A second election in Australia?

The 2013 Australian election has not even come yet (it’s this Saturday) and already the news media are rife with speculation that there will be another one soon. The trigger could be set for a double dissolution (new House election and full Senate, rather than half of the Senate as on the regular cycle) if Labor and the Greens block the Coalition’s plans to reverse the carbon tax.

The Greens have reiterated what the Sky News headline writer calls a “stonewall” on the carbon tax. Environment Minister Mark Butler says Labor will not back off its emissions policy.

I have a certain personal fascination with the carbon tax not only substantively, but because I had the experience of being in the Senate gallery in Canberra on the day of the bill’s final debate and passage vote.

178 thoughts on “A second election in Australia?

  1. Tom. see In re Wood, which apart from somewhat surprisingly declaring Elizabeth II to be a foreign prince, found an NDP senator incapable of being elected. The court’s direction to the electoral commission was to proceed as if Wood had never been a candidate. The NDP number 2 candidate was then elected by countback.

    It does not seem to me that it is at all a large step for the court to reach broadly similar conclusions on this occasion and reset the election from the first stage at which it failed. The house rules often do not extend to the senate, for example, a candidate’s death does not reset a senate election (CER, S180) but such a death does reset a house election.

    • But Alan, the difference is that in Wood there was nothing wrong with the votes cast. All ballot-papers were present and correct. The illegality arose because the candidate wasn’t personally qualified to sit.
      Whereas in Western Australia Senate race 2013, no-one is suggesting that any of the leading candidates are ineligible. The fault lies in the missing valid votes. Impossible for the court to simply hit “reboot” when the dataset has been thus corrupted.

      • I am not suggesting any candidate was inedible and that is not necessary for the court to adopt the same kind of direction tot he the electoral commission they adopted in Wood. Wood rebuts your claim about Mundingburra and S380 rebuts your claim about House processes as precedents for Senate processes. The reset point in 2013 is the voting because ballots are missing. The reboot point in Wood was Wood’s nomination because Elizabeth Ii is a foreign (as well as domestic) prince.

        Giving the people a chance to cure to cure the defects of this election by a second vote is not the same as giving the parties a second bite at the cherry with new candidates, GVTs etc etc.

  2. Aha, I see what you mean. Rerun the polling stage “B” of the election (not just the counting stage “C” as in Wood) because the polling stage is where the bug arose, but don’t rerun the nominations and ticket-lodging stage “A” because these were not contaminated. Gotcha now.
    I’m not sure that – whatever the legal theory – it will be possible in practice for the court to get the voters to step in the same river twice, and the Justices might consider that their discretion to do statutory equity is influenced by the doctrine of common-law equity (not an oxymoron – you know what I mean) that “equity does nothing in vain”. What if a number of the candidates decide they don’t want to go through the campaign process again because they are certain to be defeated (and don’t want to chance the GVT-preferences lottery?). Have their deposits already been returned?

    • My guess is they would find themselves in the same circumstances as any candidate who changed their mind between nomination day and election day.

  3. Which is normally a gap of four to six weeks. A lot of candidates won’t realise they will have signed up for a six-, eight- or twelve-month Senate election campaign… As with GVT 33rd and 55th preferences, yes, it’s in the fine print, but it’s not what people ordinarily expect.

  4. These threads are a lot harder to follow now that the new theme has ditched the numbers for comments. I will be poking around for a different theme, and will add numbered comments to my (long) list of things I want in a theme. There is a lot I need to learn about how to make this blog work in its new home.

      • Note that it is also possible to refer to an existing comment within a thread by its time (and date, if not the same). I believe all time stamps are unchanged by the transfer to this new host.

      • Interesting, I don’t have the option to ‘Respond’ to MSS’s comment (“Note that is is also…”) that appears to be timestamped 04/11/2013 1:06 am. Also, I assume that the displayed time is in reference to my timezone, or someone was up late?

      • Errol, I used to have the time stamp set to turn over to a new day at around my local sunset, rather than midnight. I have changed it since moving to the new site, and I would assume (but do not know) that everyone now sees a time stamp corresponding to US Pacific time.

        For sure, I won’t be commenting at 1 a.m., my time!

  5. Meanwhile, back at the fort, Australia is now having a debt ceiling crisis. While there is no chance of a debt default, the government is seeking an increase from AU$300 billion (US$279.67 billion) to 500 billion. Labor and the Greens have offered 400 billion.

    Abbot (caught lying about his voting record on previous debt increases) may slowly be coming to understand that his oppose everything conduct as opposition leader was not necessarily the best way to pursue a less rancorous polity.

  6. In the debt-celing case, an important question is whether this is a separate vote from the budget in Australia (like in the US) or if it is somehow part of a a budget vote. The news item implies it is part of the budget process.

    The only country I currently know, aside from the US, where it is a distinct vote is Denmark. But there the ceiling is apparently routinely set so high that it remains a non-issue.

  7. Sorry to belabor my question, but does that mean that the budget already passed remains in force, or can it be redone by the new government? And is the debt limit a separate piece of legislation, or part of a series of budget amendments?

  8. The budget already passed, more correctly the Appropriation Act (No 1) 2013, the Appropriation Act (No 2) 2013, and the Appropriation Act (Parliamentary Departments) 2013, remain in force until amended by the parliament or a new budget takes effect, although the treasurer and the finance minister have considerable variance powers. The debt ceiling is fixed by Section 5 of the Commonwealth Inscribed Stock Act 1911.

    The government presented a bill to amend S5 and the senate amended the bill by reducing the proposed ceiling from 500 billion to 400 billion. Apparently the current ceiling, at 300 billion, will deplete early in December.

    Unlike the appropriation bills, which have to be passed every year, the CISA is ‘standing’ legislation that remains in force until amended or repealed.

    Despite the title of the debt legislation, the debt ceiling only dates from 2008.

  9. Incidentally, during the US government shutdown a number of Australian websites gave themselves over to paroxysms of joy at contemplating the superiority of Australia’s institutions and the happy prospect that government shutdown or the threat of debt default could never happen here. Somehow a great silence has fallen in those columns over the last few days.

  10. Antony Green has crunched the numbers on the 2013 general election.

    Support for non-major party candidates reached 21.1% in the House of Representatives, representing more than one in five of all votes.

    In the Senate, support for non-major party candidates reached 32.2%, just under one on three of all votes.

  11. High Court ruling on preliminary points in the WA election petitions

    The court has not actually voided the election, but its decision on the points today make it almost inevitable they will void the election when the matter comes back to them on Thursday. Today’s decisions do make it inevitable that a fresh election will follow the voiding. I disagree with the article linked by Errol that the prime minister will necessarily get to determine the date. I think it equally possible the court will simply order the AEC to conduct a fresh election of WA senators as soon as possible.

    • I was wondering about the implied freedom in the article! Although some discretion to allow for holidays etc would seem reasonable, leaving that to the PM seems odd.

      • I’d guess they just looked the by-election rules for the house. The senate rules are significantly different and arguably don’t apply after a voided election anyway.

  12. There will be a second election in Australia.

    The High Court just ordered a fresh ballot for the 6 senators for Western Australian. I’ll link the judgement summary when it becomes available. Most of the media comment is again assuming the prime minister will decide the date because the prime minister indirectly decides the issue of the writ of election.

    However, there will not be a fresh writ of election. It seems to me that there is an unfilled writ already issued and the court will make its own decision on what should happen with it.

  13. The rerun of the WA Senate election is to occur on Saturday, 5/4/2014. General opinion from the “experts” is that people are horrifed that micro-party candidates (voted for by 23.5 per cent of the national population in 2013) actually won seats and that people will realise their “mistake” and flock back to the “proper” parties. They predict that the result will be two or three Liberals, two Labor, one Green and, as an outside chance, maybe one other. I say the 23.5 per cent of the population are delighted that their vote actually elected someone and that they will do the same thing again, though I do not predict how the preference flows will work in WA.

    The Joint Committee on Electoral matters has started taking submissions and conducting hearings into the 2013 election, the one that led to so many complaints because the “wrong” sort of people managed to get into the Senate (with more initial votes than most of the “right” sort of people had won from without complaint in every Senate election since 1949).

    Submissions can be found at Joint Committee on Electoral Matters Submissions. Mine has yet to receive approval and thus parliamentary privilege (not that it is the sort that really needs it). Submissions particularly worth reading are those from Malcolm Mackerras (no. 7) and Michael Maley (No. 19). One worth reading get the flavour of those who want to turn the single transferable vote into a party list system to shut the candidates of micro-parties out – the effect of which is to favour the Greens – is that from George Williams (No. 23). You can follow the links at the top of the page to get transcripts of public hearings. Malcolm Mackerras appeared on 7/2/2014 and George Williams on 13/3/2014. (BTW, they are Australian date orders, not US ones: as with “tomato”, you say 12/31; we say 31/12.)

  14. The old Senate has now passed into history so this comment is purely a contribution to the advancement of constitutional theory.

    Antony Green has posted the advice given by Chief Justice Griffith (himself the principal author of the constitution) to the governor-general when the first double dissolution happened a century and some days ago:

    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.

    Double dissolutions are unique to Australia and the governor-general’s power to grant one derive exclusively from the constitution and not the crown.

    The next exciting question is whether a double dissolution trigger that happened in the previous senate can be invoked against the current senate.

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