I won’t be available to take part in this evening’s fortnightly Newspoll festivities (nor this afternoon’s Essential Research, which Possum tends to be timelier with in any case), but here’s a thread on which you can keep each other informed of the news as it breaks, as well as doing the other things you usually do.
The Acts Interpretation Act 1904 forces the tabling of regulations. It is very fundemental legislation. The only way the government could overcome it would be to override the Acts Interpetation Act in the ETS bill and then get it through a DD and through a Joint Sitting and into law. But such an attempt would be guaranteed to have the whole matter before the high court as to whether an attempt to prevent parliamentary oversite of regulations is in breach of the Constitution. That would be a really dumb way to write legislation. Anyway, the government isn’t trying to do it.
Try reading the relevant chapter of Odgers Senate Practice.
http://www.aph.gov.au/SENATE/pubs/odgers/pdf/chap15.pdf
[The Acts Interpretation Act 1904 forces the tabling of regulations.]
Actually, I believe the relevant legislation is the Legislative Instruments Act 2003. But what you say afterwards is correct (I believe).
The LIA is the new updated version that rationalises the process and sorts out the procedures. It would be a swine to cirumvent.
Is there any electoral advantage for the ALP to get a DD trigger lined up (say CPRS) and then declare a DD just before time runs out to get a full Senate election at the next poll??
I can see that it may be in the Greens interests for that to happen as a smaller required quota would give them a better chance of holding seats and gaining new ones. Also, their profile would be high coming into the election if it was called on the CPRS.
Turnbull’s come out with something about voting on a CPRS after January. So that would give the govt plenty of time to introduce it, have it knocked back, wait 3 months, and then introduce it again before the end of the year. That would put Turnbull right on the spot to either fold, or face a DD during 2010. Surely the worst of worlds is for the Libs is for the Greens to have shown willing to negotiate somewhat in 2009 (if they are smart!), the Libs to have blocked it, and for this to be the flagship issue in- a DD election?
Of course if its a DD and the quotas are low then there is a risk that raving nutjob indies like Fielding may win Senate seats??
Question time – first Jenkins informal warning goes to Pyne. Who’d have thunk it?
The Senate does not have to reject legislation twice with a gap of (at least?) three months but simply “fail to pass” it. Referring it to the Productivity Commission would be failing to pass it. Why, other than the redistributions in NSW and Qld would Rudd wait?
You can’t dissolve parliament for a DD within 6 months of the expiry of the House of Representatives. The House expires on 11 Feb 2011, so the writs for a DD would have to be issued by 11 August 2010. The election date would be September, or as late as 16 October if you want a full 9 week campaign.
Is Cossie going to work for Google?
“When they’re not hard at work, Australian Googlers can relax in a hammock, bean bag or lounge chair while playing any of the three major games consoles, pool, table tennis and any number of board games. A live webcam allows them to see if the equipment is being used without leaving their desk.”
Tom, the fail to pass gets messy. In asking for a DD, the PM would tell the GG his reasons why he feels the Senate has failed to pass. The GG would make a judgment on whether that condition has been met in granting an election. Based on McKell’s reasons for allowing the 1951 DD, there is scope for ruling ‘fail to pass’. But after the 1951 DD, Menzies didn’t need a joint sitting to pass his blocked bills. If any bill was put through a joint sitting, a High Court challenge could be launched on the meaning a ‘fail to pass’. The High Court would not rule on the constitutionality of the GG’s decision making in calling an election, but it could rule on the constitutionality of the bill then using the Joint Sitting leg of Section 57 to pass into law.
Referring to the Productivity Commission would be forced to the vote by the government, and given such a referral is not normal procedure for the Senate, there would be a case to argue it was a ‘fail to pass’.
Interesting time ahead.
Both politically and constitutionally.
LOL! Andrew Robb asks Swan why the Government isn’t spending ENOUGH money on infrastructure!
The ALP will probably gain seats in a DD, purely because they performed so terribly at the Senate elections in 2004. However, this is likely to happen regardless of a DD or a half-senate election. The only possible upside would be that Labor would have a greater shot of picking up 5 senators in WA and SA than would otherwise be the case in a half-senate election.
The Greens would almost certainly benefit the most out of a DD. I could see them winning 1 seat in each state and possibly a second one in Tasmania. That would take them from their current total of 5 to a total of 7. They may also have shots (albeit small) at picking up an extra seat in Victoria and/or ACT.
Xenophon should pick up 2 seats in a DD – he got a quota by himself in 2007, after all. It would still take a bit of a fluke for Fielding to get reelected, even under a DD – however, he would have a better chance than under a half-senate election.
What I see mostly happening is the senate would probably split 6/5/1, with the major parties taking either 5 or 6 seats in most states (I see Labor probably getting 6 in NSW, Tas and Vic with the Coalition getting 6 in WA and Qld) and the Greens picking up the 1 other one. In SA, it will be difficult to predict, as it will depend on how well the Greens go, how well Xenophon goes and how much “excess” Labor vote there will be. The most likely would scenario would be the 2 majors splitting SA 5-5, with Xenophon either getting 2 or the Greens sneaking 1 from him.
[In asking for a DD, the PM would tell the GG his reasons why he feels the Senate has failed to pass. The GG would make a judgment on whether that condition has been met in granting an election.]
But shouldn’t the G.G. act on the advice of the P.M.? If the P.M. says the bills were blocked, i.e. by sending them off the 3 different committees, then isn’t that good enough?
Or does the G.G. actually have broad reserve powers in this area that are currently unknown because they have never been tested in the High Court?
[The High Court would not rule on the constitutionality of the GG’s decision making in calling an election, but it could rule on the constitutionality of the bill then using the Joint Sitting leg of Section 57 to pass into law.]
Antony, how can it be constitutional to hold a DD election, based on the GG’s decision that the requirements of s57 have been fulfilled, and then not be constitutional to hold a joint sitting to pass the bill which was the subject of the DD?
[LOL! Andrew Robb asks Swan why the Government isn’t spending ENOUGH money on infrastructure!]
He asks why there’s a $60b black hole between what the government has committed to in dollar terms for its infrastructure projects, as compared to what KPMG reckons it’ll end up costing.
We may support Labor over Liberal but we do know when answers to questions are evasive and answer a question that was never asked.
The Pipelines bill. The GG granted it as one of the four bills for the 1974 DD, but subsequently ruled unconstitutional because it did not meet the DD requirement because it had failed the 3 month test. However, the case specifically stated it did not overturn the right to call a DD, just clarified the law on the grounds. The ‘fail to pass’ bit has not been properly tested in a court case.
I think that Xenophon would most likely get two quotas and the Greens get Senator Hanson-Young back with the ALP getting 5 and Liberals 4. I think the Greens are likely to get the 7.69% needed and Xenophon the 15.38% needed.
Sorry, the High Court subsequently ruled is inconstitutional to be presented to a Joint Sitting.
My typing is terrible today. The High Court later invalidated the Pipeline Authority bill after it had been passed by a Joint Sitting because the court ruled it had not met the Constitutional requirements of Section 57. The Whitlam government gave the GG its advice on what the 3-month period meant and the GG accepted it. The High Court subsequently said the Whitlam government’s interpretation of the 3 months was not correct. Any GG these days would use the High Court’s clarification of 3 months.
OK, yes I suppose that is in theory possible. Two points:
* If the DD was granted on the basis of only ONE bill, finding that that bill had not satisfied s57 must logically invalidate the DD. I doubt the HC would ever do that. * Whether a bill has passed the three month test is a matter of fact. Whether it has passed the “fail to pass” test is a matter of opinion. If the GG agrees that a bill has “failed to pass,” it’s surely unlikely that the HC would overturn the GG’s judgement, particularly given the 1951 precedent, when referring a bill to a committee was held to be “failure to pass.”
[to in dollar terms for its infrastructure projects, as compared to what KPMG reckons it’ll end up costing.]
No. The KPMG report says even after the current Federal government projects are finished, there will still need to be another $60 billion spent on OTHER infrastructure projects.
Hence Robb was effectively attacking the government for not spending enough money on infrastructure, and thus Robb wants there to be even more debt.
[Sorry, the High Court subsequently ruled is inconstitutional to be presented to a Joint Sitting.]
So if that was the ONLY D.D. trigger bill at the 1974 election, would’ve that meant the entire election was unconstitutional because there was no valid reason for a D.D. election be called?
[The KPMG report says even after the current Federal government projects are finished, there will still need to be another $60 billion spent on OTHER infrastructure projects.]
That’s not how I heard it. I heard it as an additional $60b will be required before said infrastructure projects would be complete.
In a DD Senator X got anywhere near 2 quota he would elect a running mate.
This is he he would and Harradine didn`t.
http://results.aec.gov.au/13745/Website/SenateUseOfGvtByState-13745.htm
http://www.aec.gov.au/Elections/federal_elections/1998/senate/sen_gv.htm
Wait a minute. I’m not a Constitutional Lawyer. There is some principal or case where the High Court has clarified that it will not re-visit the power of a GG to grant a dissolution. Issuing writs is a reserve power, not written words in the Constitution. I think it is written in the judgment of the Pipeline case.
If the issuing of writs was CLEARLY unconstitutional, then the High Court might hear an emergency case, but not for just an arguable case.
The GG is not the High Court. If the High Court has clarified the Constitution, the government’s advice to the GG must reflect that clarification. The Whitlam government put an arguable case for the Pipeline Bill meeting the 3 month requirement in 1974 and the High Court subsequently rejected it.
Similarly, McKell allowed the DD in 1951 on the ‘fail to pass’ on the second passage. I’ll stand corrected, but I don’t think the High Court has ever ruled on what is meant by ‘fail to pass’ in the case of a DD. The Senate has to be given reasonable time to persue its normal procedures. If the government just bunged the bill into the Senate and rushed it to a vote against normal procedures just to get a blockage and then used it as a justification of a DD trigger, I’d guarantee it going to the High Court.
There might even be a legal principle involved. The legal principal might be the Chief Justice.
Watching QT, I don’t understand why Labor never says in response to “Labor’s $300b of debt” that a) it’s future projected debt, and b) the vast majority of it is due to the loss of revenue as a result of the global recession?
Ok so Senator X got just over half the rate of bellow the line that Harradine got in 1998.
http://results.aec.gov.au/13745/Website/SenateUseOfGvtByGroup-13745-SA.htm
But that still gives him an significantly increased chance compared to Harradine.
Also Senator X`s vote was down from the SA 2006 election to the Federal 2007 election, probably due to a cutting his term short and running for anther office factor, and so it may go up again.
He may benefit from preferences more than Harradine did in 1987.
A DD may effect the vote and preferences for Independents like Senators X and Harradine.
Bob, I’ve heard BOTH a & b used in replies many times, just not today
[that a) it’s future projected debt, and b) the vast majority of it is due to the loss of revenue as a result of the global recession?]
It works like this. When an economic projection makes the Government look bad, the opposition believes in economic projections. When an economic projection is positive for the government – such as that the economy will start to grow again by the start of the 2010/11 financial year – economic projections are wrong.
[The Senate has to be given reasonable time to persue its normal procedures. If the government just bunged the bill into the Senate and rushed it to a vote against normal procedures just to get a blockage and then used it as a justification of a DD trigger, I’d guarantee it going to the High Court.]
That’s certainly true. In 1951 the Senate did not have the committee procedures it has now, and McKell agreed with Menzies’ contention that referring the banking bill to a committee was a delaying tactic (which it was). In the case of the CPRS bill, there have already been two committee enquiries, involving weeks of hearings. If the Senate voted to delay a vote on the bill pending a Productivity Commission report, I think the PM could fairly advise the GG that this was a device to avoid a vote on the bill (which it would be).
[I think the PM could fairly advise the GG that this was a device to avoid a vote on the bill (which it would be).]
So do you mean that it could be a D.D. trigger even if it has never formally been voted on, simply because it has been sent to 2 committees, and possibly the Productivity Commission.
Just checking my case law, in 1974 the High Court declined to hear arguments ahead of the Joint Sitting on the constitutional validity of the Petroleum and Minerals Authority Act bill (often called the pipelines bill) in calling a DD. It only addresed the matter after it had passed a Joint Sitting. From memory and on my quick re-reading, the High Court chose not to get involved in the GG’s power to call a DD or to summon a Joint Sitting. There were legal cases flying everywhere on the matter.
Psephos are you now going to retract you previous statements that because Harradine`s preferences drifted in 1987 so will Senator X`s if there is a DD.
[Psephos are you now going to retract you previous statements that because Harradine`s preferences drifted in 1987 so will Senator X`s if there is a DD.]
Are they really the same? At the 2007 election, Xenophon’s vote in some safe Labor seats exceeded that of the Liberals.
That’s right ShowsOn. You can be sure the press would get to see the PM make a formal trip to Yarralumla to offer legal advice that the government feels the first leg of a DD trigger has been reached. That procedure isn’t actually required but it would be perfectly valid to do. Then all the constitutional lawyers would appear arguing whether this was failure to pass. But the point is advice would be tendered and pressure would mount on the Opposition.
[Bob, I’ve heard BOTH a & b used in replies many times, just not today]
I was referring to today
>>.I see Labor probably getting 6 in NSW
In your dreams especially if the DD is before March 2011 – which it would have to be. The voters of NSW will be out to give Catholic Action… err the ALP in NSW a right going over.
If Senator X was a political gambler (which would be ironic) then he would put himself second on his own ticket to stop the people who vote 1 Senator X, 2 a different ticket from leaking away from him. This would be open to ridicule and related loss of votes and would probably end his political career if it elected his running mate but not him.
[Then all the constitutional lawyers would appear arguing whether this was failure to pass. But the point is advice would be tendered and pressure would mount on the Opposition.]
But if the G.G. decides that the P.M. is right, going by the 1974 precedent, the High Court wouldn’t intervene and rule on the G.G.’s decision? They will just accept that the P.M. advised the G.G. in good faith?
Our system of government has more holes that the proverbial Swiss cheese. It’s amazing that it works at all.
Psephos, in 1951 the delay was on the second passage. I’m just re-reading the letter from Menzies to McKell, and the Senate was making no effort to consider the bill, or even constitute the committee it was proposing to send it to.
I’m just waiting for the press to realise this whole matter might become constitutional lawyers at 50 paces on the meaning of failure to pass.
[I’m just waiting for the press to realise this whole matter might become constitutional lawyers at 50 paces on the meaning of failure to pass.]
This is always a problem with constitutions that rely so heavily on convention.
ShowsON, yes on the GG’s decision. But the 1974 precedent is that any bill passed at a Joint Sitting after a DD could be challenged on its constitutionality for being allowed as a DD trigger. It would not rule on the GGs constitutionality in issuing the writs, but it could rule on the subsequent passage of the legislation. To invalidate the writs retrospectively would be a nightmare as it would invalidate the Parliament elected. The High Court won’t do that.
To get 6 in NSW the ALP would need 46.15% and the Greens would get a quota by them selves so there surplus may help the ALP but I think that 6 is out of the question outside Tasmania and Victoria. The Coalition would have to get less than 38.46%.
The failure to pass issue is not convention but ambiguity.
[To invalidate the writs retrospectively would be a nightmare as it would invalidate the Parliament elected. The High Court won’t do that.]
But if you add to that the fact the G.G. is meant to rely on the advice on the Prime Minister, that means “failure to pass” comes down to what the Prime Minister thinks it means!
Either way it seems to me that the Government could have a D.D. trigger on this whatever the Liberal party does. If the Liberals want to vote on an amended version in January, the Government could just vote against it.
[The failure to pass issue is not convention but ambiguity.]
Well, there is a convention that the G.G. acts on the advice of the Ministers. So I think it is it is a problem with lacking to codify the powers of the G.G.
Last Sitting day for both houses is June 25th.
That would put the CPRS bill (assuming its already been comitteed to death, (re:Psephos @ 130) back in play by beginning of October if its voted down or “fails to pass” by June 25th.
Parliament sits (HoR only) from the 19-22 Oct 2009. Lots of fun and games and viewer bloodsport to be had.
Both Houses sit from the 26-29 Oct, then not again until 16-26 Nov 2009.
So if the pressure is to be kept on the Libs I think the first round of pass/fail to pass needs to be done and dusted by June 25th. So, by 29 Oct 2009 we will know if CPRS is going to be a possible DD trigger.
Maybe that means that Turnbull has at least till then as leader as who else would take the job when all this stuff is going on?
Antony @140
All it takes for the press to realise is an internal ABC email to or conversation with your political reporter colleagues. Or would that be improper.
TtFaB
If Senator Y were to resign on (or perhaps before) the first day of the new Senate couldn’t X then become Senator X again if the X Party were to nominate him in the SA Parl?
[So if the pressure is to be kept on the Libs I think the first round of pass/fail to pass needs to be done and dusted by June 25th. So, by 29 Oct 2009 we will know if CPRS is going to be a possible DD trigger.]
I think Antony’s point is that it if it is sent off the the Productivity Commission, it could IMMEDIATELY be considered a D.D. trigger, because the Senate keeps sending it off the reviews instead of bringing it to a vote.