August 12

An ETS not guaranteed

The debate over an emissions trading scheme is dominating the Australian Parliament to an even greater extent than in other countries, including the US.  If the same bill is rejected twice by the Senate, it could trigger a double dissolution. If the Senate again rejects the same bill, it may be presented to a joint sitting of both houses. If it passes that it will be presented to the Governor-General for Royal Assent.

But even then the government may not be able to put in place an ETS if it does not control a majority in the Senate. This demonstrates the importance of the upper house in our constitutional system. 

As Glenn Milne reports in The Sunday Telegraph of 8 August “ETS disillusion and dissolution,” although the government’s  ETS framework is based in law, “its real mechanics – what makes it actually work – are based on a myriad of regulation, particularly the most contentious aspects regarding protections for export and job-exposed sectors such as the coal industry.”

According to Harry Evans, the retiring Clerk of the Senate, the Prime Minister could find himself in a situation  similar to  that of Prime Minister Bob Hawke after the double dissolution in 1987.

He  prepared to call a joint sitting  to pass the Australia Card legislation but in a  dramatic day in the Parliament that stunned Hawke and his senior ministers, opposition leader John Howard revealed the Australia Card legislation had a fatal flaw, declaring it “dead – stone dead''.

“Howard's charge rested on the fact that the ID card legislation required the start-up date for the card to be set by "regulation''. Regardless of any joint sitting of Parliament passing the legislation, this meant the anti-Labor Senate still had the power to strike down the regulation that would be needed to bring the card into law,” says Glenn Milne.

The government gave in.

…the legislative framework… 

From Federation, as in most Westminster systems, legislation has provided either house may disallow regulations.

The current legislation is  the Legislative Instruments Act, 2003. According to a Senate briefing paper, the legislation works in the following way:-§  As soon as practicable after making a legislative instrument, the maker must lodge the instrument and its explanatory material with the Attorney-General’s Department for registration – instruments are not enforceable unless they are registered;

  • the Department must arrange for the instrument to be tabled in each House within 6 sitting days of being registered;
  • instruments that operate retrospectively to disadvantage any person (other than the Commonwealth) are of no effect;
  • within 15 sitting days after tabling a senator or member of the House of Representatives [but in practice usually the former] may give notice of a motion to disallow the instrument (in whole or in part);
  • if the motion is agreed to, the instrument is disallowed and it then ceases to have effect;
  • if a notice of motion to disallow the instrument has not been resolved or withdrawn within 15 sitting days after having been given, the instrument is deemed to have been disallowed and it ceases to have effect;
  • disallowance has the effect of repealing the instrument – if the instrument repealed all or part of an earlier instrument then disallowance also has the effect of reviving that part of the earlier instrument;
  • a similar instrument cannot be made again:
    • within 7 days after tabling (or, if the instrument has not been tabled, within 7 days after the last day on which it could have been tabled) (unless both Houses approve);
    • while it is subject to an unresolved notice of disallowance;
    • within 6 months after being disallowed (without the approval of the House that disallowed the regulation)


….a double dissolution?…


This legislation, although not in the constitution, is part of our constitutional system which provides checks and balances against the abuse of power. The cumulative effect of this will be that a double dissolution on as important a question as the ETS could take on the nature of a referendum.  

Because of wide media support for an ETS, the failure of much of the mainline media to allow dissenters a voice, and the support in principle for an ETS by the opposition leader and the shadow cabinet, little has been heard about the arguments against an ETS, as well as the costs involved. This may well change in a double dissolution election.

ACM has no position on either anthropogenic global warming or an ETS. Our role is to defend the constitutional system which provides checks and balances against rushed legislation and ensures the people are consulted. The system is designed to ensure an informed vote by the people. 

The system is designed to ensure an informed vote by the people, and  nothing could be more democratic than that. 



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