Don’t forget the Senate! And remember Westminster!

Independent Senators are reminding the two contending PM candidates in Australia not to forget the second chamber. In particular, this could be a problem for a potential Labor minority government.

Labor does not control the upper house, which has 32 Labor senators, 37 Coalition, five Greens, Senator Xenophon and Senator Fielding. If Senator Xenophon, Senator Fielding or the Greens join the Coalition in a vote, they can negate government motions.

The new Senate, with the expected nine Greens senators holding the clear balance of power, does not sit until July 1 next year. (The Australian.)

Does any other country have a legislature in which newly elected members do not take office for nearly a year?

Meanwhile, Liberal-National Coalition leader Tony Abbot has slammed Labor leader (and current PM) Julia Gillard for her willingness to allow the independents in the House to see government briefs prepared by Treasury.

“Our system depends on public servants being able to give free, frank and fearless advice to government,” he said.

“And that means the advice has got to remain confidential, and what we have got here is a desperate Prime Minister trashing the Westminster system in an attempt to hold on to power. It’s a measure of this government’s complete lack of respect for our system that they are doing this.” (same source as above quote)

Some folks might wonder if the very presence of an elected Senate is not already contrary to Westminster principles…

With all seats apparently settled, the House balance now stands, as expected, at Labor 72, Coalition 73, Green 1, independents 4. (See ABC Elections.)

10 thoughts on “Don’t forget the Senate! And remember Westminster!

  1. > “Does any other country have a legislature in which newly elected members do not take office for nearly a year?”

    Indeed, odd. Odder yet that (a) the <12 month time lag lets the Prime Minister choose “which” Senate – old or new – to put Bills to, depending on which has the more favourable numbers; (b) Australian voters have repeatedly (1973, 1977, 1984, 1988) rejected efforts to change the Senate’s fixed changeover date, usually in response to “No” case arguments that this will “weaken the Senate” and “make it easier for the Prime Minister to push through his [sic] legislation.”

    (Now you see why I am not optimistic that the UK AV referendum has any chance of passage.)

    Even odder yet: The High Court ruled in 1907 that the Constitutional requirement that the “election be held” in the 12 months before the 1 July changeover means (a) the election can continue past the changeover date if necessary to conduct a re-run of a poll that was invalidated, but (b) writs for the election cannot be issued before the preceding 1 July, because the “election” begins to be “held” when writs are issued. And since the Cwlth Electoral Act fixes a five-week period between writs and poll, this means in turn that a Constitutional requirement that a half-Senate poll to replace the 1 July 2011 crew be held from 1 July 2010 to 30 June 2011 is interpreted to mean in practice that the poll cannot be held before mid-August 2010 but can, if necessitated, be continued or re-rerun after 1 July 2011. But that’s “strict and complete legalism” for you.

    On the topic of Senate obstructionism, here’s a contribution from someone who would know:

    ‘TRADITION dictates that the party that wins the most seats in a knife-edge election has the first chance to govern, says former PM Malcolm Fraser…’

    […]

    “Tradition has always had it that the leader of the party with a majority of seats will be asked to form government.

    “If the number of seats were equal, then… precedent suggests that the incumbent will be given the first opportunity to form government. This Australian tradition is derived from a much longer British tradition.”

    – Cameron Stewart, “Power to the incumbent if seat count tied, says Fraser,”
    The Australian
    (25 August 2010), p 1.

    Uh, I’m not sure that Malcolm Fraser (whose other legacies include Robert Mugabe’s presidency and the taxpayer-funded, HECS-free Australian Institute of Sport) is my personal go-to guy on the question of what’s constitutionally traditional. Why the incumbent? Why not the side with more popular votes… or is that “too American”? (hahahahahahaha….)

  2. According to Antony Green, the practice of the prime minister resigning after losing a general election is fairly recent. The older practice, which applies now, is that the incumbent prime minister has the right to meet the parliament. In the event, unlikely in my view, that the opposition leader secured the support of 76 MHRs, I’d imagine that Julia Gillard would offer her resignation to the governor-general but she could choose to test the opposition leader’s claims. That’s been the practice in recent Australian cases.

    I actually disagree with Green that an outgoing prime minister gets to advise who the governor-general should call for. The logic is inescapable. Someone must answer to the parliament for every advising tendered to the governor-general. An outgoing prime minister, by definition, cannot be responsible for the advice they give. An outgoing prime minister is, for that matter, a private citizen rather than the governor-general’s chief adviser. Responsibility has to fall on the new prime minister.

    In a contested case like this, the governor-general would usually follow precedents and seek written advice from the opposition leader that the opposition has a majority of MHRs and can assure the stability of the government.

  3. Interesting that they include “voided elections” among the reasons leading to “by-elections”, since as a pedantic const lawyer I would insist that these are “supplementary elections”, not “by-elections” – there never was a casual vacancy in the first place, just unfinished business from the general election. Legally they are in the same category as polls being cancelled because a candidate dies before election day, and I seem to recall that their timing is regulated either by the Electoral Act or by the Court of Disputed Returns – not by the Speaker of the Reps as is the case where an MHR does get validly elected, does sit, but then vacates.

    C/f the Senate where a candidate’s disqualification leads to a recount of votes (Wood 1988, Hill 1999) – not to a fresh poll, but also not to the Section 15 “appointment by State Parliament subject to party’s veto” procedure.

    HOWEVER, I fully recognise that when you’ve lost the Cwlth Parl’y Library Research Service (and the 99% of the media who talk about “the 1996 Mundingburra by-election” or “the 1996 Lindsay by-election”), you’ve lost the battle.

    Why this matters is that, as a matter of constitutional principle, there is a big difference between a chief minister who won (or assembled) a parliamentary majority after a general election, but subsequently lost it, versus one who never in fact enjoyed the confidence of a working majority of validly-elected MPs. Thus Goss in 1995-96 was in the same position, not as Greiner in 1991, but as Kennett in late 1999, even though for eight months it seemed as if Labor had won Mundingburra and had a 45-44 majority.

  4. … That difference is, a premier/ PM who had confidence but loses it is/ should be entitled to request/ demand a dissolution and fresh election, whereas a PM/ premier who accidentally enjoyed an undeserved majority does/ should not. If you haven’t enjoyed a working majority since before the last election, you do not pass go and do not collect $200, as Robin Gray had to be reminded in 1992.

  5. I agree that once a first minister has gained the confidence of the House, they are entitled to advise a dissolution when they lose it. The authorities all agree on that point. Most of them seem to say, however, that the request should be refused if an alternative government can be formed without a dissolution.

    There also those Canadian precedents where a dissolution is denied to the sitting prime minister and then granted to the opposition leader. The prime ministers sought a dissolution after losing confidence and was quite properly refused. The governor-general then called for the opposition leader, who in turn was defeated in the house but was then (quite properly I might add) granted a dissolution. A fresh election would be interesting, but with the current opposition leader as caretaker prime minister it would perhaps be a tad alarming.

    Personally I tend to agree with Suazzoprodi on the virtues of the Swedish rule that a government can call more or less unlimited early elections, but the new parliament serves out the term of the old parliament.

  6. I notice the ABC is now reporting the state of the parties as:

    Labor 73 + Bandt
    Coalition 73 including Crook

    The Coalition had a brief frisson of excitement yesterday when they appeared, for a short time, to have won the two party preferred vote.

  7. Agreed on the Swedish rule, although one needs to decide what to do about the possibility of “early” elections very late in the term, ie (a) ban them (c/f the double dissolution timetable under Aust Const s 57), (b) allow them without their affecting the “scheduled” election, and rely on political common sense (I understand this is the Swedish rule?), or (c) allow them and cancel the regular general election if “too close” (is this the Scottish Parliament rule?).

    As to who should be caretaker PM between two closely proximate elections, common sense would seem to suggest the HoS may as well keep the incumbent PM in place for those few weeks, if only to avoid even further disruption.

    Perhaps, rather than the newly-elected House voting first on the incumbent and then, if s/he is defeated, voting on the Opposition Leader (and if s/he loses to, presumably on any other MHR whose name is moved and seconded?), the incumbent should be voted on last, to avoid this…

  8. The Swedish rule seems to be that a parliament cannot be dissolved within 3 months before a regular election or for 3 months after an early election, but the sitting prime minister stays in office.

  9. I’ve usually read the Beaconsfield (Disraeli) was the first Prime Minister to resign after losing an election without meeting Parliament. The reason for the change is often overlooked. In the 1840s the Tories split due to a backbench revolt, but for two decades afterwards the Whigs never won a majority on their own. Between 1846 and 1868 every Parliament was, using anacronistic terminology, hung. The absoption of most of the Peelite faction into the Whigs/ Liberals, and the evolution of mass parties with the expansion of the electorate, put an end to this period.

    I can’t think of a case in UK politics where the incumbent PM has resigned immediately after an election producing a Parliament where no party has a majority. People seem to have a tendency to overstate the extent to which Parliaments in which one party clearly has a majority, and the conventions associated with those types of Parliaments, are the norm.

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