W INSTON Churchill thought political loyalty was an enormous virtue. The leader must be supported and the leader must support the front bench. But only up to a point.
“If a leader trips, he must be sustained,” Churchill wrote. “If he makes mistakes, they must be covered. If he sleeps, he must not be wantonly disturbed. If he is no good, he must be pole-axed.”
In the ensuing half-century it has become a political death sentence as certain as making a “courageous decision” to have one’s leaders say – as Malcolm Turnbull said of Julie Bishop – “Julie Bishop has my total confidence both as the deputy leader and shadow treasurer.”
The pole-axing took just two days.
The media loved it. Leadership, frontbench shuffles and early elections are the lifeblood of the vampires of the political media. Disquiet confined to the partyroom requires the oxygenating catalyst of media speculation before political blood is spilt.
Early-election fever almost inevitably follows. Several political commentators made noises about the possibility of an early election or a double dissolution to enable the Government to capitalise on the Opposition’s woes. But leadership is pure politics. Early elections require a combination of politics and constitutional law.
I am sorry to disappoint political journalists champing at the bit, but the constitutional arithmetic simply does not add up to an early election.
Australia is not like Britain where the Prime Minister can call an election anytime. Nor is it like the US where elections are fixed for the first Tuesday after the first Monday in November every two years for Congress and every four years for the presidency.
Australia has a hybrid system which puts actual and practical constraints on election timing.
The Prime Minister can advise the Governor-General to call an election for the House of Representatives any time. But the timing of Senate elections is restricted and the terms for senators are fixed. This has a profound influence on election timing.
No doubt Prime Minister Kevin Rudd would dearly love and election now with the Opposition frontbench newly ruffled and Peter Costello hovering like Banquo’s ghost as a reminder to the Liberal Party of its sin in not removing Howard for new blood while it had the chance.
Rudd could justify with pious words about the need to seek a new mandate in the face of the world economic downturn. It would disrupt the obvious Costello timetable of reappearing as a political saviour to the Liberal Party after the next election and economic saviour to the nation in the election after that. He is not a spent force by any means.
But the Constitution makes it well nigh impossible. The next election will most likely be in the standard three year cycle in late 2010. Costello will be ready to take the leadership after that and run in the 2013 election, when he will be 56 years old – the same age as John Howard was when he was elected in 1996 with 11 years of prime ministership ahead of him.
So what are the constitutional impediments to an early election or double dissolution?
Let’s take the double dissolution first. It’s a bit tricky but let me explain the effect of the constitutional provisions. In ordinary half Senate elections, the senators’ terms start on the first day of July AFTER the election. However, in the case of a double dissolution, the senators will be deemed to have taken their seats on the first day of July PRECEDING the election. Further, the Constitution provides that senators must be elected some time in the 12 months preceding the expiry of their term.
It would mean that, if you were to have a normal Senate and House of Representatives election at the same time, the House of Representatives election following the double dissolution would have to be shy of the full three-year term by as many months as the double dissolution was after June 30.
For example, a May 2009 double dissolution (11 months after June 30) would elect senators with terms deemed to have begun on 1 July 2008 and require the following election to be held before 30 June 2011 (11 months shy of the natural three-year term to May 2012).
In the 28 April 1951 double dissolution Robert Menzies lost 10 months from his next term.
Any Prime Minister who calls a double dissolution cheats himself of a full three-year term in the subsequent term. The price is not worth it, even presuming the Government can get the Senate to twice reject legislation to cause the necessary trigger.
What about an early House of Representatives election? Technically it is possible, but you cannot have a half-Senate election at the same time until after 30 June 2010 so it falls, as the Constitution requires, in the 12 months before their terms expire on 30 June 2011.
If it is after 30 June 2010, it is hardly an early election, especially as governments do not like winter elections and would wait the extra few months for the ordinary term to end in later 2010.
There would be no point in an election before 30 June 2010 because the “obstructionist” wold remain in place. Worse, it would require a half Senate election between 30 June 2010 and 30 June 2011 – either on its own or with yet another Reps election only a year and a bit after the previous one. Either is a recipe for electoral backlash.
This is not Britain where Margaret Thatcher charioted into a very early election after the Falklands victory. Nor is it the US where George Bush senior had to sit helplessly watching his 90 per cent approval rating erode after the first Gulf War to an election-losing disapproval come the fixed election day in November.
Forget an early election. If anything it can be late because the three-year term runs, not from the date of the previous election, 24 November 2007, but from the time the Parliament first sate after that election – 12 February 2008 – plus some time for writs and the campaign.
That’s plenty of time for frontbench shuffles and more leadership speculation while Costello waits, and waits and waits.
Last Saturday in this newspaper, columnist Crispin Hull wrote an opinion piece titled ”Electoral sums just don’t add up to an early election”.
The constitutional information in the article is all correct and has been well known for a long time, for 100 years actually.
Lack of space prevents me from defining the term ”early election”. However, I would say an election this year before October is totally out of the question. But it is entirely plausible to imagine a double dissolution occurring in November and a general election for all members of both houses being held on, say, Saturday, December 5.
In the period up to October there are two reasons why a federal election is out of the question.
First, there is the lack of a trigger for a double dissolution.
Second, redistributions are now occurring designed to reduce NSW from having 49 seats in the House of Representatives to 48 while increasing Queensland’s representation from 29 to 30.
In any election before this process is completed, recourse would need to be made to a provision in the Electoral Act designed to be used only in a real emergency.
In NSW the two adjoining divisions with the lowest enrolments are Throsby and Gilmore on the South Coast. In any election held before the redistribution process were complete, these two would be amalgamated. So the reduction from 49 to 48 would be accomplished by having a Gilmore-Throsby division.
In Queensland the two adjoining divisions with the highest enrolments are Fadden and Moncrieff on the Gold Coast. In any election held before the redistribution process were complete these two would be amalgamated, then divided into three. So in the next Parliament there would be members for Fadden, Moncrieff and Fadden-Moncrieff.
Gilmore-Throsby’s enrolment would be, by far, the biggest in Australia, while the three Queensland seats would have the lowest enrolments.
While such provisions are sensible in an emergency (and would achieve the needed increase or reduction, as the case may be) it is inconceivable they would be used in any election this year.
Getting a trigger for a double dissolution would be easy for the Rudd Government. The emissions trading legislation could be introduced into the House of Representatives and face rejection in the Senate. Then after the three months’ wait required by section 57 the whole process could be gone through again. So it is quite conceivable that there will be a double dissolution trigger come November, by which time the NSW and Queensland redistributions would have been completed.
Since Climate Change and Water Minister Penny Wong is a senator, the normal procedure would be for the emissions trading legislation to be introduced into the Senate.
If that is the case, then we would all know that the Rudd Government is not interested in using section 57 of the Constitution.
That section can be used only in respect of a bill originating in the House of Representatives.
Hull’s argument rests essentially on the fact that a double dissolution election can throw the elections for the two houses out of kilter.
That is correct, but consider my case in which such an election is held this December. The next election could easily be held in May 2012.
There was a double dissolution election in September 1914 and the next election (for the House of Representatives and half the Senate) was held in May 1917.
There was a double dissolution election in December 1975. The next election (for the House of Representatives and half the Senate) was held in December 1977 but could easily have been held in May 1978.
Depending on how the Rudd Government wishes to play it, we could find the next two elections are this December and in May 2012.
At this stage we do not know the extent to which electoral considerations will influence the behaviour of the various players over emissions trading. Nevertheless, since so many people ask me this question I give today the arithmetic as it applies to the Greens who now have five senators.
At the 2007 election the Greens secured these percentages of the Senate vote in the states: NSW 8.4, Victoria 10.1, Queensland 7.3, Western Australia 9.3, South Australia 6.5 and Tasmania 18.1.
I reckon that in each of NSW, Victoria and Queensland (where there are currently no senators for the Greens) they would win one seat in each state. I reckon that in Tasmania and South Australia the Greens would retain their two seats and one seat, respectively.
Their big problem would be Western Australia where they now have two senators Rachel Siewert, elected in 2004, and Scott Ludlam, elected in 2007. I think it probable that Ludlam would lose his seat in a double dissolution election.
So the Greens would probably increase their presence from five to seven seats, eight if they were lucky.
This arithmetic tells us that the Greens have nothing to fear from a double dissolution.
Malcolm Mackerras is a visiting fellow at the School of Humanities and Social Sciences, the University of NSW, at the Australian Defence Force Academy.