Australia’s impending double dissolution

The latest news from Australia:

Electoral reform abolishing Group Voting Tickets and establishing partially optional preferential voting ‘above’ and ‘below’ the line was passed in both houses last week, and barring an unlikely High Court decision to the contrary, it will go into effect at the next election. Now that the electoral system is no longer an obstacle (and perhaps due to the electoral reform, which aroused the ire of most Senate crossbenchers), Prime Minister Turnbull has all but called the expected double dissolution election, threatening to do so if controversial industrial relations bills do not pass the Senate at the next session, scheduled to start on April 19th.

A double dissolution is the deadlock-breaking mechanism provided by Australia’s Constitution. Though half the Senate is usually elected alongside elections to the House of Representatives, the Senate has a fixed six-year term. This can only be shortened by a double dissolution election where all seats of both houses are up for election. A double dissolution can only be brought about by the government when triggered by a disagreement between the houses, as spelled out by section 57 of the Constitution; if the disagreement with regards to a bill continues after the double dissolution election, those bills can be put to a joint sitting of the houses, where the government is likely to prevail due to the houses’ relative numbers.

Although section 57 gives the government the power to threaten to dissolve the Senate if it does not pass its legislation, there are various factors that complicate this procedure, making it rather cumbersome for the government. There is, of course, also the risk of losing the election. The procedure has only ever been used six times, and the last double dissolution election took place in 1987.

63 thoughts on “Australia’s impending double dissolution

  1. Excellent summary, JD. My sole addendum would be a note that four of those six double dissolutions occurred in a 13-year burst (May 1974, December 1975, March 1983, July 1987). Indeed, it was not until I turned 20 that I’d lived through more “regular” federal elections (House plus half-Senate) than DDs.
    DDs have died down over the past 29 years, perhaps because party leaders belatedly realised that the Senate is elected by proportional voting. This means that, while a DD may be a tempting gambit for dislodging an opposition Senate majority (1951, 1974, 1975) or for dislodging micro-party Senators who won their seats through luck rather than through genuine popular support (2016), it is demonstrably useless for dislodging substantial minor parties who enjoy a solid 7 to 12 per cent of the first preference vote (like the DLP in the 1950s and 1960s, the Australian Democrats in the 1980s and 1990s, and the Greens today) .
    Tom Round aka “Gaudiatrix”

  2. In other news the people of Queensland voted last Saturday to amend the state constitution to increase the parliamentary term from 3 years to 4 years and to provide that a parliament cannot be dissolved unless the governor (not the premier) believes no government can be formed in the existing assembly. The federation now has the only 3 year non-fixed term in the country.

    • What is the reason for a 3 year term? It seems like those countries very rarely have early elections. Has Queenlands embraced the Swedish method of having an extra election rather than the Norwegian method of having no early elections? If the early election is called, then does the next regular election happen 4 years later?

      Thinking about legislative terms NZ, Australia (Federal), and Mexico has three years terms. Most countries have either 4 or 5 years, and rarely 6 years. The UK use to have 7 years, and Ireland’s Constitution allows 7 years for the Dail, but 5 years is set by law.

      It would be odd for a country to have a lower/only house to have elections every 7 years. Would this be democratic or not?

      With a longer term, are early elections more common Is there any talk in the U.S of having the House of Representatives eliminate midterms and go to 4 year terms? There are quite a number of U.S states lower houses that have 4 year terms. Only Argentina’s lower house, but half are elected every 2 years, odd that Argentina hasn’t gotten rid of staggered terms.

      • It is interesting that the French presidency – which began as a ceremonial position – originally had a seven-year term. Then, 45 years into the Fifth Republic, it became clear beyond denial that the President is the primary maker and breaker of Cabinets (at least for 80% of any 5-year National Assembly term), so the presidential term was reduced from seven years to five. Seven is all right for a cutter of ribbons, but too long as the interval between voters’ chances to change the government.

      • Ahem, the French presidency was originally not a ceremonial post. The first French president, Louis-Napoleon. started with roughly the powers of a US president and rapidly moved on to prince-president and then emperor. The second and third, Theirs and MacMahon, were heads of state and government until a constitutional crisis, the Seize Mai, converted the presidency to head of state.

        France had a seven year term, until recently because the royalist her in 1870 was a nutter, The roalustassenbly trued to open negotiations with him but all he would say was: ‘I have no promises to make or conditions to a accept’. He apparently planned to make a constitution himself after being crowned, Doctors told the assembly his majesty was likely to live another 7 years and the assembly elected a chief executive with a 7 year term.

        Ireland has a 7 year presidential term because they wanted to desynchronise parliamentary and presidential elections.

        I suspect bicameralism drives much of the detail, Mexico has 3/6/6 because their constitution is so focused on a 6 year term for president and no re-election. I’d argue that 3/6/6 south of the border makes a lot more sense than 2/4/6 north of the border, And we won’t even mention Sri Lanka with 5 year parliaments and 7 year presidents, 5/7 is just madness,

      • I do believe Tom meant the French presidency was ceremonial at the start of the current republic, though I may be wrong.

        Sri Lanka was 6/6, was reduced to 5/5 last year. France was the one with 5/7; Weimar was 4/7.

      • I rather like the idea of having a lower house elected for 4 years, with the upper house elected for 6 year by thirds every two years (alternating between concurrent and midterm. A longer version of that with 5 years for the former and 7y6m for the latter would also be nice.

      • NSW, Western Australia and South Australia have 4/8. Victoria has 4/4. Tasmania is eccentric.

      • How does Tasmania manage redistribution, considering it staggers Council terms across SSDs? (Dr. Round, what was your term for that type of rotation again?)

      • The presidency of the Fifth Republic was always intended to be a strong executive. Following the failures of the Fourth Republic, which was widely seen as weak and unstable, de Gaulle insisted on a strong presidency, with a seven year term, that would dominate the political system.

  3. There is one additional complication that a sad cited the prorogation nd the early recall of the parliament. Supply, money to fund the government, runs out out on 30 July. No governor-general ever has or would grant a dissolution of any kind without being assured that supply is available to fund the operations of the government until the new parliament can meet. The Electoral Amendment Act 2016 provides:

    42A Application of amendments
    The amendments of the Commonwealth Electoral Act 1918 made by this Part do not apply in relation to any election whose polling day is before 1 July 2016.
    Note: Things may be done (for example, a person may vote by pre-poll vote) before 1 July 2016, in accordance with the Commonwealth Electoral Act 1918 as amended by this Part, in relation to elections whose polling day is on or after that day.

    That section was a Greens amendment partially designed to meet the concerns of the AEC about time to get the reformed electoral system into operation and partially designed to roughen the smooth path to a double dissolution.

    The prime minister cannot wait upon the governor-general with advice for a double dissolution on 2 July unless and until either the full budget or a temporary supply bill passes both houses. I think it extraordinarily unlikely that labor and the greens would ever refuse supply for any reason let alone to shut down the government and abort an election, but noises have been made on the fringes of both Labor and the Greens.

    The parliament was set to resume on 10 May with the budget due on 11 May, the last possible date to request a double dissolution. The prime minister recalled the parliament early, overriding the senate’s decision on sitting days, because he needs parliamentary time to get the supply situation fixed and then to advise a double dissolution. The sheer level of senatorial pearl-clutching over the early recall of the apartment has to be seen to be believed,

    If the senate refused to pass a temporary supply bill, life would get very complex indeed for all concerned.

    • Doesn’t Labor have a policy of not blocking supply under any circumstances (following the events of 1975)? I seem to remember statements to that effect during the period between the swearing-in of the Abbott government and the swearing-in of the new Senate, in which Labor and the Greens could have theoretically blocked supply.

      • I cannot imagine Labor rejecting supply. Unfortunately I could not imagine Labor opposing electoral reform either. I do not seriously think we will have a supply crisis.

      • Indeed. Labor blocking a move to make preferences (more) optional. Somewhere Gough Whitlam’s prodigious corpse is turning in its grave. He certainly left some pygmies minding the shop after his passing.

  4. Tom was indeed thinking of the Fifth Republic, and to some extent the earlier-model Republics (quick! Who was the president of France when Leon Blum or Georges Clemenceau was premier?) but not the nineteenth century, with which Tom is far less conversant than Alan. I focus on history after 1918, which is why I get smacked down by JD over the Free Silver era.

    • Armand Vallières and Raymond Poincaré. (Naturally I cheated) When a new deputy asked for advice before a presidential election (joint sitting of both houses) Clemenceau famously said he was always voted for the most stupid.

      • Yes, but my point is, Alan had to look it up. No one talks about M Poincaré imposing the Versailles settlement on Germany.
        JD, from memory the distinction I could was something like “partial-map rotation” (eg, the US Senate) versus “full-map rotation” (eg, the Australian Senate). Partial map is very much the norm – perhaps even universal – across US statehouses but Tasmania is the only State-level example I know of in Australia.
        Back when Victoria and Western Australia had rotation for their Legislative Councils (Alan is – atypically – wrong in classing WA as 4/8: it’s 4/4, like Victoria), they went through a similar evolution. Both started with electing one of three MLCs per “province” every second year, then around mid-century switched to electing one of two MLCs per province every third year, then ending up abolishing rotation when they adopted PR.
        The only two States with PR and regional districts don’t have rotation: the two with PR and rotation vote at large statewide: Tasmania has districts and rotation, but (for its upper house) no PR: Queensland is unicameral. No State copies the federal Senate model of combining all three of PR, rotating terms, and regional electorates.
        The use of rotation for the Senate – together with the (globally anomalous) combination of (relatively) flexible polling dates with (normally) fixed changeover dates, produces some odd results.
        If the PM calls an early election for the UK Commons, the sitting MPs are immediately out of office, and the re-elected or newly elected MPs take their seats within a week. US Senators and CongressReps have a two-month lame duck period between election and changeover, but the election date is fixed by law and not subject to any earlier dissolution by the head of state and/or of government.
        Only in Australia, as far as I know, (a) can the head of government [*] call an early poll for pretty much any time within a 12-month window [**], but (b) those elected don’t assume or resume office until the 1 July following, ie, anything up to nearly a year later, and (c) accordingly, in the meantime, the Prime Minister enjoys nearly a year during which s/he can decide whether the “old” Senate or the “new” Senate is more likely to be congenial to a particular Bill.
        Four times have referenda been put to change this. The 1973, 1977 and 1984 versions would have kept rotation but had each Senator serve two House terms. (When NSW changed to direct election of its upper house in 1978, it followed a similar model of three Assembly terms – changed to two terms in 1991 – although the adoption of fixed Assembly terms has mooted much of the difference). The 1988 proposal would have abolished rotation too, so both Houses would serve simultaneous proposals. All four proposals lost (although the 1977 version did get 62% of the national vote – but it only carried three of six States). The good burghers of Hobbiton were persuaded by the conservative side that abolishing the one-year lame-duck period would, er, increase the Prime Minister’s control over the Senate.
        (In 1988, also, a lot of experienced politicians warned the good burghers that electing 12 Senators at once instead of 6 would, er, make it easier for a government to win a Senate majority. As I noted above, it took nearly five decades for the hard numbers men of Australian politics to really get their heads around this “proportional representation voting” concept.)

        [* Legally, half-Senate election writs are issued by State Governors, but they always act on the request of the federal PM and specify the polling dates that s/he suggests. I have heard it suggested that if a State’s Governor, advised by his/her own Premier, tried to pick a different Senate, the federal election commission would not fund that poll and the State would have to foot the bill itself. Again, federal funding is a very effective way for Canberra to make State governments do what it wants.]

        [** The ConstitutIon says the “election” of Senators shall occur within one year before the 1 July changeover: but as Antony Green has pointed out, (a) the High Court has ruled that an “election” begins when writs are issued, (b) you need several weeks between writs and opening of nominations on the one hand and the actual polling on another, so (c) the earliest a Senate poll can actually be held is mid-August. Preferences and postal votes may mean the final few seats aren’t known for a month or two – and the recent changes to ticket-voting may well extend the count further – but the PM still enjoys several months when s/he can know the basic numbers in both the outgoing and incoming Senate, and put a given piece of proposed legislation to either or both of them. I can’t think offhand of any other democracy where the head of government can both call an early election for a chamber and exploit that same chamber’s long lame-duck time-lag.]

      • Having developed this shorthand scheme, I have arbitrarily decided to refer to unicameral parliaments as having a 4/0 term in Queensland or 3/0 in New Zealand. Where there is an elected executive it probably makes sense to put the executive last as in 2/6/4 for the US or 3/6/6 for Mexico. The UK is 5/L and Canada is 5/<75.

      • In my admittedly limited knowledge of the outbreak of WWI, my understanding is Poincaré was the real author of France’s foreign policy in those years and ensured nobodies were formally in charge of the Quay d’Orsay. Such was the flexibility, I suppose, of the constitution of the Third Republic.

  5. I promise not to do a Louis-Napoleon on Tom ever, ever again) It was a late night posting and I messed up,

    More seriously, one problem with previous attempts to amend for the constitution for a federal 4-year term ran into opposition to an 8 year term for this senate. At the time no state had a 4 year term for its lower house or an 8 year term for its upper house. At the time for he referendums there ere also no houses with fixed terms and there dears that a 4/2T (where T is a term of the assembly) proposal would allow the government to get its way in the senate by calling frequent elections.

    NSW at one time had a had a truly bizarre 3/12 arrangement where 15 MLCs retired every 3 years and their replacements were elected by a joint sitting of the assembly and the continuing MLCs. That changed to 3/3T when popular election was introduced in 1977, to 4/3T in 1981 and then to fixed 4/2T in 1995.

    As a side note, state constitutions in both the US and Australia seem to be much more diverse and open to amendment than the federal constitutions.

    • I endorse Alan’s notation for rotation scheme, with two small amendments:

      1. Head of State first, then lower (or unicameral) chamber. Upper house (if any) third and last. So Switzerland would be 4/ 4/ 1-4 (counting the entire Federal Cabinet as a collective presidency, a direct allowing for cantonal variations in the terms of upper house members).

      2. Rotating terms are scored in terms of the number of “parts” who retire at each poll. Eg, Brazil would be “4/ 4/ 8 (2:1).” The USA would be 4/ 2/ 6 (1:1:0). Australian would be L [*]/ <3/ 6 (1:1). I suppose Germany would be 5/ <4/ 0 given that Bundesrat delegates have no fixed term at all (as opposed to an Australian Governor-General being given a five-year appointment but subject to earlier "recall" by the Queen, conventionally only for gross misconduct or incompetence, but this is neither judiciable nor requiring a supermajority of a large assembly).

      [* Or <5, if we count the Governor-General rather than the Monarch as Australia's Head of State. This terminological dispute is actually a live dispute within the Australian political class – somewhat analogous to "The US is a republic, not a democracy!" among American politicians and pundits. In general, Australian Republic supporters focus on the national pride issue – "or head of state should be an Australian, not a monarch in Britain" – to which the monarchists rely that it's the Governor-General, who for six decades has been an Australian, who is the country's head of state. Putting aside that an earlier generation of monarchists vociferously opposed the first attempts, in the 1930s,to appoint Australians (rather than English lords) to the viceroyship, this only defers, not answers, the question of where the Queen fits in. Is three a recognised category of "officer hierarchically superior to, and empowered to hire and fire, a Head of State?" I've no doubt that British Tories would turn beetroot-red with apoplectic rage if told that King Charles III was to be Head of State of the United Kingdom – but would hold office "at pleasure" of the President of the European Commission.]

      • There is no rule that a head of state be a single person. Switzerland, Andorra, San Marino, and formerly Uruguay all have plural heads of state. It is a fairly simple proportion that the Commonwealth realms have a dual head of state. Thus Tuvalu:

        1. The only privileges and functions of the Head of State are those prescribed as such.

        2. Subject to this Constitution and to any Act of Parliament, the privileges and functions of the Sovereign as Head of State may be had and performed through a Governor-General appointed in accordance with Division 3 (the Governor-General) and, except where the context requires otherwise, references in any law to the Head of State shall be read as including a reference to the Governor-General.

        It is a fairly strange debate. When Queensland partially codified* its constitution in 2000 they used ‘Sovereign’ as an inclusive way to refer to the queen or king and some monarchists decided it was all a plot to subvert the monarchy.

        *Partial codification because there were a number of entrenched acts that it was too complicated to amend, so you find sections like: ‘6 The Constitution Act 1867, section 2A provides for the Parliament in Queensland.’ Those that relate to the parliament have been repealed by the recent referendum.

      • “There is no rule that a head of state be a single person”
        True, but in all the cases you mention, where there are two or more they are of equal rank.
        I don’t know anywhere outside the Queen’s Dominions that can be said to have a Head and then an Even Greater Head higher above the Head.

      • If a ghastly accident put Prince George on the throne tomorrow, we would have a triple head of state comprising King George, his regent and his governor-general — one head, one higher head and one ever so much higher head. There are, after all, precedents for Georges needing princes-regent.

      • “Switzerland, Andorra, San Marino, and formerly Uruguay all have plural heads of state.” Isn’t the President of the Swiss Confederation effectively head of state?

      • I understand that the Swiss consider the entire seven-member Federal Council/ cabinet to be a sort of collective presidency, although the members take turns to rotate the position of President and Vice-President annually.
        I think some really pedantic Swiss jurists insist that these two are only the President and Vice-President of *the Federal Council”, and not *of the Swiss Confederation*. (Kind of like “Chief Justice of the Supreme Court” vs “Chief Justice of the United States”, which I understand was at one time a live terminological dispute.Or mistaking the President [pro tempore] of the Senate as the head of state of the entire republic, by mistaken analogy with Leia Organa in the now non-canonical Star Wars Expanded Universe.
        For multi-member heads of state, Yugoslavia, Sparta and (in some views) the Roman Republic offer historical examples.

      • I suppose this is splitting hairs, but I believe that technically, under Swiss law, the Confederation has a single head of state, which is the Federal Council. Unlike a Ancient Spartan diarchy, where each King had his own power (with the ability to veto one another), the members of the Federal Council have no authority as individuals, so the Council itself is the head of state.

        There are a “President of the Confederation” and “Vice President of the Confederation” who are elected by the Federal Assembly (both chambers sitting together) on an annual basis. The Federal Assembly by tradition elects the sitting Vice President as its next president, and elects the member of the Federal Council who has gone the longest without being President as the Vice President, but technically they could elect any of the seven members as President. The President chairs meetings of the Federal Council, and also represents the confederation abroad (while not actually conducting any “state visits” as he or she is not the head of state), though this is a relatively recent development as throughout the 20th century the head of the Foreign Affairs department represented the country abroad.

        Also, no one mentioned it, but Bosnia and Herzegovina has a collective executive consisting of one ethnic Bosniak, one Serb, and one Croat. I don’t know the workings of the model and whether its members are each co-heads of state or whether the executive in the plural is the head of state. I don’t think that executive has much power in a formal sense, and even less so considering that the country is for all intents and purposes two separate countries which happen to share a foreign ministry and currency.

  6. No, because then it’s not as if Prince George can actually do anything subject to being overruled by the Regent (Prince Harry?). The Monarch-to-be is solely a beneficiary, not a trustee, of the power.
    I’m prepared to hold that a Governor[-General] performs the functions of a head of state in the absence of the Monarch. My support for republicanism is not based on nationalism anyway (I agree with Michael Kirby on that point – it’s a risk of republicanism, but I think it’s manageable) so the “we need an Australian as head of state” argument has less traction than ‘we need all officials to be legally accountable through regular constitutional channels, and not have an office that can only be made accountable by extra-legally forcing or pressuring its occupant to abdicate.” If monarchies had explicit constitutional provisions for impeaching or deposing a monarch, I’d give the idea more shift, but most seem to think there’s a sort of lese-majeste about codifying the idea, even though of course many do it off the books.

  7. Moreover, I’m pretty certain a Regent cannot sack an underage or “unwell” Monarch from the throne

    • That would be news to Richard III, although I accept that’s not the happiest precedent around.

      A regency is still a case of a hierarchical plural head of state. So, for that matter, is the situation when a sick or absent governor-general is temporarily replaced by an administrator or when a deputy is appointed to perform some viceregal functions.

      • Again, I’m limiting myself to post-1918 constitutional democracies, now that usage has settled and conflict resolution has moved away from the zero sum (“defeated = retire from politics to write bitchy memoirs” rather than “defeated = you get executed via slow public torture and your children inherit nothing, due to attainder”).
        Eg, I wouldn’t take Cromwell and the Long Parliament as a precedent to justify the inherent power of the US President to dissolve Congress.

  8. To comment on the head of state issue only, if the term “governor-general” in each of the relevant Commonwealth countries were changed to “regent”, the relationship would be same but the terminology would be more exact. By virtue of her permanent residence in another country, the Queen of Australia is unable to exercise her functions as head of state, so a substitute head of state is created to act in her stead. I really don’t see what the problem is here.

    As far as I can tell, there is no theoretical reason why a sovereign King or Queen of England couldn’t decide to permanently reside in one of the other realms, and have a regency council exercise the head of state functions in the UK. This doesn’t create a nationalism problem, since presumably a King or Queen of Australia who permanently resided in Australia would be Australian, as least as much a Julia Gillard is. I realize in practice the elected governments of the UK and the other realm would have to agree to this.

    • Ahem, the last Queen of England died in 1603 and none of the Commonwealth realms have any relationship to Elizabeth I. Elizabeth II is Queen of the United Kingdom of Great Britain and Northern Ireland. We do not refer to Barrack Obama as the President of Illinois or Hawaii.

      • Though “England” is still a common synecdoche for “Britain”, Alan is of course technically correct (‘the best kind of correct’) about Elizabeth II being Queen of the UK. The word ‘none’, however, means ‘not one’, and so the word following ‘realms’ should be ‘has’, not ‘have’. I do think some of the Caribbean realms may have been claimed by England in the 16th century, but I may be wrong about that. In any case, I think we might agree that the UK is England’s successor state, meaning that the UK (which is a Commonwealth Realm) might be said to have had a relationship to Elizabeth I, though perhaps Alan’s definition is stricter than I can tell from his comment.

        I am not sure what Alan is driving at with his last sentence. I certainly don’t see how Ed implied that.

      • I read-ed Alan’s last sentence as “England is to the UK as Illinois/ Hawaii is to the entire USA”.
        I speak as one who was carefully taught at school in the Seventies to say “the USSR” not “Russia”, “West Germany” not “Germany”, and “Kampuchea” not “Cambodia”… and now has had to un-learn all that.
        Although at least “Burkina Faso” has stuck.
        (And then law students have to be carefully re-taught to say “English law” – or, to be really pedantic, “English and Welsh law” – rather than “British law”, because otherwise you’ll make a lot of Scots angry, and one does not want to be making Scots angry.)

      • It is no more valid to refer to the whole of the UK as England, than it is to refer to the whole of the Netherlands as ‘Holland’. If I found myself in Glasgow, I would try to avoid telling people they were English around closing time. I actually saw an Englishman do this once. Quick thinking and fast running was needed.

        The royal style and titles take account of this reality. From 1603 until 1707 it was some variant of ‘King of England, Scotland, Ireland and France’ and never ‘King of England’. Since 1707 it has been some variant of ‘King of the United Kingdom of Great Britain and Ireland’ and never ‘King of England’.

        The royal style and titles are fixed by proclamation issued under the Royal Style and Titles Acts, which are uniform in the Commonwealth realms. The current royal style and titles for the UK is ‘By the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith’. I propose to continue to be guided by the relevant legislation,

        The Cambridge Guide to Australian English Usage (2007) says that both ‘none have’ and ‘none has’ are equally acceptable. The same work cautions against using ‘England’ when you mean any of the island of Great Britain, the United Kingdom of Great Britain and Northern Ireland or the British Isles. I will dare to continue to occasionally use ‘Britain’ as an abbreviation for ‘Great Britain and Northern Ireland’ unless MSS directs otherwise.

        The question is not whether or not the UK is a successor state to England, it is whether the UK is a successor state to England in a way that Scotland, Wales and Northern Ireland are not.

      • I know that the synecdoche of ‘England’ for ‘Great Britain’ or ‘UK’ offends many (and, if I understand correctly, does so much more than it used to), but in my experience few object to ‘Holland’ for ‘The Netherlands’. Even the Dutch government’s ‘Netherlands Foreign Investment Agency’ brand name is ‘Invest in Holland’.

      • I thought the last Queen of England was Anne, who died in 1714. Being simultaneously Queen of Scotland did not make her not Queen of England, just as being Queen of Australia did not make Elizabeth II not Queen of the UK.

      • Anne’s title before the Act of Union was ‘Anne, by the Grace of God, Queen of England, Scotland, France and Ireland, Defender of the Faith, etc.’ The single crown of England, Scotland, France and Ireland was indivisible and stayed that way until the 1930s.

      • If one can say ‘Queen of England’ before 1603 without it negating Ireland or France, one could certainly do so between 1603 and 1707 without negating Scotland. Hitherto and no further with your pedantry, Alan!

      • It may surprise you to learn that no kings of England ever ruled the kingdom of France apart from Henry V and Henry VI who were both highly contested contested throughout their French possessions. There was actually a separate French kingdom through the entire period! I know this is a minuscule historical fact only a pedant could be concerned with. I believe there may even be a French language that is different from English! I do not have the time to consult any reference books so I am unable to say if France is governed today as a separate country within the United Kingdom or as an integral part of the Kingdom of England.

        Equally you might note that Henry VIII formally took the title of King of Ireland and Elizabeth I and her father spent considerable efforts on trying to conquer Ireland, a task not achieved until the Protectorate almost a century later. When you explain to a Dubliner or a Droghedean why they are English it may be best for your personal safety not to start with the Crown of Ireland Act 1542. Actually it may be best just not to start at all.

      • I knew those things. It nonetheless seems silly to me to insist on the usage of the full form at all times, as you seem to imply. Protest all you like, people will commonly omit ‘Emperor of India’ or, later, ‘Head of the Commonwealth’ when speaking of British monarchs just as they will often omit ‘Apostolic King of Hungary, King of Bohemia, of Dalmatia, of Croatia, of Slavonia, of Galicia, of Lodomeria, and of Illyria’ when speaking of Austrian (or Austro-Hungarian) monarchs. And there’s nothing fundamentally incorrect about that. You used a short form yourself above (“the last Queen of England died in 1603…”).

      • I started off talking about the country. I am not guilty of leading the conversation in these weird directions or introducing the Lady Bracknell impersonations. Irrespective of whether the last Queen of England died in 1603 or 1714, it was over 3 and possibly 4 centuries ago and 3 to 4 centuries is a very long time for people to be simultaneously reaching back for authority and uttering heart-rending cries of pedantry.

      • In other words, it is not pedantry to point out that some titles imply less actual sovereignty over a territory than others (‘King of Jerusalem’, claimed by some European monarchs until at least 1918, springs to mind; ‘Republic of China’ is maybe a modern equivalent to this phenomenon) and therefore should be treated differently. It is pedantry to insist one must absolutely use the full long-winded title lest it sound like one is negating some part of it.

      • Only at Fruits and Votes could a discussion of an early election in Australia result in various monarchs of pre-WWI Europe being invoked.

  9. Antony Green also points out that the constitutional requirement for ministers to be Senators or MPs could cause problems for the government if the results of the election are not figured out in time. But don’t ministers stay on as caretakers until a new minister is appointed?

    • They can and usually do, but there’s a three-month constitutional time limit on seatless Ministers:
      (Note that the heading is — unusually for AustLII — incorrect. That is Section 64 of the Constitution of the Commonwealth of Australia, not of the Commonwealth of Australia Constitution Act. They’re two separate, though related, documents. The Act came into effect on 9 May 1900. It has nine sections. The ninth of these contains the Constitution proper, which has 127 sections (formerly 128 but one was repealed), of which this section is the 64th. This confuses my students no end. It would be like telling American students that the first “President of the United States” was John Hanson:
      (Brrrrhhh, I’m turning into Alan. Time for a cleansing stint of talkback radio…)
      As for Section 64, like the analogous recess appointments clause in the US Constitution, it allows legal loopholes through which trucks could be driven. As Donald Horne wrote satirically in HIS EXCELLENCY’S PLEASURE (1977 — yes, the bitter aftermath of the Whitlam Dismissal), a Governor-General determined to rule autocratically could simply have his Ministers step aside every 91st day, then resume office without dropping a stitch. It’s unlikely that Australian courts would get drawn into whether this is illegal, mainly because it’s hard to think of a remedy they could frame. (How many days must a seatless Minister stay in the wilderness before being reappointed? Do the courts look at each case to determine whether the former Minister had made a bona fide effort to find another seat?). The real sanction is that this sort of stunt would probably be too controversial politically. One of those odd platypus hybrids where a legal rule is on the statute books but is effectively enforced via outrage at the ballot box rather. By contrast, most legal rules are enforced by the courts, and are too arcane or abstract for the average voter to care about when house prices are rising or falling: but this particular one would seem a clear enough “rort” to the bloke or sheila at the Erskineville pub to reinforce their pre-existing annoyance at “the politicians.”

    • They can and usually do, but there’s a three-month constitutional time limit on seatless Ministers:

      (Note that the heading is — unusually for AustLII — incorrect. That is Section 64 of the Constitution of the Commonwealth of Australia, not of the Commonwealth of Australia Constitution Act. They’re two separate, though related, documents. The Act came into effect on 9 May 1900. It has nine sections. The ninth of these contains the Constitution proper, which has 127 sections (formerly 128 but one was repealed), of which this section is the 64th. This confuses my students no end. It would be like telling American students that the first “President of the United States” was John Hanson:

      (Brrrrhhh, I’m turning into Alan. Time for a cleansing stint of talkback radio…)

      • I know of the time limit, that was Green’s point. My question was whether that would really be such a problem considering that ministers could simply resign after three months but the PM could simply avoid appointing a replacement. But as you point out below, the rule might be even simpler to get around.

  10. As for Section 64, like the analogous recess appointments clause in the US Constitution, it allows legal loopholes through which trucks could be driven. As Donald Horne wrote satirically in HIS EXCELLENCY’S PLEASURE (1977 — yes, the bitter aftermath of the Whitlam Dismissal), a Governor-General determined to rule autocratically could simply have his Ministers step aside every 91st day, then resume office without dropping a stitch. It’s unlikely that Australian courts would get drawn into whether this is illegal, mainly because it’s hard to think of a remedy they could frame. (How many days must a seatless Minister stay in the wilderness before being reappointed? Do the courts look at each case to determine whether the former Minister had made a bona fide effort to find another seat?). The real sanction is that this sort of stunt would probably be too controversial politically. One of those odd platypus hybrids where a legal rule is on the statute books but is effectively enforced via outrage at the ballot box rather. By contrast, most legal rules are enforced by the courts, and are too arcane or abstract for the average voter to care about when house prices are rising or falling: but this particular one would seem a clear enough “rort” to the bloke or sheila at the Erskineville pub to reinforce their pre-existing annoyance at “the politicians.”

  11. Having whined and moaned about a ‘lack of consultation’ in the Senate reform debate, it now appears Labor is likely to bring back compulsory preferences in Queensland in a matter of days.

    As far as I can tell, the amendment to bring back compulsory preferences was tacked on to a bill adding extra seats to the legislature backed by the LNP. It appears to have passed, bringing the number of jurisdictions in Australia with optional preferences back down to two.

      • Strange. I knew a few of the individuals involved, personally, and would have thought they were smarter than this.
        Politicians who pull electoral law changes out of nowhere like this, to “fix” a problem complained about by no one ever, remind me of children who cover their eyes and think no one else can see them.
        So I assume Senator Stephen Conroy was on the phone within minutes to his colleagues in George Street angrily demanding “Where is the polling that shows that 95% of Queenslanders want compulsory preferences?”? Because you can’t change electoral laws unless there have been mass rallies, petitions, etc demonstrating public dissatisfaction with the existing system? Right, Senator Conroy?

  12. So let me get this straight. Bob Day is asking the High Court to rule that…

    1. A method that requires the voters in every State to number from 12 to (total minus 1) individual candidates, and permits them to do so either by numbering six team squares or twelve individual squares, is not a “system” that is “uniform” across all States.

    2. Allowing voters to exhaust their ballots after numbering 12 (or more) candidates is unconstitutional because unless you’re compelled to vote for every obscure nutcase who can find $2000 and fifty friends and relatives, you’re “disenfranchised”, apparently. Why, it’s Peterloo and the Chartists and Martin Luther King and the police dogs and the water cannon all over again.

    3. Rather than viewing the savings clause (“we’ll instruct you to number twelve candidates or six teams, but we’ll save your ballot from the dustbin as long as you number at least one of either”) as an act of generosity by the Parliament, Senator Day thinks it’s an act of deception. You’re not telling them the real story.

    So, as far as I can tell: Senator Day thinks it’s wrong for votes to be put aside later in the count because those voters have said “I have voted for every candidate I know about and care about and I do not want to be construed as in any way positively supporting the swill who remain. If the Motor Sex Party candidate defeats the Illibertarian Antidemocrat candidate for the last seat and squeaks into parliament on a sub-quota as a result, so be it, but in that case it will be publicly transparent that they are supported by only 0.9 or 0.8 of a full quota so they cannot pretend that they are in any genuine sense ‘supported’ by a full quota of the electorate in the same way that the first or second candidate on a major-party ticket is”…but quite all right for votes to be put aside at the very beginning of the count because those voters tried to number every candidate but accidentally left candidates, or have left gaps between numbers, or have repeated numbers.

    In other words, on Planet Bob Day, your ballot can easily be binned against your will if you made a mistake, but it should never be binned with your full consent because you have abstained from voting further among the remaining candidates, because the latter would be “disenfranchisement” and we cannot possibly allow that, no sirreee!

    Okay, I realise that “Let adults make their own individual choices and then let them take responsibility for the consequences” is probably not carved in stone over the doors at Family First party headquarters. But why is the High Court humouring this bloke? Should have summarily dismissed and ordered costs against him, weeks ago.

    • Tom,

      As you know, I think the new Senate voting rules are a disgrace, but, having read two days of transcripts in the High Court case, I can’t see much of a constitutional argument presented against them. I thought the argument presented was torturous.

      I can see an argument that voting for groups as opposed to individuals is contrary to Section 7, but that would rule out the previous system too. I can also see an argument that it is unconstitutional to force the AEC to lie to voters about what they must do on their ballot paper and one that it is unconstitutional to have compulsory above-the-line preferences preference fewer candidates than below-the-line preferences and still be formal, but those arguments were not made in any coherent fashion that I could see.

      While the case seems extremely weak, I don’t jump to a conclusion about the High Court’s likely verdict. After all, it has already ruled Work Choices constitutional under the corporations power despite its clear defiance of the inter-state restriction in the industrial relations power, and it has already amended the meaning of “marriage” in the Constitution to mean the union of any two people instead of the 5,000-year old meaning of the union of a man and a woman, which everybody knew it meant in 1901 when the Constitution took effect and which everyone knew it meant for the following 113 years, so it can do anything it likes really.

      As the long-term aim of the “reforms” is to hand the balance of power to the Greens, we may see a re-elected Turnbull government facing a hostile Greens-Xenophon-Labor Senate and ready to do a deal with Labor, which is equally opposed to dependence on the Greens, to change the system again so that the quarter of Australians who voted for the micro-parties can again be represented in future half-Senate elections. That would require the federal Coalition to be as smart as the Victorian Labor Party, which long ago worked out it is better to have a choice of partners in the Upper House.

      • 1). When did the Australian High Court say that the definition of marriage in the Constitution includes homosexual couples?

        2). I’ve made my point about Senate reform many times. However, I will say that, as someone who will be voting in 2019, any party or parties which bring back group tickets will be last on my ballot paper. The 25% of Australians who vote for minor parties should not be represented by arbitrarily chosen nobodies from random parties. Their votes will now count for the parties of their choice: if, under OPV, another Ricky Muir is elected with 0.5%, the voters will have actively chosen him or her, and that will be fine.

  13. The High Court has just thrown out Bob Day’s challenge to the new Senate voting system.
    One has to chuckle at the chutzpah of a former Australian property developer saying “These rules are rigged in favour of the existing cartel! They block newer, smaller players from having a fair chance to enter the market!”
    Karma, Bob. Karma.

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