May test case for prorogation in Australia?

The backwash from the Gillard frolic continues. The opposition has put a motion of no confidence on notice for the budget meeting of the parliament in May. This motion will not require a suspension of standing orders and therefore will not need an absolute majority.

I’d be astounded, (but as we all know I’ve been astounded before) if the government tried to prevent a debate on this motion. They are unlikely to have the numbers in the house to vote against debating the motion, which means if they really do not want to have the motion debated there is always the possibility of seeking a prorogation. Prorogation would be dangerous because it would terminate the budget debate and the government needs to pass the budget before 30 July.

I hope the governor-general would reject that advice, but at least it would be a test case for whether the governor-general is a benign mentor or a mechanical idiot so at least the cause of political science will advance.

In the wake of Thursday’s chaos a number of senior ministers have resigned. They have been replaced by relative unknowns whoa re thought to be deeply loyal to Julia Gillard. The government’s electoral standings continue to decline. In today’s Newspoll the 2PP is 58/42 to the Coalition.

15 thoughts on “May test case for prorogation in Australia?

  1. If the govt fails to pass the budget, aside from the political embarrassment could there be a US style shutdown?

  2. Almost certainly not. The Governor-General would dissolve as many houses of the Federal Parliament as she constitutionally can. This always includes the House of Reps. It may include the Senate if there are any deadlocked bills (as defined in Const s 57) stockpiled that could justify a double dissolution trigger. However a DD cannot be called in the last 6 months of the House’s term, which is three years from its first meeting after the last election. The election was in August 2010 – I think parliament re-assembled in September (not the usual formality as the hung House meant Gillard needed to show she could win a vote on the floor) – so the window to dissolve both Houses has probably just passed around now.

    However, even if the GG did only dissolve the House, the Senate would probably pass whatever budget the newly-elected govt proposed. At the moment, it’s the numbers in the lower house, not the upper, that are wobbly for the Labor Govt – an ironic reversalof the Nov 1975 Whitlam dismissal.

    (I’d recommend Antony Green’s blog for more details – see MSS’s sidebar).

    Either way there won’t be a Clinton/ Gingrich-style shutdown.

  3. There cannot be a shutdown because the governor-general would dismiss the government and send for the leader of the opposition if the government did not have supply. I would hope the governor-general would do with this on notice to the prime minister.

    I disagree with Tom about dissolving the house. Let’s imagine, arguendo, the motion of no confidence is successful. The prime minister must then resign or be dismissed. Rather than dissolving, the governor-general would then seek a government that could pass a budget.

    That would most likely be an Abbot government, although it is also just possible it could be a Rudd government. Relations between Julia Gillard and the cross-bench are now probably too fraught for it to be a Gillard government.

    Equally I would hope the new prime minister would not advise a dissolution before 30 July which is the earliest time that an election for both houses can be called.

    The great problem with 1975 was that the governor-general dismissed without notice and had actually arranged, without the prime minister’s knowledge, for the leader of the opposition to be waiting at government house so he could be commissioned as prime minister immediately.

    It really seems to me that a parliamentary constitution needs to specify what happens when a motion of no confidence is moved and what happens when it is passed. No confidence should probably be hard to move, but then should take priority over most other business.

  4. I don’t disagree with Alan – I was thinking of the end-game where a “baton change” in the lower house isn’t an option to break the deadlock (either because the govt has a secure majority as in 1975, or conversely because the cross-benchers are so divided or recalcitrant that the current House is irrevocably hung, or – again as in 1975 – if the two chambers* have opposing majorities). Alan is focused on the near-future, where it’s conceivable the Three Amigos (or two plus Katter) might back Abbott and bring down the Curt[a]in in Gillard.

    * Also USA 1994 if one counts the presidency as a de facto third chamber.

  5. One model would be that a no-confidence motion needs either:
    (1) the signatures of 10% of Lower House members, barring any who’ve already signed such a motion in the current calendar year, plus 3 days ‘ notice; or else
    (2) if signed by an absolute majority of members, voted on immediately.

  6. I really should have said ‘…the prime minister must resign, be dismissed, secure a fresh vote of confidence or advise a dissolution.’

    A prime minister who has lost the confidence of the house is entitled to advise a dissolution, but the governor-general is, it seems to me, bound to reject that advice if an alternative government can be formed. The weird Australian electoral cycle with the senate may be good reason for the governor-general to decline to grant a dissolution that would take the two houses out of sync. Synchronising the two houses was accepted as grounds for a dissolution in 1983, but only after a second submission by the prime minister.

    The fixed term amendments in the Australian states generally provide that there can be no prorogation once a motion of no confidence is passed. I’d really, really prefer that to also say there can be no prorogation once a motion of no confidence is proposed.

  7. The way I would handle motions of no confidence is to limit them to fixed days during the year, or impose a waiting period of 1-2 months after one is voted on for the next one to be voted on. This could be coupled with an internal parliamentary provision that the opposition leader could always block a no confidence motion, to prevent the government frm introducing dummy no confidence motions that they are certain to win in order to reset the clock.

    What either variation would mean effectively is that the opposition could be guaranteed an attempt to bring down a weak government within a couple of months at the most, but the legislature would not have its time taken up with frivolous no confidence motions. I really can’t think of a better way to do this. And its normal to restrict elections to certain time periods or even fixed dates on the calendar and I really can’t see an argument for treating confidence motions differently.

  8. Ed @7, I suppose that’s functionally equivalent to giving the Presiding Minister a three-month (say) term with unlimited re-election (or a large number of re-elections, ie 24 in 8 years!).

    I can see the logic behind this but also fear it might produce the worst of both worlds – lame ducks who are known by all disliked by the legislature but can’t be removed right away (Dubya in 2007-08, and I’m thinking of Gore Vidal’s essay “The Second American Revolution” where he compared the two North American JCs of 1979 – Joe Clark was gone in weeks, Jimmy Carter soldiered on haplessly until early 1981), yet who also have to worry about shifting legislative numbers.

    Unlike a popular election, where opinion polls can get it wrong, the numbers in a legislature are usually predictable with some certainty, barring the occasional Rob Oakeshott, Elijah Harper or Chuck Cadman in those cases when it comes down to a single vote or two.

    The problem is we have nearly a null data set. Most actually existing executive Presidents are either removable only on impeachment for criminality or insanity, and the remainder who are removable (South Africa, Nauru, etc) are removable at will. Ironically, the best empirical examples would be many US States until the mid-nineteenth century, with Governors chosen by the legislature for fixed terms, but the quite different nature of the suffrage, the media and the party system might make it difficult to extrapolate from these how three-monthly terms might work today in the White House or the Elysee.

    In drafting terms, you’d be looking at something along the lines of…

    “The President’s term expires at noon on:-
    (a) the first day of [March, June, September, and December] in each calendar year; or
    (b) the [sixty-third] day after the last ballot for President was held,
    – whichever is later.

    [This is so that if, say, FDR dies on 14 February and Congress elects Truman to replace him a few days later, Truman doesn’t have to stand for re-election again only a week or two after that.]

    “The legislature shall take a ballot to elect a President if and once either:
    (a) the President vacates office or is removed upon impeachment, or
    (b) fewer than [ten] days remain until the President’s term is due to expire.”

  9. I think Tom Round is overreacting to my proposal. One or two months is not the same as three months. Legislatures go on break for one or two months every year.

    If the requirement is minimun amount of time after the previous confidence motion, that is not the same aa a fixed term, since a confidence motion can be brought any time after the waiting period expires. Under current practice, most days on the legislative calendar are controlled by the government, so its not like confidence motions get instant consideration. Under my proposal they could get instant consideration, since there is a safeguard against frivolous and/ or repetitive confidence motions.

  10. Hi Ed, sorry if I’ve overreacted, I’m not wholly contra but can think of arguments against it. One of the dangers in the “institutional design” province of pol sci’s vast empire is that reforms intended to get the best of both worlds can instead end up falling between two stools – that crossing lions with tigers gives you tigons instead of ligers (or is it the other way around

    Maybe I’m marinated in the Australian view that the caucus/ party room can sack its leader at any time, with the only delay being few days needed to convene a meeting. In the Qld 1987 case (Ahern vice Bjelke-Petersen), all but one of the National Party’s MLAs had signed a letter/ petition addressed to the Governor so they didn’t even need a formal spill ballot. Granted, if the reason for loss of floor majority was cross-benchers rather than caucus the Head of State might insist on a formal vote or resolution.

    By contrast, Brits and Canadians are more accustomed to having the leader elected or removed by a large convention of party branch delegates or by a postal ballot of members, which takes longer to organise because of the numbers. While it’s not identical to three-month terms, it has a similar effect because it can mean a leader is holding on for a month or two even when the numbers within the party seem to favour the challenger.

    (Australia has a rare example of this at the moment because, while the Labor caucus isn’t determined to remove Gillard – or at least, isn’t determined to replace her – all the opinion polls are suggesting that the electorate is preparing to do just that in September).

  11. I’m not sure you need fixed days and you certainly don’t need brief fixed terms.

    A motion of no confidence should need 10% of the house and 7 days notice and should not be repeatable for a month. The motion should take priority over all other business except electing a speaker until it is disposed of. Prorogation should not apply while the motion is before the house.

    The house should be able to suspend the notice and repetition rules,to allow a motion to proceed, by absolute majority. A suspension petition by absolute majority should have the same effect as a suspension motion.

    I’d also support a procedure of removal by tribunal under certain conditions like medical incompetence, criminality or corruption.

  12. Back to supply-as I understand it, the ALP + Greens control the Senate. While I imagine they are not necessarily the best of friends, the two parties have more common ground than with the Coalition, I imagine more so under a new ALP leader.

    Could such a Senate majority make life difficult for a Coalition government, or is it not the done thing any more, especially if the ALP get trounced in any hypothetical dissolution election?

  13. Most people are expecting a Labor-Green Senate to make things somewhat interesting for the probable Abbott government, though not 1975 levels of interesting. Abbott has already come on record as stating that he would force a double dissolution if the Senate refused to sign on to his carbon tax repeal and several commentators have speculated that Labor and/or the Greens may allow the repeal to go through for some reasonable accommodation in some other matter or simply if they feel that a double dissolution election wouldn’t help them.

  14. I expect the Coalition to have either a majority in its own right or a supportive cross-bench in the senate. That is largely based on the landslides in New South Wales, Queensland and Western Australia. In New South Wales, traditionally Labor’s heartland, the Labor primary is at 23% and it is possible that the result will be Coalition 4, Labor 1 and Green 1. Tasmania looks equally grim for Labor.

    The new senators will not take office until July 2014 and it is unclear if a double dissolution could be called before then.

    There will certainly be a new leader after the election. The present leadership, among other fantasies, has convinced itself that the Greens are their real enemies who are ‘stealing votes’ from Labor. I cannot see much co-operation while that view prevails.

  15. Oddly enough the issue of when a motion of no confidence is to be debated is now before the constitutional court of South Africa.

    The opposition moved no confidence last November and the national assembly has still not debated the motion.

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