Should the Government hold a double dissolution election to remove a troublesome Senate?

In the last year or two you may have read commentary discussing the possibility of the next election being a double dissolution.

But how many of us know what a double dissolution election is, what is involved or why we have the mechanism for it?

There are currently two Bills that have been twice rejected by the Senate and new Prime Minister Malcolm Turnbull could technically use the Constitutional process of a double dissolution to call an election for both Houses at any time.

Double dissolution to end disagreement between the Houses

Our bicameral Parliament gives almost identical powers to the two Houses, which sometimes results in disagreements between the upper and lower Houses. This can cause what is called a ‘political deadlock’. In practice this deadlock means that the House of Representatives controlled by the Government will pass a Bill, while the Senate where they don’t have a majority rejects it.

In some other parts of the world, including the USA, there is no way to end a deadlock between the two House of Legislature. The framers of our Constitution wanted to include a Section that would allow a disagreement between the two Houses of Parliament to be resolved.

It wasn’t until the Sydney Constitutional Convention in 1897 that the first draft of a deadlock proposal was added. This first proposal was then changed a couple of times and in 1899 the final version of Section 57 of the Constitution was created. You can read this fairly long section here.

What are the circumstances of a double dissolution?

In order for a double dissolution election to occur the House of Representatives must pass a Bill, which is then rejected by the Senate. Three months must pass and then the Bill is reintroduced in the same form, is again passed by the House Representatives and rejected by the Senate.

This Bill is then called a double dissolution trigger.

In order to pull the trigger and break the deadlock the Prime Minister must visit the Governor-General and request that both Houses of Parliament be dissolved and a fresh election called.

A normal election in Australia sees only half of the Senate positions in the six States up for election. By dissolving both Houses, all Member and Senate positions are up for election.

After the double dissolution election the Government (if they get back in) must first attempt to pass the Bill in the normal manner by going through the House and then the Senate. If the Bill still fails to pass the Senate, the Governor-General may convene a joint sitting of the House where all Members and Senators vote together. If the Bill is passed by an absolute majority it is then presented to the Governor-General to be assented into law.

How many Double Dissolutions have we had in Australia?

Double dissolutions are a serious Constitutional provision and are also very risky. Of the six double dissolutions that have been held since federation in 1901, the Government has lost power three times.

The first one was in 1914 when the Commonwealth Liberal Government lead by Joseph Cook only held seven of the 36 Senate seats and was barely able to govern. He introduced a Bill abolishing preferential employment for trade union members in the public service to create a double dissolution trigger.

On 16 June 1914 the Kalgoorlie Western Argus reported:

The decision of the Governor-General to grant a dissolution of both Houses of the Federal Parliament will occasion a sigh of relief that the present impossible position is likely to be brought to a close. The last federal elections were held on May 31 1913: the present Government assumed office on June 24 last with a majority of one in the House of Representatives, and with but seven supporters amongst the 30 members constituting the Senate.

The Government has been kept in office by the casting vote of the Speaker, and has had responsibility without power. Such a state of affairs could not give satisfactory results from the country's view point, and it is gratifying that the position will probably be changed in the near future….Any Parliament constituted of two Houses that are in disagreement must fail in efficiency, as an instrument of government. Since the Cook Government assumed office the record of legislative work has been practically nil.

War broke out during the election campaign and Joseph Cook lost the election to the trusted Andrew Fisher from Labor who then began his third stint as Prime Minister.

In 1951 the Menzies Government asked the Governor-General to call a double dissolution election after the Commonwealth Bank Bill was twice rejected by the Labor controlled Senate. The Menzies Government won the election with a reduced majority in the House but gained a majority in the Senate. The Bill was reintroduced into Parliament two months later and passed both Houses.

The double dissolution election in 1974 was triggered by six Bills that had been held up by a hostile Senate. The Whitlam Government was returned in the election, but still did not have a majority in the Senate. The trigger Bills were reintroduced and rejected by the Senate allowing the Prime Minister to ask the Governor-General’s approval to hold a joint sitting of the Houses. The Opposition parties failed in their application to the High Court to prevent the joint sitting, which took place almost three months after the election. All six Bills passed, in what is the only time a joint sitting of the Houses has occurred in the history of our federation (apart from a commemorative joint sitting in Melbourne for the centenary of federation in 2001).

The 1975 Constitutional Crisis is the most famous double dissolution. The Whitlam Government still facing a hostile senate, had built up 21 double dissolution triggers when the Opposition decided to block supply of the Budget Bills in the Senate. 

While Prime Minister Whitlam did not want or ask for a double dissolution election the Governor-General John Kerr dismissed the Government and the caretaker Prime Minister Malcolm Fraser asked Kerr to call a double dissolution. Funnily enough, Fraser who had previously opposed all of the trigger Bills did not reintroduce them when he was elected with a majority in both Houses.

In 1983, the Fraser Government asked the Governor-General to call a double dissolution with 13 trigger Bills. Unfortunately for Fraser, the Leader of the Labor Party Bill Hayden had resigned his role just hours before the writs were issued for the election. Bob Hawke was elected Leader of the Opposition five days later and went on to win the election for Labor.

After the rejection of the Hawke Government Australia Card Bill a double dissolution election was called in 1987. The Hawke Government was returned, but was still without a Senate majority. The Government had the numbers for an absolute majority win in a joint sitting, but due to flaws discover in the Bill after the election they chose to abandon the Bill.

Out of six double dissolutions only two have resulted in the trigger Bills being passed.

Current Triggers

The APH website has a handy page with all of the triggers, potential triggers and the Bills that were potential triggers listed. The two triggers available to the Government to call a double dissolution in this Parliament are:

Section 57 of the Constitution also states that a double dissolution cannot take place within six months of the end of a three-year term of the House of Representatives. Since the first meeting of the House for this term of Parliament was 12 November 2013, this means that a double dissolution would need to occur by 11 May 2016.

Interestingly, because of provisions about Senate voting in the Section 13 of the Constitution (election to fill Senate places have to be held within one year of the places becoming vacant), a normal election held before 6 August 2016 would be a House of Representatives only election.

This means that a double dissolution may be called on or before 11 May 2016, and then it is unlikely that an election would be held until after 6 August 2016. The latest date to hold a simultaneous election of half the Senate and the House of Representatives is 14 January 2017. 

Another thing to keep in mind is that the Senate terms after a double dissolution are backdated to the previous 1 July. This means that the term after a double dissolution is shorter.

Double dissolution election to remove Senators with which the Government cannot negotiate

It is not known if the new Prime Minister will call a double dissolution election using the triggers available. However, the new Special Minister of State Mal Brough has slated Senate voting reform to be introduced in the Parliament that will make it much harder for minor/micro party and independent candidates to be elected in the Senate.

The cross benchers have very publicly stated they would not work with the Government after bringing this legislation to the Parliament as it would make it almost impossible for them to be elected again. As such it has been reported that the Government would need to hold a double dissolution if this legislation is introduced.

It could be that the Trade Minister Andrew Robb speaking in Indonesia on Tuesday 22 September let the cat out of the bag by stating “We've got just a few months before a very important election”. CEFA will watch the situation and keep you abreast of any updates. 

You can read two more articles CEFA has recently written about the Senate:

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