IT IS broke and it should be fixed.
The double-dissolution mechanism in the Constitution is flawed. This week’s second rejection of the climate-change legislation and previous cases prove the point. The double dissolution is a sledge-hammer to crack a walnut. It requires expensive national disruption to resolve legislative impasses. We should be able to craft easier ways.
The double-dissolution – where both houses go to the polls as a way of resolving disputes between them — is a creature of the 19th century, when there was less legislation and each bit was significant. Then it might have been reasonable to dissolve both houses and have an election over a single piece of legislation. Now, with more legislation and a more rigid party system, the system is less functional.
Moreover, double dissolution elections may be constitutionally triggered by twice-rejected legislation but politically they are usually fought on other issues. The Australia Card was barely mention in 1987 and was not even put to a joint sitting after the election — which is the mechanism for breaking the impasse. And who can remember what the twice-rejected Bills were in 1980?
The biggest trouble with double dissolutions is that because a deadlock has to be broken, the newly elected senators must sit immediately. But they have fixed terms that begin in July. So the Constitution deems them to have been elected on the PREVIOUS July 1. They do not take their seats on the SUBSEQUENT 1 July as in ordinary half-Senate elections.
Those elected in, say, a February 2010 double dissolution would be deemed to have been elected on 1 July 2009. Half of them would get six-year terms and the other half three-year terms ending on 30 June 2012. The Constitution requires those three-year senators to face re-election in the 12 months before their term expires – that is in the 2011-12 financial year.
You could have a half-Senate election on its own – unnecessarily expense and disruptive. Or you have a Reps election at the same time, thus shortening the term of the new Parliament by at least eight months.
That penalty is one reason why the Government is unlikely to have a double dissolution on climate change.
Another reason is that the Government will not do as well in a double dissolution as in an ordinary half- Senate election.
For the purposes of explaining this I will leave out the territory senators because the territories have always each elected one Labor and one Coalition senator and always will.
In a half-Senate election in 2011, the Senators who were elected in 2004 (when John Howard did very well) will be up for election: 19 Coalition senators, 14 Labor and 3 Green. In 2004 the Coalition won three of the six Senate seats in every state except Queensland where they got four. Labor got two in every state except South Australia and NSW where it got three.
The Greens got three and Family First one, making 72 in all.
The way the polls are, you would expect Labor to pick up a third seat in four states and the Coalition to lose a seat in up to four states.
It would leave the resulting Senate with 34 Labor, 31 Coalition and seven minors – give or take one or two here and there. In that Senate, Green support or abstention would be enough to get Bills through.
Compare that to a double dissolution when the quota for a seat is 7.7 per cent after preferences, against 14.3 in a half-Senate election. The minor parties love it. At the last double dissolution in 1987, the Democrats won seven, and the Vallentine Peace Group, the Harradine group and the Nuclear Disarmament Party each won a seat.
My guess is that in 2010 the Greens, Xenophon, Family First and others might get even more than 10 seats. It would be a nightmare of wheeling and dealing for those steering legislation through the Senate.
So in return for getting climate change legislation through 17 months earlier with a double dissolution than might happen in the ordinary course of events, the Government would lose at least eight months of its subsequent term and have to deal with a hotch-potch Senate for all its other business.
Rudd is too smart to take that deal. It is simply not worth it.
The Coalition should realise this. Either way, though, they have completely muffed it for their constituency. The Turnbull-Wong deal was the best thing going for business and industry because public and international pressure means Australia will have to do something about climate change.
In 17 months time many of the troglodyte deniers elected to the Senate in 2004 will be out and the Government will have to deal with the Greens. The result will make the Turnbull-Wong deal look like a polluters’ picnic.
In the meantime, the Constitutional provisions on resolving deadlocks between the Houses remain defective. The fixed Senate terms causing the shortened subsequent Reps term and the low quota for full Senate elections make the cost of its use too high.
Several ways to deal with the defects come to mind. End fixed Senate terms. Or fix the Reps term and allow legislation rejected by the Senate to be passed by the Reps alone or a joint sitting after the subsequent ordinary election – after all, the exact legislation would have been before the voting public at election time so the incoming Government would have a clear mandate.
This would go for conservative causes like the Work Choices legislation as well as progressive causes. That’s democracy. And it is important because it should mean that both sides have an interest in fixing it.
The important point is that the “ain’t broke” argument does not run. Both sides have recognised that because they have each put referendums to end fixed terms for senators, but each ran spoiling tactics at the other’s proposals.
Yes, we should have a good contest over ideas, but it would be helpful to have a bit of bipartisanship to fix structural defects in the system.
Bumbling along with deadlocks on important issues does not mean it ain’t broke.
CRISPIN HULL
This article was first published in The Canberra TImes on 5 December 2009.