Early late election in Australia

Julia Gillard just announced a federal election for 14 September. This raises a number of slightly troubling issues, not least the religious significance of the day for Australian Jews. She will ask the governor-general later today, to agree to issue writs for the September date. I’d be surprised if the governor-general does not at least state that she retains power to appoint a different prime minister in appropriate circumstances and to accept different advice on the election date. While there are precedents from Queensland and New Zealand for very long pre-election announcements, they were both by governments with a parliamentary majority in their own right.

95 thoughts on “Early late election in Australia

  1. Chris @44:
    “Tasmania has fixed elections, though…”

    Tasmania is one of the last three Australian jurisdictions (along with Qld and the Commonwealth) that has a flexible maximum term for its lower house. (Its Legislative Council does have fixed terms, though).

    See Antony Green here http://www.tinyurl.com/b22qten (answering a doozy of a comment by one [K]eri [H]uxley, who is also incidentally a former mayor and NSW Liberal State candidate).

    Other Chris @35:
    “In Canada and its provinces, the idea of a election every four years has become strongly entrenched in recent years…”

    Good on them but when the constitutional maximum term is five years, limiting this to a fixed four is not a great imposition. (Unlike most other federations, Canada’s national Constitution specifically caps the length of a state/ provincial legislature. Ireland’s and India’s are the only other examples off the top of my head where a national constitution limits the maximum time between elections for sub-national bodies.)

    Whereas Qld and the Commonwealth have only three-year terms, which are already short, and outlyers in world terms now that Sweden has reversed its 1983-98 experiment and restored quadrennialism.

    Generally:

    Perhaps we tend to confuse two things that are conceptually distinct, although often found (or absent) at the same time:

    (a) a constitutionally fixed term of office (ie, expiry and changeover date)

    (b) constitutional constraints on election dates (ie, a narrower window than “must be a weekend or public holiday”).

    We tend to confuse the two because the USA has both while UK, Canada, France have neither (although the Brits do seem to have settled on PrMs timing Commons elections to coincide with local elections in May, as a matter of custom rather than law).

    However:

    I. “Elections for the Assembly must be held on a Sunday not less than 46 months and not more than 50 months after the previous election” (ie, something like Germany’s rule but without the option of dissolution) would have (a) without (b). The term would be more or less fixed but there would be a reasonably wide window to choose the polling date.

    (The Australian Senate semi-approximates this: the changeover date is constitutionally fixed – 1 July – but the actual poll can be held any time within the 12 months beforehand which sometimes leads to a delay of 3 to 9 months while the “lame duck” Senators hold on and the PrM can decide to rush or delay Bills depending whether the old or new Senate seems more congenial.)

    Conversely,

    II. “If the Head of State dissolves the Assembly at any time, an election must be held on the first Allowable Election Day at least 28 days after the dissolution. For the purposes of this present Article, an Allowable Election Day means the first Sunday in the month of March, June, September or December.”

    – would have (b) without (a). Early elections could be held, even just one or two years into the term, but the executive would have a severely constrained menu of possible dates to choose. If Sunday 3 March is no good, then they have to wait until Sunday 2 June.

    (Some unions, including one or another I once belonged to – possibly the NTEU but Google is no help – have, or had, a rule like this. The union paid to run polling booths so any by-elections had to be deferred until either May or August: May every third year was the general election. Casual vacancies were filled by council appointment until the next regular election season rolled around – of course if it wasn’t May in a general election year and there were no appointees warming vacated seats, no poll was held.)

  2. I was under the impression that the Bartlett government had passed fixed terms before the 2010 election, but I see that they failed to do so and simply chose to hold the election on what would have been the fixed date had the proposal passed.

  3. Alan @53;

    No, no, that can’t be right. There’s no way David Cameron would introduce novel European/ American tinkerings into a system (flexible terms, 5-year maximum) that has served Britain well for 703 years… Next you’ll be telling me that he’s considering elected police commissioners, direct primaries for Tory candidates, and other Jacobite heresies that The Chartists Were Not Fighting For.

    (-;

  4. Err, Jacobin, not Jacobite.

    Seriously, though, I’d question whether the UK has what I so carefully described as “constitutionally fixed term of office” since the Afriyie Govt can simply amend or repealed the Fixed Terms Act like any other piece of legislation.

  5. If it’s the case that the Fixed Term Act is not part of the constitution then at any moment Elizabeth II can emulate Her predecessors of glorious memory and send that bounder Miliband off to the Tower at will.

    The UK does have a constitution, it is just not codified or entrenched. And that constitution does fix the term of the Parliament.

  6. Err, good point. It’s as entrenched as anything else is in the UK. My point re Australia still stands.

  7. Norm Geras on the Yom Kippur issue http://www.tinyurl.com/a6lfq9k:

    ‘… Though observant Jewish voters have not been disenfranchised, they are denied two other benefits of participating in election day activities. The first is because they are unable to canvass and otherwise help get out the vote. The second is a more nebulous thing perhaps, but important nonetheless. It is feeling part of a symbolic (as well as instrumental) national event, in which the democratic will of the country is being expressed.

    An Australian Jewish reader – whose email I quote here with permission – has written to me to say, ‘My decision is not to vote in the alternative ways and to treat this decision as an act of civil disobedience. Consequently, I will not pay fines and [will] defend my decision at the point when the fines constitute a legal debt’….’

    Note that the legislation does not make failing to vote an offence of strict liability – only if done (well, not done) without sufficient excuse – and a religious objection is 99% certain to qualify. In fact, if federal law did not allow a religious exemption from voting, it might, just might, run foul of one of the very few rights guarantees in the Commonwealth Constitution (s 116).

  8. Geras’ argument is flawed, though, because observant Jews can’t canvass or get out the vote at ANY general election, not just this one. Unless, of course, by ‘observant Jews’ he means ‘Jews who choose to observe Yom Kippur but not other Shabbatot.’ While it’s understandable that (insert word for those with no objection to campaigning on most Saturdays) object to having an election on the holiest day of the year, that is not what ‘observant Jews’ usually means.

    It is true that an election called for Easter Sunday in a place with Sunday voting would be objectionable, and even Easter Saturday would likely cause an outcry (though the traditional AFL games might be part of that). It’s not possible to find a day where everyone can fully participate in the process in a pluralistic society. The elections are either a weekday or some faith’s sabbath. Even if they’re on a weekday public holiday, emergency workers will have to work, and many businesses will pressure workers to work. I think given the opportunities to participate in the process for the previous give weeks, the postal ballot, and the long standing custom of Saturday elections, and claimed ‘religious’ objection to following the mandatory vote law should be rejected.

  9. > “Unless, of course, by ‘observant Jews’ he means ‘Jews who choose to observe Yom Kippur but not other Shabbatot.’”

    Given how many Australian journalists are lapsed Catholics, perhaps there’s some subconscious influence on their reporting from the Catholic rule that weekly Mass attendance is the ideal but attending at least once a year is mandatory – with most “not-very-observant-but-not-wholly-lapsed” Catholics discharging that duty on Christmas Day or Easter Sunday while spending “any given Sunday” otherwise surfing, fishing or at the footy.

  10. The exact equivalent of calling an election on Yom Kippur is calling one for Good Friday or Anzac Day. Both are unthinkable. According to Julia Gillard the day of the AFL Grand Final is unthinkable. The question then, is why a day of equal significance to the Jews is thinkable.

    If you were drawing rational state borders in Australia you’d use the Rugby League/Australian Football League line to divide NSW from adjacent areas of Victoria and South Australia. I’d ask why the AFL Grand Final is unthinkable but the grand final days for the other football codes are thinkable, but my neighbours might found out I asked and become unhappy.

    The media consensus is that, like many decisions by this prime minister, it was not canvassed widely enough beforehand, the date of Yom Kippur was not taken into account, and the explanations since the announcement are trying to cover for the lack of preparation.

  11. Where is the rugby league/Australian rules line? Somewhere between Canberra and the Victorian border?

    Does the North Shore get it own state because they play rugby union?

  12. Chris

    You have obviously missed out on profound social changes since leaving the country. Melbourne has its own team in both Rugby codes and soccer is now the prevailing code on the North Shore.

  13. The Barassi Line http://en.wikipedia.org/wiki/Barassi_Line is the traditional dividing line between league and Australian Football supporters.

    Obviously the line is not so clear today. Soccer is growing in popularity everywhere. Rugby Union has professional teams 4 states and the ACT. League has a team in Melbourne (though I do subscribe to the theory that Melbourne could support any sport that has a Melbourne team) and some support for a team in Perth if the NRL expands again. The AFL now has at least two teams in every mainland state. Though how well supported the newest NSW and QLD teams are by locals as opposed to expats is up for debate.

    As always, the only national sport is cricket.

    • Let’s not forget that there is an Australian Baseball League, and, yes, there is a team in Melbourne. I suspect it could be a while longer, however, before the date of the ABL championship would join the set of “unthinkables.”

  14. I’ve actually never been to Australia, but my dad spent his early childhood on Sydney’s North Shore. My love of Australian sport, but also lack of knowledge, comes from being exposed to them only through ESPN late night and what little wikipedia says

  15. Chris @44: “At some point does the “unexpired term” rule cut off? For instance, if a government were to fall 6 months before elections are due… would there be an election for the remaining 6 months, or would that be for a full term?”

    Good question. Last time I looked, in Scotland, an early dissolution less than 6 months before the scheduled expiry date pre-empted the latter.

    On the other hand, I understand that in Sweden there is no minimum legal limit. You could have an early election in July or August 2014 and then the regular election as mandated by the constitution on the 14 September (what is it with that date?!). Well, Greece managed something similar in 2012 (and look at the UK in 1974, Ireland in 1981-82, and Canada most years since 1945). Costs money, though.

    On the third hand, I suppose a polity could adopt a rule that no early dissolutions are allowed within a set time before the House’s term expires (c/f the Australian Constitution’s s 57 that a double-dissolution cannot be held in the last 6 months of the House’s term), just as France has a rule at the other end that the Assembly cannot be dissolved less than a year after the previous election.

    Either way, there’d probably be consensus that having two elections a short time apart (eg, within the same six-month period) is undesirable.

    If pushed I would probably opt to frame something like “the regular general election is held on schedule UNLESS (a) a special election is held less than 6 months before the regular election date AND (b) the House has resolved, by two-thirds majority, at some time more than 60 days before the regular election date, that the regular election be dispensed with.”

  16. @67

    I tend to agree. I think the Swedish rule is essentially self-correcting. There would be a large electoral cost to a premier who, for instance, forced 3 elections inside 6 months. The electorate would regard that as more like carelessness than misfortune.

    You’d almost question if any rule at all is necessary beyond ‘early elections return parliaments that serve only the unexpired term of their predecessor’. It’s hard to see the motive for dissolving in January if your new term will end in March.

  17. The media consensus seems to be that there will be a leadership challenge during the next parliamentary sitting begins on 11 March.

    To paraphrase Labor’s campaign slogan in 1972, it’s only a matter of time. Politically, Julia Gillard is a dead woman walking. The Prime Minister may dismiss the latest polls, but the trend is clear. With a trio of polls all pointing in the same direction, they spell her certain demise.
    If it doesn’t happen at the hands of her colleagues, it will happen at the hands of the Australian electors in September. Her colleagues may talk of it being a communication problem, but it’s much more than that. The Prime Minister is too low in the esteem of Australian voters to survive. Even her advantage over Tony Abbott among women voters has been eroded away.
    Some Australians might admire her steely strength and her negotiating skills, but her propensity for political stumbles have seen her repeatedly fall flat on her face. The September election date and the resignation of Nicola Roxon and Chris Evans were just the latest of them.

    The polling released over the weekend is catastrophic.

    I suspect that political parties here are now going to be very, very reluctant to remove prime ministers from office. That may be the total legacy of Julia Gillard.

  18. Didn’t a large number of ALP MHRs say that “they’d rather be in opposition than serve under a Rudd premiership” at the last challenge?

    Have their opinions changed, or is the challenger to be someone other than Rudd?

  19. Chris, I’m at a loss to read what’s going on.

    I would guess that a delegation like that at the end of Hawke’s leadership, for that matter like the delegation in black at the of Hayden’s leadership, will visit the prime minister and then visit Kevin Rudd. Before the second Keating challenge many MHRs claimed they would not accept Keating but that all went out the window when Hawke’s leadership collapsed.

    Apart from the missteps since the election announcement, I think the body blow is that Deputy Prime Minister and Treasurer Wayne Swan’s own standing has collapsed since it was revealed the new mining tax collected only $126 million in its first 6 months. That is about a tenth of the Treasury estimate for revenue from that tax and essentially means the government no longer has the fiscal room to do anything. The forward estimates on spending include spending 3 billion in mining tax revenue which is just not there. The mining tax has pretty much ended Swan’s prospects in politics, although neither he nor Gillard seem aware of it. Swan was crucial in last year’s challenge where the tactics were to force Rudd to challenge and then use rhetorical carpet-bombing to (almost literally) destroy him. When was the last time outside Australia that a cabinet minister called a former prime minister from their party a psychopath?

    Gillard came in saying she would resolve the refugee issue, the emissions trading scheme and the mining tax. She has ‘resolved’ the refugee issue by adopting deterrent measures harsher than Howard’s. She ‘resolved’ the ETS by promising there would be no carbon tax and then introducing one. She resolved the mining tax by giving the big miners concessions that gutted the tax and promising spending based on mining tax revenue does not exist.

    I don’t exclude the possibility that Gillard will accept the inevitable and resign. I also don’t exclude the possibility that Gillard will try a Joh and seek to retain office after losing the leadership.

  20. I guess Gillard could try to get crossbenchers say that they want her to remain Prime Minister until September elections, and that they would not have confidence in a government held by anyone else. She’d have to somehow convince them that doing so won’t hurt their election chances, which she may not be able to do.

    Would their be any precedent/constitutional room for Ms Gillard to resign the party leadership effective 15 September and for the party to elect a new leader to head the campaign and essentially be its “PM candidate”, without immediately dethroning her from the premiership (as doing so would seem almost certain to result in early elections)?

  21. I cannot see any cross-benchers willing to leap, like rats in reverse, aboard a sinking ship.

    Once they finally move the caucus is not going to want Julia Gillard any where near the Labor government in any shape or form or for any reason. The opposition leader in WA has asked her not to visit the state during their campaign.

    She can hardly be asked not to visit Australia while she remains prime minister.

    Retaining her until 15 September would merely achieve the worst of both worlds, a dead weight prime minister and an unresolved leadership contest. There would also be many more than one member of caucus simply unprepared to accept any assurances from Gillard as to her future course of action.

    At this stage it would be a miracle for Rudd, even with his personal popularity, to save the government. He can moderate the landslide and can start rebuilding a party free of the factions that destroyed his first government.

  22. The Greens just ended their alliance with the Labor party. They have promised confidence and supply until 14 September. Milne said the leadership is a matter for Labor and they will attempt to work with whoever is the Labor leader. A couple of ministers gave the shoot-the-messenger response which is about all this government has left.

    • What are the consequences of “ending the agreement” while still giving confidence and supply?

      I do like this quote from Sen. Milne: “the Greens will not add to the instability that Labor creates every day for itself'”.

      This is also good: Industry Minister Greg Combet said Senator Milne was engaged in political “product differentiation”. Exactly what political scientists expect of separate parties engaged in post-electoral cooperation! But my question remains: given that the Greens only selectively supported government legislation before and will continue to offer confidence and supply after, is this announcement anything other than reminding voters that they are a separate party? I think not.

  23. Now that’s ironic. Last time a Labor Government collapsed mid-term, ie Nov 1975, Malcolm Fraser (a Member of the House of Representatives) announced how the Liberal and National Senators would be voting. Now it’s a Senator, Christine Milne, announcing how the Greens’ Members – err, Member – of the House of Representatives will be voting.

  24. I doubt the Greens will start voting with the Coalition in either house. It seems to me more like a signal to the ALP about getting their act together.

    There are 4 MHRs who belong to neither major party. Jatter has never had an agreenebt with the government and said in 2010 his decision would have been different if Kevin Rudd were leader. Andrew Wilkie from tasmania ended his agreement after Gillard reneged on poker machine reform. The Greens argue that Gillard has reneged on the mining tax. Tony Windsor says the leadership is a matter for the ALP. Oakeshott has not commented as far as I know, although recently he’s been criticising the government for not acting on the agreement for an integrity commissioner.

    The prospect of cross-bench support for the Gillard leadership looks pretty thin to me.

  25. Five cross-bench MHRs: Bandt, Katter, Oakeshott, Wilkie, Windsor.

    The fact that Tasmania’s HR delegation includes the names Wil(l)kie and Franklin – like the fact that Tony Abbott, well-known as a conservative and a monarchist, was denied the Prime Ministership by MPs named Oakeshott and Windsor – proves my oft-repeated point about Psephos looking down on us mortals from Mt Olympus and laughing.

  26. Psephos laughs even harder when I try to count. The student union where I was council chair amended their standing orders so that someone else could count the votes because I always got it wrong.

  27. Was there actually a Greek god called Psephos, or is that just a psephologists’ and psehophiles’ inside joke?

  28. Interestingly, St Chad’s Day is quite often primary election day in Texas, or very near to it (when they’re not delayed by court orders over racially gerrymandered maps, which happens at least once a decade, they’re the first Tuesday in March), and occasionally the fates conspire to make that day “Super Tuesday.”

    Psephos laughs at us even when we ignore him for a Christian saint.

  29. At risk of getting a bit hermetic, causing you all to turn mercurial, Hermes/Mercury was the god of messages and thieves, among other things. A lot of Pompeii graffiti associates him with elections in the second role.

  30. Romans stealing elections? What had the Empire come to by AD 79 if an honest politician couldn’t simply hire enough voters to get himself elected?

    My opinion about Rudd has always been biased based on the fact that he seems a hell of a lot better than Gillard and because my wife lived in his electorate before moving to the States. (If I had visited her a few months on either side of my first visit to Australia, I probably could have met him at one of the barbecues he threw for the electorate before becoming PM)

    But as a Rudd preferrer (I can’t really call myself a supporter since I have no vote), is there any real chance that he could kick Gillard out and at least fight to keep Labor’s last wicket?

  31. @MarkR

    I’d be astounded if Rudd does not regain the leadership before the election. Beyond that I just don’t know.

    Thing are sufficiently grim for the Gillard leadership that I wouldn’t be completely astounded if she were gone by the end of the week. I am not quite as bad as a friend who is compulsively listening to radio news expecting an announcement at any moment.

  32. You know you’re in deep doo doo when the ABC’s flagship current affairs program intercuts your appearance at a union conference with the this.

  33. The immediate parliamentary consequences are nil.

    One reason for continuing confidence and supply is that a general election before 3 August would require a separate half-Senate election before July 2014.

    Were Rudd to become Labor leader now he would face significant pressure to call an early election. I suspect he wants the leadership change when he can call the general election and the half-Senate election at the same time, but events are moving so quickly I’m not sure he will get that luxury.

  34. Alternatively, if Rudd is really a calculating B’Stard, is to bring down the government now and have an House-only election. If Labor pulls out a miraculous win, good for them. If Labor loses even with Rudd, which would not surprise me in the slightest, then Abbot is forced to face a Senate only election in first year where Labor can make a second effort.

  35. What would be the electoral consequences of a general election held in April followed by a half Senate election in July (or even the announced 14 September)?

    I assume that at this point it will take St Chad giving the ALP a miracle to return them to government, and at this point it’s trying to reduce the losses and have a winnable 2016 election. This seems to be one of those elections where a “drover’s dog” could lead the Opposition to victory.

    Would we likely see a French-style scenario, with the elections so close together, where the second election generally solidifies the position of the winner of the first, or would it be more likely to function as a “giant by-election” and ironically give Labor its strongest position in the Senate in years?

    I must say, three-year election cycle is amazingly fast. Rudd was elected Leader just over 6 years ago, was elected PM just 5.25 years ago, and was deposed just 2.6 years ago. Gillard won the 2010 election was just two and a half years ago, and survived Rudd’s first challenge almost exactly a year ago. Even in the US, with bi-yearly House and third-Senate elections, we don’t have anywhere near that much turmoil (or even the potential therefor).

  36. There is simply no way to do it. Once the House election is called the caretaker conventions apply and the governor-general would not be bound to accept advice on the half-Senate election until after the general election is complete.

    The governor-general cannot call an election in advance (and in any case would need the co-operation of the state governors whose premiers would probably advise them not to comply with the governor-general’s request) particularly when it is likely that prime minister chosen at the general election will tender different advice. Once the writs issue the timetable is fixed by the electoral act.

    Senators elected at this election will not, in any case, take office until the end of next June. It would be a pointless exercise.

    I would imagine that trying to drag the electorate to the polls twice for such obvious partisan advantage on such a weird timetable would result in electoral oblivion. Even calling a House election on a timetable that required a half-Senate election within a little more than a year would generate an enormous backlash, especially in light of repeated Labor promises that the parliament would see its full term.

  37. Catholic abdications not good for the Anglicans; Calvinist abdications (like atheobaptist foreshadowed dissolutions) not good for the Jews. Here’s Eugene Volokh’s report, and take, on the situation in Holland: http://tinyurl.com/cnqefkh

  38. I think both the House of Orange-Nassau and the country as a whole would be surprised to hear about a Calvinist abdication. The Dutch monarchy is so deeply secular that the sovereign is ‘inaugurated’ in a clergyless and almost crownless ceremony.

  39. True, Alan, but I wonder if that memo has reached Northern Ireland yet. (The Thatcher Govt deliberately chose to downplay the tercentenary of the 1688 Glorious Revolution for fear of inflaming sectarian tensions over the water). Whether the Orange Order, the Orange Free State, or indeed any number of Orange Counties throughout the USA, the Dutch royal house was historically associated with Calvinism.

  40. Like the Catholic papacy, the Dutch monarchy has also faced controversy under the previous incumbent about service in the German Army during WW2, and under the new bloke about links to the Argentinean junta in the 1970s: http://www.tinyurl.com/c82ay7n

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