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

    The other thing we must remember is that peoples attitudes towards climate change and a price on carbon could change dramatically beofre 2015.

    If we look back to 2007 most polls had massive support for a price on carbon, both parties took one to the election, 4 years and a good scare campaign later and the majority appear against it but in another 4 years when people have lived with it for 3 years who knows what the mood will be but I doubt they will be as against it as they are now.

  2. Liz45

    @DAVIDK – Abbott has the knack of telling porkies with a straight face – he knows that the media won’t challenge him on them? He gave a promise set in concrete prior to the ’04 Election while he was Health Minister, but hasn’t been challenged on the fact that he had to go back on that promise? No howls of ‘liar liar’? Not a whisper! He thinks we’re all either stupid or have lost our memories – short and long term?

  3. Jimmy

    Observation – I am thinking Abbott wouldn’t do anything to upset business. Plus a the half way house this would be would not appease anyone.

    You are right Abbott’s arguments lack logic but right now they don’t have to, the media aren’t holding him to account (see the Herald suns front page today to see where they sit), big business just see less tax and the return of workchoices, the intelligent liberal don’t agree with him but will shut up while his strategy is working and the swinging voter he is attracting doesn’t think enough, they have Andrew Bolt to do that for them.

  4. Observation

    Jimmy – You are right. And its so sad that such an embarrassment is portrayed in a position which demands the skills of a statesman.

    The one line policy statements from the last election campaign that were written on the back of a beer coaster in crayon cannot really be reported on though.

    But now it is one policy – Try to discredit the government as illegitimate, no matter what the cost to call an early election.

    Wouldn’t it be nice if we had an opposition actually putting forward thoughtful constructive criticism for the betterment of the country rather than self centred obstructionism from this lot. I continue to lose respect for a liberal alternative, the media and community members willing to be part of this circus.

  5. davidk

    The Libs have buckley’s in my view until Turnbull returns to the leadership.

  6. denise allen

    The language this man is now using is reminiscent of the archaic religious speil of the fanatical Catholics of the early centuries and of good ole Opus Dei.
    “Controversies about Opus Dei have centered around criticisms of its alleged secretiveness,[16] its recruiting methods, the alleged strict rules governing members, allegations that some of its lay members are made to work under quasi-slavery conditions[17] the practice by celibate members of mortification of the flesh,[18] its alleged elitism and misogyny, the alleged right-leaning politics of most of its members, and the alleged participation by some in authoritarian or extreme right-wing governments, especially the Francoist Government of Spain until 1978.”

    Howard gave permission for closet racists to put up their hands….Abbott has incited people to use the most base and disgusting language in order to defend their argument.

    When one has to reach down and use gutter language to defend their argument they have very little intelligent factual comment to bring to the debate.

  7. 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.

  8. Jimmy

    Michael R James – “The tide can only start coming back in” I think you are completely right on this, I saw an opinion poll early in the week (there are so many I can’t remember which one) but over the past three poll Labor’s primary vote had edged up a point each time, I nkow they have a long way to go but they have put some ticks in the win column so fr this year.

    Does anyone know when the MRRT will be introduced into parliament?

  9. Coaltopia

    All in all, it’s great for business confidence isn’t it Tony?

  10. Trevor

    The real change may come when the industry lobby groups realise the game is up. They have thrown the kitchen sink at this, but faced with in excess of 4 years of uncertainty which may hang over investment decisions they will back off. While they thought they may be able to stop carbon pricing they were prepared to back the coalition’s tactics. The game is up now though. The choice is; admit the CEF is not the scary industry killer and move on, or settle down for 4 years of trench warfare which they may still lose. I think withdrawal will be the order of the day.

    With industry then backing off and quietly telling Tony to pull his head in what will he do? My guess is he will find other causes to fight to the death over. Question is, how many times does he have to die?

    With all this hyper ventilating over Blood oaths and working every hour of every day to over turn the CEF, how will he make it next week let alone the election? No more bike rides or surfing, every hour of every day means no down time.

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