Media speculation as to the timing of a double dissolution election has become increasingly frenzied these past weeks, with the proroguing and early recall of both Houses of Federal Parliament and defeat of the Australian Government’s Bill[1] to re-establish the Australian Building and Construction Commission in the Senate (ABCC Bill).

As was widely expected, the Government failed, for a second time, to secure the support for the ABCC Bill from Labor, the Greens or crucially, key independent Senators such as Jacqui Lambie, John Madigan, Glenn Lazarus and Ricky Muir.

While the machinations of the Government and the crossbench have now become more compelling than any episode of The West Wing, House of Cards or, for those who prefer Westminster-style government, The Thick of It, the concepts of ‘prorogation’ and ‘dissolution’ of Parliament are, for the majority of us who aren’t political junkies, pretty nebulous. It’s useful take a step back from the fray for a moment and to consider what has led to discussion of those concepts, what they really mean, and the effect that they will have on the operations of the legislative and executive arms of Federal Government.

Prorogation and recall of Parliament – what was it all about?

On 21 March 2016, the Prime Minister wrote to the Governor-General (who acts on the advice of the government of the day) requesting that he ‘prorogue’ Parliament on Friday, 15 April 2016 and summon it to sit on Monday, 18 April 2016. ‘Prorogation’ has the effect of terminating a session of – and, therefore, the business occupying – a current Parliament, and can be distinguished from ‘dissolution’ which refers to termination of a current Parliament.[2] (‘Double dissolution’ describes dissolution of both houses of Parliament, simultaneously).

The Government was transparent about its reasons for recalling Parliament – the Prime Minister’s letter to the Government-General indicates that recall was for the express purpose of considering the ABCC Bill and another key industrial relations Bill, the Fair Work (Registered Organisations) Bill 2014.

The Government has consistently noted that defeat of either Bill will provide it with the trigger for dissolution of both Houses of Parliament. The basis for this resides in section 57 of the Australian Constitution which allows dissolution of both Houses of Parliament to occur where this would resolve ‘an irreconcilable and persisting difference’ between both Houses about a law proposed in the House of Representatives.[3]

Dissolution of both Houses will mean that all Senators will stand for re-election. (In the ordinary course, the cross-bench Senators would not be required to stand for re-election for another three years, as a consequence of the Constitutionally-defined six year Senate term).[4]

As noted above, dissolution of Parliament (whether or not a ‘double dissolution’) requires the holding of a general election. To avoid a range of complications under sections13, 57 and 64 of the Constitution, described in detail in the blog by the ABC’s Election Analyst, Antony Green, the last date that a double dissolution election can be called is 11 May 2016 and the latest the election could be held is 16 July 2016. The double dissolution election that will follow dissolution, once it occurs, is scheduled for Saturday, 2 July 2016.

What will happen if a double dissolution election is called?

As a matter of convention, the Government will move into ‘caretaker’ mode, in recognition of:

  • the possibility of a change of government
  • the fact that the executive arm of government – the Australian Public Service – cannot be held accountable for its decisions in the normal manner.[5]

The caretaker period runs from the date of dissolution and continues:

  • if the government of the day secures another term – until the election results are clear
  • if the opposition succeeds – until it is sworn in as the new government.[6]

A series of practices – caretaker conventions – will be followed during this period. Caretaker conventions have developed over time and recognise that an incoming government should not be fettered by the actions or decisions of its predecessor.

Key conventions are that the Government avoids:

  • making major policy decisions that are likely to commit an incoming government
  • making significant appointments
  • entering or commencing major commercial transactions which have or may have legal effect (e.g. contracts, tenders).[7]

Other conventions are directed at protecting the apolitical nature of the Australian Public Service and ensuring that neither it, nor public resources, are used for electioneering purposes. Those conventions address requests by Ministers to Australian Government agencies; Opposition consultation with agencies or officials; travel by Ministers and shadow Ministers; and continuation of Government advertising campaigns.[8]

I’m an Australian Public Servant. How will I know whether a policy decision or transaction is major or an appointment significant?

The answer is that it depends on an assessment of the circumstances.

Whether a policy decision is ‘major’ is a matter of judgement, to be determined with reference to considerations such as the significance of the decision in terms of the broader policy context and whether the decision is a matter of contention between the Government and the Opposition in the election campaign. (Election commitments as to what a government would do if re-elected are not major policy decisions).[9]

If a major policy decision is, because of circumstances (e.g. natural disaster), required during the caretaker period, the Government of the day would usually seek bipartisan support for this through consultation with the Leader of the Opposition.[10]

In terms of transactions, whether a contract or undertaking is ‘major’ is a judgment based on:

  • the contract value
  • whether Ministerial approval is required
  • whether the contract involves a ‘routine matter of administration or rather implements or entrenches a policy, program or administrative structure which is politically contentious’.[11]

Where a contract is major but must be executed during the caretaker period for commercial, legal or other reasons, this may be achieved:

  • with bipartisan support
  • through the inclusion of terms providing for termination (in the case of a contract, of the contract, and in the case of a procurement process, of that process) in the event that a future government elects not to proceed with the transaction.[12]

In terms of appointments, whether an appointment is ‘significant’ should be determined by reference to the importance of the position and whether or not it is likely to be controversial. If an appointment must be made, it would usually be on an acting or short-term basis.[13]

Further information about the conventions that apply during the caretaker period can be found on the Department of the Prime Minister and Cabinet’s website.

What now?

The Federal Budget will be handed down on Tuesday, 3 May 2016 and for the Constitutional reasons described above, the election will be called within the week after this. For now, for those working with or within Government, it is a matter of business as usual, in anticipation of the onslaught of what is likely to be one of the most hard-fought election campaigns in recent memory.