The next Australian election

Please note that this speculation as to when the next Australian election will occur and how involves a fairly lengthy discussion of Australian constitutional and electoral law. Non-Australian readers may not be all that interested. Or maybe they will be. It depends on the individual.And yes, I am continuing to redefine "light blogging"

Ken Parish has some thoughts on an article by Ross Gittins about the timing of the next Australian federal election. Gittin claims that the next election will likely be a double dissolution, and that this is likely to be held in the second half of 2004. Ken agrees that a double dissolution is likely, but disagrees about the timing, partly for pragmatic legal reasons, partly for reasons concerning the dates in which a double dissolution can legally occur.

I actually agree with Gittins rather than Parish, but before I get to that, let's answer the question "What is a double dissolution?".

Well, as I have mentioned before, the Australian senate is one of the most powerful upper houses in the world. Senators are elected to six year terms, and half of them are up for reelection every three years. It has the right to reject any piece of legislation, including money bills. When the constitution was being written in the 1890s, the question was much raised about what should be done to provide a solution if there was a deadlock between the houses. Perhaps appropriately, this was a subject of much disagreement between various parties at the constitutional conventions of the 1890s. The resulting compromise was section 57 of the Australian constitution, which essentially says the following

If a bill is rejected by the senate, and the same bill (with or without amendments) is rejected again three months later, then the Prime Minister may call an election of both houses in their entirety - that is the whole House of Representatives and the whole Senate (rather than the normal half-senate) are up for re-election at once. (Both houses are dissolved: hence a double dissolution). If the new senate rejects the bill again then a joint sitting of both houses together may be convened, and if a majority of all the members of both houses together vote in favour of the bill, the legislation can come into force.

(Earlier in the constitutional conventions, a proposal that came close to being enacted was that in the event of a deadlock between the houses, a referendum should be held on the specific law, and that if voters were in favour of the law it should be enacted. However, the final convention ultimately decided on the version of section 57 we ended up with. However, some state constitutions (eg that of NSW) allow laws to be decided on by referendum in this way).

As the Senate has half as many members as the House of Representatives, and as the House of Representatives is elected on a single member constituency base and the Senate is elected using proportional representation, majorities are generally much larger in the House of Representatives than in the senate, and the government usually has enough votes to control a majority in a joint sitting. (For instance, at present, the numbers would be Government (Lib/Nat/CLP) 117, Oposition (ALP) 92, Other 17, meaning that the government would have a majority of at least 8 in such a vote. Opinion polls suggest that the government's majority would increase if an election was held now).

No government in more than 20 years has had a majority of the senate in its own right, and therefore the parties have had to negotiate with the minor parties (normally the left of centre Australian Democrats, although this party has now more or less self destructed). This was less of a problem for the Labor governments of 1983 to 1996 than it has been for the conservative (Liberal Party) government under PM John Howard that has been in power since 1996. Howard has still managed to get most of his legislative passed, but at times considerable compromise has been necessary. (For instance the consumption tax isn't quite as broad as Howard would have liked, and the government has been unable to get legislation through the senate to privatise the 51% of telecommunications company Telstra that is still government owned).

But, as Ross Gittins mentioned in that article Ken linked to, the policies of the parties appear to have diverged sharply in recent months. The government has higher education and healthcare reforms it wants to pass, it would seem that it would like to cut taxes some more (which would hopefully include a cut in the ludicrous 48.5% top marginal rate), and the government would like to sell remainder of Telstra. The government appears to be building up a stockpile of legislation that can be used as the trigger for a double dissolution and the application of section 57 above. I am sure that PM Howard feels that this is his chance to have a final big legislative impact before retiring, which it seems likely he will do within three or four years, although he clearly isn't going to retire immediately.

Now, we get to the question of the timing of this double dissolution. The various possible timetables for the next federal election have been summarised in this nice little note from the parliamentary library. The pertinent details are that when a double dissolution is held, the following half senate election is due a maximum of three years subsequent to the July 1 that occurs before the double dissolution, and in order that the results be declared so that the new senators can take their seats on that day, in practice the election must be held by mid May. Therefore if a double dissolution occurs after July 1, 2003, and before July 1, 2004, the election after that (which would almost certainly include a House of Representatives election at the same time), must be held by 27 May 2006. On the other hand, if a double dissolution took place after July 1, 2004, the next election would not be due until 2 June 2007. (These dates are based on the requirement that the results be declared in time for the new senators to take their seats on July 1, the electoral commission's present claim that it can declare the results within four weeks, and the fact that the election must be held on a Saturday.).

However, there is another complication. A double dissolution must take place no less than six months before the expiration of the House of Representatives. This means that the double dissolution must occur by 11 August 2004. Ken argued that this means that there would only be a very short windown between July 1 and 11 August on which a double dissolution election could be held "in the second half of next year". However, as I pointed out in his comment section and he referred to in an update to his post, the constitution says that the dissolution must occur more than six months before expiry, but doesn't say anything about the timing of the election (other than that parliament must meet at least once every twelve months, implying that the election must occur within about eleven months). The relevant piece of law is actually the Commonwealth Electoral Act, which essentially says that the election must occur not less than 33 days and not more than 68 days after the dissolution, with the added proviso that the election must take place on a Saturday. This means that the last possible date for an election after a double dissolution next year is in fact October 16, giving an ample window in the second half of the year during which the election could be held.

Essentially, Howard has 3 options. Either

(1) He holds a double dissolution before July 1, 2004, in which case the election after that must be held by 27 May 2006

(2) He holds a double dissolution between July 1, 2004 and October 16, 2004, in which case the election after that must be held by 2 June 2007.

(3) He holds a conventional House of Representatives and half senate election. The latest date on which this can be held is 16 April 2005. (This is later than most people realise)

If Howard goes for option 1, and holds a double dissolution before the middle of next year, he extends his time in office by only thirteen months over what it could be if he didn't hold an election at all. Politicians are very concerned with how long they can stay in office, and do not like having to fight more elections than they really need to. Purely from the point of staying in power, this is taking a lot of risk for a mere extra 13 months, even if it does give you the ability to enact a lot of legislation. In addition, assuming Howard was to go to the polls in December 2003, this election would only be two years after the previous one, and the one after that would only be (at the latest) two years and five months after that. The Australian electorate does not like early elections. Having two consecutive terms of two years or just over would not make the voters happy. (The electorate on the whole does not understand the intricacies of double dissolutions and electoral timetables, but does understand that it is supposed to have an election every three years. The Hawke government suffered quite a bit in 1984 from being perceived as going to the electorate too early, even though this was mostly the fault of the previous Fraser government, that called a double dissolution in March 1983). Of course, if John Howard is intending to retire, then this might end up being Peter Costello's problem rather than his.

On the other hand, if the double dissolution election is held in September 2004, then it will appear to the electorate that Howard has gone very close to his full term (2 years and nine months). The election following that would be in May 2007, and we are again fairly close to a full term (2 years and eight months). The potential electoral damage is much smaller. The party spends less time actually fighting elections.

Simply, it is going to take at least until December 2003 before Howard has all his triggers for a double dissolution ready. Holding the dissolution then would lead to all the problems above. Wait another six months until the start of July, and all these problems go away. The temptation to wait is likely to be very strong, because there is a lot to be gained by waiting. Also, the longer we wait, larger the pile of legislation that can be built up, and the more the senate can be demonised for its obstruction. (Plus there is that fact that Ross Gittins is known to be quite well connected. He probably does know what people in the government are saying).

Of course, if the electoral mood looks like changing, then Howard might jump if he thinks he can win and doesn't think he can win later. However, at the moment, this does not look likely to me. The opposition looks hopeless, and I think it is pretty certain to stay hopeless for at least another year.

I could of course be wrong. The only person who knows what John Howard is thinking is John Howard. (Well, maybe also Janette). I'd still be willing to bet Ken a beer that the election occurs after July 1, 2004.

Update: I have changed a couple of approximate dates to exact dates in the above in order to be internally consistent, as I was previously using approximate dates in one place and exact dates somewhere else.