SO, Prime Minister Tony Abbott has almost got his trigger for a double dissolution election. It is very unlikely he will use it, at least not for a while. But it does raise the question of how the system deals with an obstructionist Opposition.
The legislation to abolish the Clean Energy Finance Corporation, which was knocked back by the Senate three months ago, was reintroduced to the House of Representatives and will presumably be knocked back by the Senate a second time.
Ordinarily, that would mean the Prime Minister could ask the Governor-General for an election for both Houses of Parliament.
But these are no ordinary circumstances because we had an election for half the Senate last September and those Senators have not yet taken their seats because the Constitution provides for fixed terms for senators beginning on the July 1 immediately after their election — in this case nearly 10 months after their election.
There is some untested ground here. It may be that the Constitution implies that these Senators must take their seats so there can be no double dissolution until they do so. It is a weak argument, but it is a safe bet that some of the successful micro-party candidates would launch a High Court challenge however weak the case.
It will not happen soon, if at all. If Abbott were minded to have a double dissolution, you would expect him to build up a battery of twice rejected Bills first. That way he could run an argument about an obstructionist Opposition not accepting the will of the people, as Gough Whitlam successfully did in 1974. Whitlam chalked up 10 twice rejected Bills to go to the people with. The big-ticket item was Medibank, the earlier version of Medicare.
Abbott, on the other hand, would not have a swag of reforming Bills to do things. Rather he would have a swag of Bills to undo things – repeal the carbon and mining taxes and various other Labor reforms like the Charities Commission.
But nonetheless he would have an argument that Labor is denying the will of the people.
The normal pattern here is for people to say: “When my party is in power and its Bills get knocked back by the Senate, the other lot are being obstructionist, but when my party is in Opposition and is doing the blocking, it is using powers given to it by the Constitution to responsibly review legislation.”
It is not a very solid way to argue.
As it happens I think that repealing the Clean Energy Finance Corporation, the carbon tax and the mining tax is just bad policy. Indeed, the corporation is just about to turn a profit.
But these things were put to the people and they voted for them but the Senate is blocking them, and the constitutional mechanism for resolving that impasse is ridiculously cumbersome.
At the time of Federation, legislation in the colonial and British Parliaments was fairly thin on the ground. And it was thin in the years immediately after federation in the Commonwealth Parliament. Legislation was a big deal and so a cumbersome method to get it through might have had some merit.
But these days we have mountains of it. We should not have to go to the trouble, cost and delay of a double dissolution to get key parts of it through.
After his re-election in 1974, Whitlam had 21 more Bills twice rejected in 18 months before the dismissal. It was a blot on the democratic landscape.
Of course, translating an election platform into legislation is a fairly imprecise exercise. So a new government should not have open slather.
So it might make more sense to meet halfway, but still avoid double dissolutions altogether. Maybe we should change the Constitution so that if the Senate blocks legislation and the Government is re-elected at the next election, that rejected legislation could be passed into law by a House of Representatives vote alone.
It would be pretty hard to argue against that sort of mandate when the actual legislation is on the table at election time.
That might be a bit more democratic.
The other defect with double dissolutions is they tend to put the Senate out of kilter with the House. After a double dissolution, Senators are deemed to have started their terms on the July 1 BEFORE the election. So if the next election is to be a simultaneous one with the House, it means the House has to run for a period less than its full three years.
How much simpler would it be if the Senators’ terms were deemed to be for two terms of the House, rather than fixed to begin on July 1.
It is absurd that the 36 senators who were elected in early September have to wait 10 months to take their seats. And even then might not get there at all if there is a double dissolution before then.
On top of this constitutional muddle we have the legislative muddle of the Senate voting system where micro-parties with less than 1 per cent of the vote can get a senator.
Couple this with the fiasco of the lost ballot papers. Gosh, perhaps we can have a new lot of senators elected in Western Australia in April who do not get to take their seats because we have a double dissolution.
That would be a triumph for the democratic process – two lots of senators elected, none of whom take their seats.
The more fundamental point is that Australia – as a grown up mature democracy – should not be scared of visiting and revisiting its constitutional and electoral arrangements and tweak them a bit every now and then as circumstances demand.
The present position of the Senate – its powers and how it is elected – is an affront to democratic principle. I don’t like Abbott’s repeal agenda for a second, but the fact is the Australian people elected him after Labor completely and ineptly managed “the greatest moral challenge of our time”.
If democracy means anything Abbott has got to be given a run and we should be brave enough to visit the constitutional provisions that prevent that.
After all, next time it will be Labor who is obstructed.
CRISPIN HULL
This article appeared first in The Canberra Times on 22 March 2014.