Doubtful double 'D' poll

11 September 2013

Before the election, Tony Abbott ruled out negotiating with independents or minor parties if he didn't achieve a majority in the lower house. But the pain Julia Gillard experienced in bargaining for the votes of three independents in the house is likely to be magnified for Abbott in getting six or more votes from a motley crew of micro parties in the Senate. Is there another path? Abbott previously threatened to call a double dissolution if his legislation was blocked in the Senate. How feasible and likely is this?

Unlike the House of Representatives, the Senate is not dissolved at every election. It is a continuing house. Its Senators have fixed six-year terms with half being elected every three years. The candidates who were elected to the Senate last Saturday (other than Territory senators) will not take up their seats until after the terms of half the current senators run out on June 30 next year. That means that the Abbott government will confront a Senate where the Greens hold the balance of power until June, followed by three years of micro- party horse-trading.

The only chance of changing this outcome is if a double dissolution is held, terminating both houses and starting afresh.

Double dissolutions are relatively rare. They have only been held six times in the past. This is partly because of the difficult and time-consuming procedure, but mostly because they are rarely advantageous for a government. The procedure involves a bill being passed by the house and blocked by the Senate twice, with an interval of three months in between the two attempts.

Holding a quick double dissolution before July 1 faces two potential hurdles. First, there is a timing problem. The Senate is perfectly entitled to scrutinise bills, including sending them off to committees for public hearings and the receipt of expert advice. Once this is combined with the three-month delay between bills, the process can become quite drawn out. Categorising a bill as having "failed to pass" the Senate because it gets sent to a committee is a dangerous business. Whitlam tried it in 1974, only for the High Court later to find it not a valid trigger. Whitlam fortunately had other valid triggers to rely on. If the Abbott government was relying on a single double- dissolution trigger, it would have to be very careful indeed.

Secondly, there is a constitutional question as to whether a double dissolution could be held before the July 1 changeover, given that new senators have already been elected. It could be argued, for example, that a double dissolution is intended to resolve a deadlock between the houses, but once the Senate's composition changes on July 1, such a deadlock might no longer exist.

The main reason that it is unlikely that a double dissolution would be held is that it would be likely to make it even harder for the Coalition to negotiate bills through the Senate. Because 12 senators would be elected in a state, rather than six, the quota for winning a seat would be lower. This makes it much easier for micro parties and independents to win seats. Given the high vote for micro parties at this half-Senate election, the likely outcome of a double dissolution in the next six months would be to increase the number of crossbenchers holding the Senate balance of power.

A double dissolution would only be likely if the major parties got together and agreed to change the electoral laws to limit the ability of micro parties to be elected to the Senate.

This could be done by increasing the threshold quota for election, increasing the deposit paid by candidates and increasing the compulsory number of party members. They might also consider the approach that NSW took after the infamous "tablecloth ballot paper" of 1999, which was to move to "optional preferential above-the-line voting", so that voters can still vote above the line but can control their preference flows, rather than a system that allows the "gaming" of upper house seats by micro parties.

Finally, there is the issue of sending voters back to the polls so soon after an election. There is likely to be a backlash from the public if they feel that they are being forced to put up with another long election campaign simply because the government feels that they "got it wrong".

Many will have deliberately voted against the Coalition in the Senate to force it to negotiate and compromise on its policies. They may be none too thrilled to be told to go back and vote again.

Anne Twomey is a professor of constitutional law at the University of Sydney

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