiction. The assumption is that, with s 77(i) of the Constitution conferring power on the Commonwealth Parliament to make laws defining a federal court’s jurisdiction, what the Parliament giveth the Parliament may take away.

But a follower of this blog, Jim South, has reminded us that the High Court has previously hinted that this assumption may not be correct. He referred us to MZXOT v Minister for Immigration and Citizenship (2008), in which a majority of the High Court suggested that it would look closely at any future attempts to limit the jurisdiction of the Federal Court where the consequences would be such an increase in the trial load of the High Court that its capacity to carry out its appellate and constitutional functions would be severely impaired. Chief Justice Gleeson and Justices Gummow and Hayne said the following at [36]-[37] (references omitted):

The Commonwealth Solicitor-General ... contended that there was no restraint upon the power of the Parliament to enact a repeal of [measures conferring jurisdiction over federal matters on other courts] and thereby burden exclusively the High Court with the full weight of original jurisdiction in federal matters. Such a state of affairs would, among other things, stultify the exercise of the appellate jurisdiction which is entrenched by s 73 of the Constitution. It would undermine the operation of Ch III which places this Court (subject to the obsolete provisions in s 74) at the apex of the judicial structure.
It is well recognised in the decisions of the Court that the powers of the Parliament conferred by the various heads of power conferred by the Constitution are not to be interpreted on the footing that the ends sought to be achieved by their exercise must appear desirable rather than absurd or inconvenient. But a law, apparently based upon s 77(iii), which repealed [measures conferring federal jurisdiction on State courts and other federal courts] would appear to strike at the effective exercise of the judicial power of the Commonwealth which is vested directly in the High Court by s 71 of the Constitution. Nor would it necessarily be decisive in this situation to invoke the principle that the legislative powers conferred by s 51 extend to the repeal of the whole or part of that which has been enacted; the legislative powers conferred within Ch III may require special consideration [emphasis added]. It is sufficient to conclude now that the submission put for the Commonwealth can hardly be said to be self-evidently correct.

These comments were made in the context of a submission that the High Court had an implied power of remittal to other courts based on the need to protect its ability to exercise its constitutional and appellate functions. The Court unanimously decided that the facts of the case did not warrant the implication of such a power. Justices Heydon, Crennan and Kiefel held that there was no such power but, as can be seen from the comments reproduced above, Gleeson CJ, Gummow and Hayne JJ indicated a willingness to explore the need for such an implication in an appropriate case. Justice Kirby was also very sympathetic to the argument. However, the four justices agreed that the legislative scheme in question in MZXOT did not place such a burden on the Court that the Court’s ability to sufficiently discharge its other functions was impaired (see [53] and [59]) and that therefore a remittal power was not a necessary implication.

So we have a majority of the High Court leaving open the possibility that an attempt to remove jurisdiction from a court with federal jurisdiction could be unconstitutional if the effect would be to burden the High Court with that jurisdiction and thereby impair the High Court’s capacity to exercise its appellate and constitutional functions. Put another way, there is a suggestion of an implied limitation on the power of the Parliament to significantly reduce the jurisdiction of federal courts.

A number of issues arise if the High Court intends to go down the road of implying such a limitation. First, who is to say that the appellate and constitutional functions of the High Court are the most important and therefore to be protected at the expense of other federal matters? Justice McHugh, in his tirade against the Parliament in Durairajasingham (2000) (at [8]-[15]), used parliamentary debates and secondary sources to support his conclusion that the intention behind the creation of the Federal Court was to free the High Court to focus on its appellate and constitutional functions. In MZXOT, Gleeson CJ, Gummow and Hayne JJ at [34] cited this passage of Durairajasingham in support of their view that the ‘major functions’ of the High Court are its constitutional and appellate ones. But there is nothing in the Constitution itself to suggest that this is so, at least in relation to the Court’s jurisdiction over matters arising under the Constitution or involving its interpretation. While the Court’s appellate functions are not constitutionally capable of being conferred on another court (giving some textual support for its perceived importance), its constitutional functions are so capable (see s 77(i) read with s 76(i)). Further, the constitutional functions are but one of four matters upon which the Constitution permits jurisdiction to be conferred on the High Court. Indeed, the framers of the Constitution did not even see fit to entrench the High Court’s jurisdiction over constitutional matters by including it in s 75. Rather, they listed it in s 76 and left it to Parliament to confer that jurisdiction on the High Court as it sees fit.

Secondly, where lies the limit of work that is neither constitutional nor appellate that the High Court can undertake and how will the judges decide that the limit has been breached? Obviously a conversation between the justices (or even four of them) around the Parkes Place water-cooler in which they agree that their trial load is too high will not suffice. A more rigorous, evidentiary approach will be required. In Abebe v Commonwealth (1999), Gleeson CJ and McHugh J at [50] predicted that the effect of the restriction of the Federal Court’s jurisdiction on the business of the High Court was certain to be serious. To confirm the accuracy of this prediction, McHugh J at note 2 of Durairajasingham referred to the number of applications pending in the Court for prerogative relief that arose under the Migration Act compared to the total number of pending applications for prerogative relief. In MZXOT, Kirby J noted that the evidence presented and ‘knowledge available by judicial notice’ contradicted the presence of the extreme circumstances that would be required for him to find that an implied constitutional power of remittal existed ([134]-[137]). The High Court will need to consider matters such as the number of applications pending in each kind of proceeding and the time spent sitting and writing on each. Still then there will be the need to undertake the unenviable, and ultimately impressionistic, task of deciding where the line is drawn between trial work consuming much of its resources and trial work preventing the effective discharge of its ‘major functions’.

Taking this volumetric approach to the question means that, to have good prospects of success in arguing that some constitutional limit has been breached, an applicant will have to wait before instituting proceedings to see what was the impact on the High Court’s workload of the removal of the Federal Court’s jurisdiction. Should the constitutionality of a legislative measure depend not on the measure itself but on its consequences? Particularly where those consequences may not be clear for several years?

Of the justices who left open the possibility of a constitutional impediment to restricting the Federal Court’s judicial review jurisdiction in MZXOT, only Hayne J remains on the Court. Justices Crennan and Kiefel also remain on the Court. Their Honours, with Heydon J, made the point at [203] of MZXOT that in Abebe a majority of the High Court upheld provisions that ultimately resulted in a significant increase in the number of proceedings instituted in the High Court pursuant to its original jurisdiction to conduct judicial review in s 75(v). Their Honours noted that the majority did so without seeing anything in ss 75-77 of the Constitution that prevented Parliament from severely restricting the jurisdiction of the Federal Court to review refugee decisions.

So one cannot predict with certainty how the current High Court might decide an argument that the Constitution prohibits stripping the Federal Court of its asylum-seeker judicial review jurisdiction and foisting it on the High Court. But the comments of Gleeson CJ, Gummow and Hayne JJ and Kirby J in MZXOT suggest that the High Court won’t take any increase in its trial load lying down.


SUGGESTED CITATION: Amanda Sapienza, 'Who Needs a Union? A Constitutional Argument for Controlling the High Court's Workload', Constitutional Critique, 2 September 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).