Introduction
This note briefly reviews possible ‘double dissolution’ scenarios for the Federal Government’s CPRS legislation.
Story so far
On 14 May 2009, the Federal Government introduced 10 Bills into the House of Representatives connected with the proposed CPRS and, on 28 May 2009, an 11th Bill.
These 11 Bills (together, the CPRS Bills) were passed by the House of Representatives (with certain Government-moved amendments to some of the Bills) on 4 June 2009, and were introduced into the Senate on 15 June 2009. The Senate considered the CPRS Bills (without voting on them) on 22 and 23 June 2009 before the Senate was adjourned for the winter recess on 25 June 2009. The Senate voted down each of the Bills on 13 August 2009.
On 22 October 2009, each of the CPRS Bills (including where relevant the government-moved amendments referred to above) was reintroduced into the House of Representatives.
16 November 2009
House of Representatives
If the Federal Government intends to set up a possible ‘double-dissolution trigger’ under section 57 of the Commonwealth Constitution, then 13 November 2009 is a significant date. It is the first date on which the Federal Government can pass the reintroduced CPRS Bills in the House of Representatives under the processes contained in that section.
Also significant is 16 November 2009. It is the next sitting day of the House of Representatives.
It is therefore reasonable to expect that the Federal Government will take steps, on or shortly after 16 November 2009, to pass the reintroduced CPRS Bills in the House of Representatives and to introduce the passed Bills into the Senate.
Senate
The CPRS Bills, having been reintroduced and passed in the House of Representatives and introduced into the Senate, will then be debated there.
16 November 2009 is also the next sitting day of the Senate.
It is therefore reasonable to expect that debate of the CPRS Bills in the Senate will commence on or shortly after 16 November 2009.
What next?
If and when the CPRS Bills are debated in the Senate, one possible outcome will be their passage unamended by the Senate, or their passage with amendments to which the House of Representatives subsequently agrees. In either of these cases, the ‘double-dissolution trigger’ under section 57 of the Commonwealth Constitution will not be engaged and CPRS legislation will be in place.
Alternatively, the Senate may expressly reject the CPRS Bills. In this case, the ‘double-dissolution trigger’ under section 57 of the Commonwealth Constitution will be engaged.
Difficult questions arise if none of the outcomes which are described above occurs.
High Court authority1 is to the effect that the ‘double-dissolution trigger’ will not be engaged while the Senate is employing its ‘customary processes’ of debate, consideration and referral to committees. But the High Court has placed an important proviso on this, namely: the use of those ‘customary processes’ must not be ‘excessive…having regard to…the importance, complexity and…novelty of the measure in question’. Clearly, the CPRS Bills are ‘important, complex and novel’. So, in their case, it is not clear what limitation the High Court has effectively placed on the Senate’s ability to use its ‘customary processes’ and, in particular, whether those limitations mean that the Senate must have completed its processes (and voted) before 26 November 2009, when the Senate is currently due to adjourn for this calendar year.
At some point, a failure by the Senate to vote on the CPRS Bills will exceed the bounds of ‘customary processes’ and will become what the High Court called ‘prevarication’, but it is not clear when that point will be reached. Possibly that point will not be reached—even if there is no referral of the CPRS Bills (or some aspects of them) to a committee or committees—before 26 November 2009. In any event, according to the High Court, one only looks to the conduct of the Senate as a whole—and not the conduct of individual Senators or of parties within the Senate—in deciding whether customary processes have become ‘prevarication’.
Double dissolution processes
If and when the ‘double-dissolution trigger’ under section 57 of the Commonwealth Constitution is engaged, there are time limits on the Federal Government’s ability to use it.
In particular, if the Federal Government is to call a double dissolution election, it must do so no later than six calendar months before the date on which the current House of Representatives would complete its term. This date is calculated by reference to the date on which the current House of Representatives first met, namely: 12 February 2008. In short, the double dissolution election can be called no later than 11 August 2010.
If the Federal Government calls a double dissolution election, the entire House of Representatives and the entire Senate are both dissolved and every seat in both houses is the subject of the contested election.
Behind the ‘double-dissolution trigger’ in section 57 of the Commonwealth Constitution is the constitutional requirement that the House of Representatives must be (as nearly as practicable) double the numerical size of the Senate. It is therefore likely (but not certain) that, at a joint sitting of the two houses following a double dissolution, the numerical superiority of the House of Representatives would prevail.
However, the procedures leading to a joint sitting following the result of a double dissolution election can be complex.
If following a double dissolution election the current Federal Government is returned with numbers sufficient to control both houses, there will be no joint sitting and it is reasonable to assume that bills for a CPRS (with or without amendments from the CPRS Bills) will simply be introduced and passed in both houses.
If following a double dissolution election the current Federal Government is returned with numbers sufficient to control the House of Representatives but not the Senate, there will need to be one further round of passage of, and failure to pass, the CPRS Bills before a joint sitting can be convened. The CPRS Bills must first be introduced and passed (with or without amendments suggested by the Senate prior to the election). The CPRS Bills as passed must then be introduced into the Senate. The Senate must then fail to pass them (as described above). Then, and only then, can the Prime Minister advise the Governor-General to convene a joint sitting of both house to consider the CPRS Bills as passed by the House of Representatives.
To date, there have been six double dissolution elections but there has only been one joint sitting of the two houses of Federal Parliament (in 1974). At that joint sitting, the relevant double dissolution bills were all passed.
Regulations
The CPRS Bills rely heavily on proposed regulations to bring the CPRS fully into effect. In particular, the CPRS Bills provide for regulations to determine (among many other things):
- the periodic ‘caps’ and ‘gateways’ that will underlie the scheme
- the range of direct emitters that will be covered, and
- all details of the emissions-intensive trade-exposed assistance program.
Such regulations will be subject to disallowance by either House of Parliament, in which case they will not be able to be re-made for 6 months (and will then be liable to further disallowance).
The result is that a returned Federal Government which secures passage of the CPRS Bills through a joint sitting against the wishes of a hostile Senate may nonetheless experience serious difficulties in actually implementing the CPRS.
Endnotes
- Victoria v Commonwealth & Connor [PMA Case] (1975) 134 CLR 81.
This article was written by John Taberner, Consultant and Jason Johnston, Senior Associate, Sydney.
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