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

  1. Jimmy

    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.”

    Completely agree, however I would think that now he hasn’t forced an early election and it is clear he really won’t repeal it some of the less rabid current Abbott supporters may be swing more to undecided and possibly back to the ALP once the system starts working and the sky doesn’t fall in and assuming he does win the next election his current attitude could ensure just the one term in office.

  2. Fergus

    Scott,

    Antony Green sums up the conventional wisdom on this issue – namely, that a requirement to wait for the newly elected Senate is implicit in the Constitution – on his election blog:

    “While it is not explicit in the Constitution, I believe it is implicit in the fixed terms of the Senate that a double dissolution trigger can only apply to legislation first blocked by a Senate in place after 1 July 2014. The Constitution states the Senators take their place on the 1 July after their election. Any double dissolution triggers attempted before new Senators take their seats would not allow the new Senators to vote on the legislation. An attempt to create a double dissolution trigger before the new Senators took their seats would attempt to terminate the terms of 108 Senators rather than the 72 implied by the Constitution. … If the Gillard government last its three years until the second half of 2013, any new Coalition government would find itself struggling to do anything about a double dissolution election until 2015.”

    See his full post at: http://blogs.abc.net.au/antonygreen/2011/06/what-chance-a-double-dissolution-in-the-next-three-years.html

    Even if you find a constitutional lawyer who disagrees with the “implicit requirement to wait” argument, my broader point about the attempted repeal creating a legal bloodbath (on a number of fronts!) stands.

  3. klewso

    Is everyone forgetting the Abbott’s admission to “Brother Kerry” in the “7:30 Report confessional” last year?
    “Hard mouthed” as he is, sometimes, in the heat of political battle, he does “tend to get his tongue over the bit” and his rhetoric can tend to “outpace both his actual convictions and his intentions”? Or something that adds up to that sort of interpretation?

  4. Mike Jones

    Fergus and commenters – thank you for an interesting – and dare I say, optimistic discussion.

    I am enjoying – while it lasts – the pleasure of seeing the passing of legislation opposed or at least not embraced by two opposing major parties, that is a step at least in the right direction. And the sweet irony of a lame duck minority government actually doing more (perhaps by accident) than a majority government – and certainly WAY more than a bunch of evil cretins who recently controlled both houses.

  5. Strife

    The impression I got from Abbott yesterday was he was planning to dismantle the infrastructure around the Clean Energy Act. Can’t collect a tax if there is no tax collector. Is that possible?

  6. Liz45

    @KLEWSO – Where he admitted to not always speaking the truth? That we should only believe him if it’s written down? Perhaps in his own blood? I also recall how he responds when caught out? He gets a filthy look on his face (Lateline prior to ’07 election – I recall it well – have it on tape in fact.) Or he just walks away? Does a Howard and closes everything down? Real brave isn’t he?

    He’s also admitted to wanting to win so badly that he’d ‘sell his arse’ or words to that effect? And some people still haven’t seen through him? His attitude to women gives me the sweats! I shudder to think of what he’d do given the power?

    @MIKE JONES – I have to smile or go crazy with annoyance by the nonsense coming out of the mouths of Abbott & Co re the ‘end of democracy’ bs. I recall Ron Boswell when Howard found out that Barnaby Joyce was the last elected member to the Senate in ’04. “Open slather” was what he tried to say, but I think Howard shut him up. This was on the 7.30 Report. Funny how in years to come the ABC showed this footage again – without that rather telling bit???

    Of course, as we were to find out, that’s exactly what Howard engaged in – open slather? He used the guillotine in excess of 130 times? Not a whisper from Abbott or Abetz or ?????
    Sickening hypocrisy?

  7. Jimmy

    Strife – Not sure if it’s possible but it wouldn’t make much sense as business would hate it, they would have legal obligations under the tax but be unable to actually conform to them leaving them in limbo.

  8. Modus Ponens

    To pay compensation the commonwealth has to ‘acquire’ the property rights for their own purpose (eg a house to build an airport). Our high court established a different test to the US which just requires compensation for ‘extinquishment’ of property rights.

    If Abbott established legislation to end the scheme and leave the pollution permits as valueless, they wouldn’t have to pay compensation.

    But the Liberals would never upset businesses in such a radical way. It is a giant bluff (plus the whole vote for me so you can vote for me again a year and a half later) makes the whole thing ridiculous and the Libs must know it.

  9. davidk

    I don’t think Abbott has any intention of carrying out his threat. Like everything else he says it is intended to grab a headline. If ever we we were so unlucky that he became PM he would simply claim it economically irresponsible to act in such a way. The whole argument is irrelevant in my view..

  10. Observation

    Jimmy – I agree, it wouldn’t make sense. But you assume logical thinking by the rAbbott.

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