We’re in an election year and so we’re at that stage where we’re all asking “Will he? Won’t he?” and almost pleading “when will it be?!”

The Prime Minister has choices for election timing and the Constitution provides the basis for this.

Although the terms in the Senate are fixed for six years (Section 13), the terms within the House of Representatives is flexible, being a maximum of three years after the first sitting day (Section 28).

The problem with half the Parliament being fixed and the other half being flexible is that sometimes the terms can be out of sync. For instance, the most recently elected Senators still have just over four years left of their six year term and the other half of the Senators terms expire on 30 June 2017.

What this means is that if the Prime Minister calls a normal election, he will still have the exact same Senate until the middle of next year. And the reportedly unmanageable crossbench were mostly elected at the last election and will remain in the Senate until 2020.

The earliest that the Prime Minister can hold a normal election of half the Senate and the House of Representatives is 6 August. While the latest a normal election can be held is 14 January 2017.

There is plenty of speculation out there about the best dates for a normal election and even the Prime Minister has said August, September, October.

What about a double dissolution?

The other choice the Prime Minister has is to hold a double dissolution election. But as the Prime Minister himself stated on ABCTV’s Insiders (fast forward the video to 9.54) double dissolutions are serious constitutional business:

It is open to us to go to a double dissolution, not as a tactical measure. If we go to a double dissolution it will be in order to use deadlock breaking provision of the constitution because the Senate has blocked important elements of legislation.

He then goes on to very clearly explain section 57 of the Constitution and how it applies.

Section 57

The people that wrote our Constitution had witnessed systems of Government in other parts of the world that did not have a deadlock breaking mechanism for disagreements between the houses of government. Notably, one of these is the US and you might recall that in recent years there have been deadlocks between the two Houses of Congress that resulted in the US government not being able to pay their employees.

To avoid this sort of thing, the writers of our Constitution wanted a mechanism that would be able to be used by the parliament if the lower house wanted a bill passed and the upper house wouldn’t pass it. As such they wrote section 57.

For a double dissolution to occur there has to be a trigger, which is a bill that has been twice presented to the House without any amendments and twice rejected by the Senate, with a minimum three months between the attempts to pass the bill. The Prime Minister must then make a request to the Governor-General to dissolve both Houses of Parliament.

A double dissolving of Parliament means that the whole Senate is up for election, rather than the normal half Senate. Once the new Members and Senators take their places in the Parliament, a joint sitting of the Parliament may be convened to pass the trigger bills.

There are also a couple of other important points. One of these is that section 57 also stipulates that a double dissolution cannot take place within six months before end of the term of the House. The House expiry date is three years after the first meeting of the House which for this Parliament was 12 November 2013. This is why the final date that a double dissolution can be called is 11 May 2016.

The other thing is that after a double dissolution election the new Senate’s term is backdated to 1 July. This means that if the Prime Minister does call a double dissolution and hold the election before 1 July 2016 half of the Senate will be up for re-election in two years. This would require that there be just a half Senate election on its own in 2018 or very early House election and normal half Senate election at that time. Therefore commenters are speculating that a double dissolution would be held on 2 July, even though this date means that there would be a very long election campaign. The official campaign would be just over seven weeks, from 11 May to 2 July 2016 (although with all this speculation you might say the campaign has already started).

Triggers

There are currently two official trigger bills available to the Government to request a double dissolution. These are:

• Clean Energy Finance Corporation (Abolition) Bill 
• Fair Work (Registered Organisations) Amendment Bill

Since the change of Prime Minister, these two trigger are not really core policy anymore. However there are quite a lot of bills that are potential triggers and the one that has been mentioned, by the Prime Minster in that Insiders video and by many commenters, is the Building and Construction Industry (Improving Productivity) Bill 2013.

This bill is attempting to re-introduce the Australian Building and Construction Commissioner (ABC Commissioner) and has been voted upon in the House twice and the Senate once. It has been reintroduced to the Senate and was then referred to a committee for further examination.

Some constitutional experts have stated that this bill has gone far enough to be considered a trigger bill and that the Senate attempting to prevent a vote on the bill is the same as a failed vote by Senators. Other experts disagree.

Currently there are only three sitting days left before the Parliament rises until budget day and these days have been set aside for the Senate voting reform legislation to pass the Senate, rather that the ABCC Bill.  

Moving the budget forward

The budget is scheduled to be on the second Tuesday of May each year. However this year the timing of the budget could be problematic for a double dissolution election because of the Constitutional process for Government spending.

The Government holds a bit pot of money called the Consolidated Revenue Fund, but they can’t spend any of it without passing Appropriation Bills. These Appropriation Bills are introduced on budget night and are passed by the end of June each year. They appropriate money for the next financial year.

The second Tuesday of May this year is the 10^th, just one day before the final date that a double dissolution can be called. This would mean that the Government would have to attempt to pass its appropriation bills on the evening of the 10^th and some of the 11^th of May before the PM raced off to the Governor-General to request a double dissolution. If the bills were not passed, this could cause problems for a 2 July 2016 election, as money would not have been appropriated for this financial year.

This is why there is speculation that the budget will be moved forward a week. It would give the government a few more days to pass the appropriation bills and possibly attempt to get the ABCC bill to a vote in the Senate, giving themselves another trigger.

Senate voting reform

As we’ve outlined in this article, the government will need to line a lot of ducks up in a row before they can call a double dissolution. Another one of these is the Senate Voting Reform Legislation.

It’s been reported that the Greens have made an agreement with the Government to reform the Senate voting method. It has also been reported that this will make it harder for minor party and independent candidates to be elected to the Senate in the future. However, if the Greens pull out of this purported agreement, then a double dissolution could result in an even larger crossbench in the Senate. At a normal election of six Senators, each quota for a seat is 14.3 % of the vote, at a double dissolution this number is halved. At the last election 32.2% of people voted for someone either than the Coalition or Labor in the Senate. You can check out our article from last week about Senate voting reform to get a better understanding of this situation.

It’s all very complex

The old saying is that a government will go to an election when they think they can win it. A double dissolution might look attractive and it is a possibility, but there is a lot of things that the current Australian Government needs to consider and implement before this can happen. As usual we’ll keep an eye on this topic and keep you updated and please let us know your thoughts in the comments section below.

You might also want to have a look at some other relevant articles we have written:

• The Constitutional process for Government spending
• Should the Government hold a double dissolution election to remove a troublesome Senate?
• Don’t vote [insert minor party here*], it’s a wasted vote
• An update: Senate voting reform

Image attributed to Knowledge Society

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