Several weeks ago Green's Leader Senator Christine Milne announced that her party had delivered the Abbott government a trigger for a double dissolution by helping to block, for a second time, legislation to repeal the Clean Energy Finance Corporation.
While it is true blocking the legislation created a double dissolution trigger, is is unlikely that the Prime Minister yet has constitutional justification to request double dissolution. That is assuming he was of a mind to do so.
An overlooked aspect of calling a double dissolution, and an aspect that tripped up Malcolm Fraser in 1983, is that while possession of a trigger is necessary for calling a double dissolution, on its own a trigger is not a sufficient reason.
This necessary but not sufficient condition relating to double dissolution triggers goes back to legal advice at the time of the first double dissolution one hundred years ago this month in 1914.
June/July this year is not only the centenary of the path to the First World War. The same two months in 1914 saw the debate that led to the proroguing of the Parliament in 29 June 1914, followed by the proclamation of the parliament's dissolution on 30 July 1914.
The power of a Governor-General to dissolve both houses of the Commonwealth Parliament for an election is not one inherited from the British Crown. It is a power created by the deadlock provisions of the Constitution (Section 57) and is bound by interpretation of that section's wording.
When the Cook Liberal government was elected at the 1913 Commonwealth election, it had a one seat majority in the House (38-37) but was in a significant minority in the Senate (7-29). By May 1914 the government had created a trigger based on legislation blocked twice by the Senate, and in June announced that the Governor-General had agreed to a double dissolution, pending the passage of supply to carry on government until the new parliament could convene after the election.
This supply issue meant that the calling of the first double dissolution received a thorough debate in the Parliament, with the Senate addressing the Governor-General on the matter and requesting that correspondence be released. The Governor-General did not respond, referring to the statement made to the House by the Prime Minister.
With supply passed, both houses were prorogued on 29 June 1914, not long after a certain event took place on the other side of the world in Sarajevo. The proclamation of dissolution was issued on 30 July 1914. For unrelated reasons, five days later Britain and Australia were at war with Germany.
Labor won the election on 5 September, but by then the political and international situation had changed dramatically from when former Prime Minister Cook had written to the Governor-General on 4 June requesting the double dissolution.
On 8 October new Prime Minister Andrew Fisher released all correspondence between Prime Minister Cook and Governor-General Sir Ronald Munro-Ferguson. It set a precedent that has resulted in correspondence for all subsequent double dissolutions being made public.
For this first first use of the novel double dissolution power, the Governor-General requested, with Prime Minister Cook's consent, advice from Chief Justice of the High Court Sir Samuel Griffith on the use of the power granted to the Governor-General by Section 57.
Griffith was in a unique position to offer advice, having attended the 1890s Constitutional Conventions and been one of the authors of the Constitution's several drafts.
In the released advice, Griffith advised Munro-Ferguson that the exercise of power under Section 57 was not automatic based on the existence of a trigger, but required the Governor-General to be personally satisfied of several conditions related to the trigger. To quote from the advice -
An occasion for the exercise of the power of double dissolution under Section 57 formally exists ... whenever the event specified in that Section has occurred, but it does not follow that the power can be regarded as an ordinary one which may properly be exercised whenever the occasion formally exists. It should, to the contrary, be regarded as an extraordinary power, to be exercised only in cases which the Governor-General is personally satisfied, after independent consideration of the case, either that the proposed law as to to which the Houses have differed in opinion is one of such public importance that it should be referred to the electors of the Commonwealth for immediate decision by means of a complete renewal of both Houses, or that there exists such a state of practical deadlock in legislation as can only be ended in that way. As to the existence of either condition he must form his own judgment. Although he cannot act except upon advice of his Ministers, he is not bound to follow their advice but is in the position of an independent arbiter.
Since 1914 there have been five further double dissolutions, one in 1951, and four in 13 years in 1974, 1975, 1983 and 1987.
As with the 1914 double dissolution, the 1951 request related to a single piece of legislation that the government argued had recently met the requirements of Section 57 of the Constitution. As with 1914, Menzies in 1951 also faced a Senate under control of the Opposition, 34-26.
The 1974 request was different, resting on six pieces of legislation for which triggers had been built up over the previous 18 months. The 1974 double dissolution led to the only use of the second part of the deadlock provision, a joint sitting of the houses to deal with the disputed legislation. The process ran in parallel with a series of High Court cases that clarified the meaning of Section 57.
One of the Justices who sat on those High Court cases in 1974 was Sir Ninian Stephens. In July 1982 he was appointed Governor-General, which meant he was particularly well informed on the operation of Section 57 when Malcolm Fraser made the next request for a double dissolution on 3 February 1983.
The background to Fraser's request was the political situation surrounding the Labor leadership that day. Labor's National Executive was due to meet in Brisbane that morning, and an acrimonious debate was expected in defending Bill Hayden's leadership against supporters of Bob Hawke.
What Fraser did not know was that Bill Hayden had already made up his mind to stand aside in favour of Bob Hawke. What Labor did not know as they started their meeting was the Malcolm Fraser had headed out to the Governor-General's residence with a request for a double dissolution. Such were the joys of politics before mobile phones and twitter.
Embarrassingly for Fraser, Sir Ninian Stephens also did not know Fraser was on his way to Yarralumla. Fraser arrived with his listing of double dissolution triggers, but his advice lacked argument on the existence of practical deadlock. Knowing well the legal position related to Section 57, Stephens asked Fraser to provide further advice.
Fraser had already called an unscheduled press conference for 12:30, at which he expected to announce a double dissolution. However, he had left the Governor-General no time to consider his request, especially as he was about to engage in an important diplomatic lunch with the Polish Ambassador. Fraser was forced to return to Parliament House, by which time knowledge of his request had leaked and Labor had resolved that Bob Hawke would be the new Labor leader.
Through the afternoon Fraser provided further advice on the parliamentary situation to the Governor-General, and by evening had been granted his request for a double dissolution. But by then Bill Hayden had resigned, Labor had not imploded in acrimony, and Fraser had four weeks to try and destroy Bob Hawke's Labor leadership. He failed.
The relevance of this story is that while the Abbott government now has a double dissolution trigger on legislation to repeal the Clean Energy Finance Corporation, it has no grounds to argue that a situation of practical deadlock exists with the Senate.
The trigger was achieved in a Senate that ceased to exist on 30 June. The new Senate's term began in 1 July and new Senators will be sworn in next week.
If in the highly unlikely situation that the Abbott government were to suddenly request a double dissolution based on this legislative trigger, the Governor-General would be entirely entitled to ask for evidence that a practical deadlock exists with the Senate. As the new Senate has yet to meet, and as the new Senate has not debated the legislation, the Governor-General would be entitled to say a practical deadlock does not exist.
But beyond these constitutional issues, there are more practical issues about why we are not going to see a double dissolution election any time in the near future. These are
- There is no way the Abbott government would call a double dissolution based on one part of the carbon legislation. It will build up triggers on all the different pieces of rejected carbon legislation before it even considers a double dissolution.
- The government would also be keen to gather as many other legislative triggers, to have as many irons in the fire as it can before listing all as triggers for a double dissolution.
- A double dissolution under the current electoral laws would be a farce. There will not be a double dissolution until the senate's electoral system is changed.
- The government would be wary of a double dissolution until it knows how it can work with the new balance of power Senators.
- The government would want to know whether the Palmer United Party has a long term future, something that will take time and several state elections to assess.
The option for a double dissolution is available until mid-May 2016. There is no reason to rush to a double dissolution early, especially before assessing the performance of the new Senate.
Above all, those pining for an early double dissolution need to remember that while the Senate can put the bullets in the double dissolution gun, it is entirely the Prime Minister's choice whether and when he fires the loaded gun.
Overlooking the event of November 1975 (which as always is the exception to the rule),
government's are never forced to a double dissolution. It is a government's choice to call double dissolution, and it is the government's choice to do so at a time most advantageous to its chances of re-election.
Given the tough budget it introduced in May, the Abbott government shows little sign of firing the gun to start a double dissolution at any time in the near future.