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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/).