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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.

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 comments

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

  1. Jimmy

    By the time Abbott can actually call a double dissoulution election he will have been in office almost 2 years, by that time it would hardly be surprising for the electorate to realise that a) all his unfunded promises can not be achieved an b) the carbon tax isn’t the terrible thing they had been lead to believe by Abbott and News Ltd (nice headline in the Herald sun today by the way) which could actually make his winning an election a year earlier than necessary far from guaranteed.

  2. Scott

    “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”

    Just out of curiosity, why would he have to wait until they take office? Does anyone know if the Australian constitution has an equivalent of a “lame duck session” that is available in the US?

  3. Jimmy

    Scott – “Just out of curiosity, why would he have to wait until they take office?” I assume it is because you can’t say the senate isn’t letting you govern when the senate that has been elected hasn’t actually been sworn in. Why would we go to an election when the effect of the last one hasn’t occurred?

  4. John Reidy

    Scott, I assume he would have to wait until July 1, 2014 to use the repealing legislation as a dissolution trigger.

    Anyway I don’t think this matters, the Coalition have been detached from reality for quite some time.
    If Abbott wins he will modify the scheme – through regulations or get some minor changes through the senate. Or have it morph into an emissions trading scheme – so no more ‘carbon tax’.

    I don’t think he is at all worried about losing his base because he can’t repeal the tax. He assumes (possibly correctly) his base would never vote Labor.

  5. Scott

    Section 57 of the constitution doesn’t make any reference to waiting. The Senate is still running, passing legislation, even if the new senators haven’t taken their seats.

    “Disagreement between the Houses
    If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor‑General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.

    If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor‑General may convene a joint sitting of the members of the Senate and of the House of Representatives. “

  6. Liz45

    Abbott also ignores the fact that the Australian people might object to another visit to the polling booth? Particularly when the policies had been in place for a couple of years, and the sun rose and set each day – with wheels still attached to the country?????

  7. gregb

    Yes, but Abbott’s base is not actually enough to win him elections. He needs to keep the punters who are currently uninformed about carbon pricing and supporting him now. They must be willing to go through a DD election just to get rid of a tax that is hardly affecting them and will likely result in tax breaks etc being withdrawn.

  8. SBH

    The finer, or indeed any, points of constitutional law don’t matter in this gambit. It’s Abbott screaming loud and long to the disaffected voters he wants to represent that despite whatever an elected government may do he doesn’t give a sh*t.

    It plays very well to all those voters who oppose a carbon tax or think they would if anyone could do something about it. In the next campaign the promise will be reaffirmed and if it’s done down by the Senate that will be the Senate’s fault. Abbott will then rale , Keating-like, against the Senate and decide in his own time whether a DD is a good idea.

    Scott, Antony Green’s election blog at the ABC has something of an answer. I tried to summarise it but failed.

  9. Modus Ponens

    The carbon tax will be a minor issue at the 2013 election.

    Gold fish memories + 24 news cycle = “look over there!”

  10. Judith

    Thank you, Fergus Green. You have removed the horror I felt when listening to a political commentator
    on ABC Local Radio yesterday morning so soon after feeling that perhaps we had the chance of a “new Australia”.

    Intouch

    To Crikey: What name will this comment be under?

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