March 11

A referendum with the next election?

The latest possible date for a general election is Saturday, 16 April 2011, although almost everybody thinks it will be this year.  But a double dissolution election cannot be granted after 11 August; the actual election would be later.

I think it unlikely that the Prime Minister will go to an early election. He will hope as, Crikey’s Bernard Keane does, that Tony Abbott has peaked. That is unlikely, but advisors will warn the government that the public prefers a government to serve close to its full term, something the Prime Minister has repeatedly affirmed.  

The particular interest for constitutionalists is not so much the timing of the election. It is that the path to the election is governed by a number of constitutional provisions, and that there will no doubt be calls for a simultaneous vote on a politicians’ republic.

…referendum this year?…

 

The Prime Minister has said that if the states refuse to sign up to his health plan, “we will take this reform to the people at the next election – along with a referendum by or at the same election to give the Australian government all the power it needs to reform the health system”.  (Paul Kelly, The Weekend Australian, 6-7 March 2010. At the time of writing this was not on the web)

If a referendum to increase the Commonwealth’s power with respect to hospitals is held by or with the election, there will be demands addressed to Mr. Rudd from republicans to hold a referendum or plebiscite on Australia becoming a politicians’ republic.

Seasoned political advisors will tell Mr. Rudd not to touch this.


…the Senate and the referendum….

 First, polling trends indicate a republic referendum or plebiscite will be lost. More importantly for the government, it would soak up too much media time which will be diverted from other issues. If the Senate rejects the referendum, or fails to pass it or passes it with an amendment unacceptable to the House, and three months passes, the government may try again.

If the Senate rejects it or fails to pass it or passes it with an unacceptable amendment, the Governor–General may submit the referendum to the people (Constitution, section 128).
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An undecided question is whether this is part of the reserve powers, i.e., does the Governor-General make this decision in her discretion?  There is good reason to suggest that the Governor-General should consider the government’s advice, but come to a decision which she considers correct.

The analogy I would suggest, is in the  deadlock provisions concerning a double dissolution where the Governor-General comes to an independent decision as the Australian constitutional head of state.

….a double dissolution?….

Second, the prime Minister may advise a double dissolution, which is not a routine matter. Two referendums would  complicate the situation.

In exercising the power to dissolve both Houses, the Australian Electoral Commission (AEC) says the Governor-General acts on government advice.

True, but the Governor-General is not bound to accept the advice. That was the view of the Labor Party in 1914 when Sir Ronald Munro -Ferguson granted Joseph Cook a double dissolution, to which they strongly objected. it remained their view in 1951. The other parties have always agreed that this falls within the discretionary reserve powers.  

A double dissolution cannot take place if the term of the House of Representatives will expire within 6 months. This means a double dissolution can only be granted on or before 11 August 2010. (section 57)

The writs must be issued within 10 days of dissolution ( section 32) , and polling day follows between 33 and 58 days after that.

The AEC advises that while a double dissolution must be proclaimed by the Governor-General by 11 August the actual election could occur as late as 16 October 2010 (based on maximum timetables), but with the usual minimum timetables, the latest date would be 18 September 2010.

The question is how likely is the Prime Minister to want to close down the Parliament on or by 11 August and have up to two months of campaigning and perhaps losing the chance of having a referendum. On the other hand he may prefer that, particularly if he thinks he would lose the referendum.

More than one Bill may provide the basis for a double dissolution. It is possible for a government to save up (or "stockpile") double dissolution bills as ‘triggers' during a term of Parliament, in order to get them all passed at the same time.

Just because an election is called on the basis  of a rejected bill or bills does not of course mean that will dominate the electoral campaign. If the trigger were, for example the rejection of the bill to means test the private health insurance rebate, this is hardly likely to  be the dominant issue in the election.

  

…six double dissolutions…..

There have been six double dissolutions since federation and one joint sitting.

 

In 1914 and 1983, the government lost the election that followed the dissolution and no further action was taken on the disputed bill or bills.

 

In 1951 the government won the election with a majority in the Senate and so the deadlock was broken in that way.

 

In 1974 and 1987 the government won the election but did not have a majority in the Senate. In 1974 the six bills that had been the basis for a double dissolution were passed by the one and only joint sitting. One was subsequently found to have been invalidly put to the joint sitting.In 1987 the Hawke government decided not to proceed with the bill which triggered the double dissolution.  

 

The double dissolution in 1975 was unusual. More than 20 double dissolution bills had been stockpiled when the Senate delayed three other money bills, including a key appropriation bill.

The Governor-General (Sir John Kerr) eventually dismissed the Prime Minister (Mr Whitlam) and asked the Leader of the Opposition (Mr Fraser) to take over as Prime Minister on condition that he would advise the Governor-General to dissolve both Houses and call an election  held on 13 December 1975).

 

  


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