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Oct 13, 2011

Abbott's gory pledge would be a legal bloodbath

Tont Abbott’s hyperbole has certainly attracted the headlines, but it betrays a curious tactic, writes Fergus Green, a lawyer and policy analyst specialising in climate change.

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John Howard gave us the “non-core promise”. Now Tony Abbott has added a new category to the hierarchy of political commitment with his “pledge in blood” to repeal the carbon tax, which passed the lower house of Parliament yesterday (unless, of course, that was just an “unscripted remark” made “in the heat of verbal combat“.)

Abbott’s hyperbole has certainly attracted the headlines, but it betrays a curious tactic. By using such uncompromising rhetoric, Abbott has left himself no room to move if repealing the nascent scheme becomes legally impossible or popularly unpalatable.

No amount of blood-pledging, pinkie-swearing, or scout’s-honouring will change the constitutional and political obstacles that an Abbott government would face if it tried to repeal (what will soon be) the Clean Energy Act and its 18 associated acts of Parliament.

Starting with the basics:

  • To form government, a party (or coalition of parties) requires the majority of seats in the House of Representatives;
  • But executive government does not necessarily imply an ability pass legislation, since that requires passage through both houses of parliament;
  • To repeal an act of Parliament, including the carbon price legislation, requires another act of parliament.

If an Abbott-led Coalition were to form government after the next election (expected to be held in 2013, about one year after the carbon price scheme will have started), it would only be able to repeal the scheme immediately if it (a) controls the Senate as well or (b) obtains the support of either the Labor opposition or whoever holds the balance of power in the Senate.

It is unlikely that the Coalition will control the Senate after the next election (which will include only a half-senate election as usual); a more likely scenario is that the Greens will retain the balance of power.  This would mean an Abbott government would need their support, or the support of Labor, to pass the scheme.

Let’s make the reasonable assumption that such support will not be forthcoming (Bob Brown has given a “rolled-gold guarantee” that the Greens will vote against any attempts to repeal the carbon price,* though Labor’s position on anything that far in advance is admittedly unpredictable). In that case, Abbott has said he would call a double dissolution election — by which both houses of Parliament are dissolved in full — in the hope of getting the number of seats needed to ram the changes through.

But the Constitution litters Abbott’s pathway to a double dissolution with speed bumps. To yield a double dissolution trigger, Abbott’s repealing legislation would need to be rejected twice by the post-2013-election Senate.  Assuming the next election is held in the second half of 2013, he would need to wait until after the new Senators take office on July 1, 2014 to introduce the repealing legislation the first time. As Matt Grudnoff has pointed out, taking into account the constitutionally mandated minimum three-month period that the House of Representative must wait between submitting the same piece of legislation to the Senate, along with the time soaked up by expected Senate inquiries into each repealing bill, it would likely take until at least early 2015 before a double dissolution election could be called.

If, following the double dissolution election, an Abbott-led coalition won the numbers needed to pass the repealing legislation (on the separate sitting of both houses or via the “joint sitting” option that would become available), it would then be at least mid-2015 before Abbott’s repealing legislation could be passed into law.

Then there are the vexed logistics of dismantling an already-functioning (in full-fledged emissions trading mode by July 1, 2015) market mechanism under which billions of dollars worth of property rights, in the form of carbon units, have been issued by the government and are held by private entities.

I am not as convinced as some are that repealing the scheme and cancelling the associated property rights would necessarily amount to a constitutional “acquisition of property” (think The Castle) requiring the payment of compensation “on just terms” to holders of carbon units (the law on property acquisitions by the Commonwealth, especially in cases involving statutory forms of property, is complex and uncertain — more on this issue in a subsequent post). What we can say with certainty is that any attempt to repeal the legislation and cancel those rights will result in political bedlam and protracted legal battles.

In sum, an Abbott-led government may eventually be able to wind back the carbon scheme, but it will probably take a mighty long time. Whether or not it would cost his government billions of dollars in compensation to do so is more likely to be resolved by the High Court’s ink than by Tony Abbott’s blood.

*It is not clear whether a “rolled-gold guarantee” trumps a “blood pledge” in the lexical hierarchy of political intention.

**Fergus Green is a lawyer and policy analyst specialising in climate change

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81 thoughts on “Abbott’s gory pledge would be a legal bloodbath

  1. michael r james

    The real issue is not what Abbott may or may not do in >3 years time, but what he does in the next 2 years. He has pretty much boxed himself into this utterly negative and extreme position but he will go hoarse from all the shouting—and his audience will go tone deaf—if he tries to keep it up. The reason for all the extreme rhetoric and dirty sloganeering–including distasteful vitriol from protests he attends, to organized disruption from parliament’s gallery, and a last minute load of hot air from Warburton (supposedly representing business interests but none of whom would go on record as agreeing) that the sky would fall in on business–is that they all know that it is almost all over. The tide can only start coming back in —–and I would love to extend that metaphor to “sweeping away all the transient detritus left on the beach”, plastic garbage, condoms, worn-out platitudes etc, but alas that is not going to happen overnight.

    Abbott’s rhetoric through gritted teeth is very reminiscent of when he knew he had not won the 2010 election, and then had not won any of the independents (including in practice Katter or Crook). He knows it is over on this particular subject but that doesn’t mean I expect him to stop the shouting.

    I want to see him ramp the volume up. I want to see Alan Jones going all foam-flecked over this and Bolt screeching on his wall-to-wall tv self-admiration society (if it survives). Barnaby and Sophie and other red-faced loons can shout themselves into near-apoplexy. Bring it on, I say.

    Then there is Turnbull and the remnant small-l liberal wing of the party, plus those whose main constituency is business, especially big-biz. They may not go public with a megaphone (though Malcolm sometimes loses control) but they will not be silent behind the scenes. This is certainly a good turn of events for Turnbull–and even if TA gets himself elected it would be a miracle of huge proportions for him to control himself and run a disciplined government run on rational policy. Constitutionally (ie. genetically, philosophically) he cannot do it. When such people, let alone a Jesuit, get into power there is only one thing they are able to do: abuse the power.

  2. michael r james

    @SBH Posted Friday, 14 October 2011 at 10:37 am

    Drat it, there you ruining my wonderful gag. Of course I should have known as I have even made one. Natch, it is the beaten egg whites. I was getting confused with pizza dough (which I recently started making myself instead of buying premade). But looking at my Robert Carrier cookbook there are a few other tidbits: “A soufflé must be eaten when ready. This sometimes temperamental dish will not wait for our guests.”

    @CML Posted Friday, 14 October 2011 at 3:04 am | I so much want to believe the scenario you have painted @ 4.31pm. However, I don’t think this can be achieved if PM Gillard stays in place.

    I know what you mean but I am not sure it is true. In fact I think it is pretty certain that a change of leadership will be disastrous. (Other than the NSW disease it would be sending the message that everything Labor have been doing since the election is wrong.) On the other hand Australians are supposed to like underdogs, and Gillard is a remarkable fighter. I think people may come around to admiring that again, especially as the reasons for hating her will melt away in the next 2 years. This is why I actually encourage Abbott/Bolt/Jones et al to do their worst–at some point their shrieking will turn into the boy who cried wolf.

    Yet again, I do think she needs to do something about that schoolmarm “Press” voice she uses that is a huge turnoff. Surely it cannot be that difficult with a bit of training. Where is Geoffrey Rush/Lionel Logue when we need him!

  3. Pedantic, Balwyn

    All the truly smart and intelligent folk (not tongue in cheek) that have contributed to the above discussion have not appreciated that the great majority of the population have absolutely no idea what the carbon tax is all about.
    In one sense why should they? The credible left coalition says one thing; the equally credible right coalition says another. Often more succinctly and in a manner appealing to the voter’s hip pocket. Moreover, they blame the bogey man Greens for the great big new tax. No guesses about who wins that argument.
    Many blame the Government for not informing them, but this isn’t strictly true. Regrettably the media has done a very poor job in presenting the facts; certainly Fairfax has presented realistic comparisons between the approach of the left and right but does not repeat them frequently enough to resonate with the small percentage of the country that isn’t swamped by News Ltd.
    There is a hard core of people that do not believe in climate change. However, the majority think there is an issue, but that it is of insufficient concern to warranty the huge tax about to be imposed on them, including many, many small businesses.
    We can expect no change from the right wing coalition; their only concern is to win power by any means. So the big question is how is the public to be given the facts and therefore the choice to make an informed decision not a detailed discussion of whether or not Abbott can or cannot deliver on his blood oath!

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