What is the path to an early election? Crikey takes a look at the options.

Yesterday Prime Minister Malcolm Turnbull announced the Governor-General would, on his advice, prorogue Parliament to sit for an extra three weeks commencing April 18 to consider three pieces of legislation:

  • Building and Construction industry (Improving Productivity) Bill 2013 [No. 2] and Building and Construction Industry (Consequential and Transitional Provisions) Bill 2013 [No. 2] (the ABCC Bills); and
  • the Fair Work (Registered Organisations) Bill 2014

The first pair of bills would re-establish the Howard-era Australian Building and Construction Commission, which was abolished by Labor when it was in government. The ABCC would replace the Fair Work Building Industry Inspectorate set up by Labor, would govern the construction sector, and would be given powers to inspect and enforce industry standards. The government has claimed that the legislation is designed to tackle what the government believes is thuggery and militancy in the building industry, and the government says it would improve productivity. But as Crikey‘s Bernard Keane has pointed out, the data doesn’t back up the government’s claims that abolishing the ABCC reduced productivity in the sector.

The government is using the findings of the Royal Commission into Trade Union Governance and Corruption to justify the passage of the legislation, despite the fact that the legislation precedes the findings of the commission’s report.

Labor and the Greens oppose the legislation as it would deny people the right to representation and could compel people to given testimony without legal representation. Although Turnbull this morning described the ABCC as a “tough cop on the beat”, the ABCC has no criminal enforcement powers, and Labor argues investigating criminal activity is best left to the Australian Crime Commission.

The Fair Work (Registered Organisations) Bill 2014 is aimed at requiring unions to be regulated in the same way as companies and directors. It would require union officials to disclose their pay, personal interests and payments made. The unions would be required to be more transparent in how money is spent.

The ABCC legislation has been reintroduced to Parliament, but the registered organisations legislation has not been reintroduced since its failure to pass last year.

All three pieces of legislation were last rejected by the Senate in August 2015 by one vote. The Greens and Labor are opposed to the legislation, so the government will need to convince six of the eight crossbench senators to vote for the legislation. This is where they currently sit on the legislation:

For:

  • South Australian Family First Senator Bob Day, but Day has said he will not lobby his colleagues to back the bills.

Against:

  • Victorian independent Senator John Madigan;
  • Tasmanian independent Senator Jacqui Lambie — she said on Q&A last night she would not back the legislation, and would not be blackmailed into supporting it for her political survival; and
  • Queensland independent Senator Glenn Lazarus — he has said he would not support the legislation unless the body it established essentially became a federal Independent Commission Against Corruption, which would be a vastly different entity to the ABCC.

Undecided: 

  • South Australian independent Senator Nick Xenophon — he has supported the legislation, but he said yesterday he would only support a second reading of the legislation, and he might introduce some amendments;
  • New South Wales Liberal Democrat Senator David Leyonhjelm — he is opposed to the legislation in its current form but has flagged he would have supported it if his simple amendment to the legislation had passed last time. This amendment would have put a sunset clause on the operation of the ABCC to shut down after eight years;
  • Western Australian Palmer United Party Senator Dio Wang — he is supportive of the legislation, but like Lazarus, he wants a broader anti-corruption commission; and
  • Victorian Motoring Enthusiast Party Senator Ricky Muir — Muir will support debate on the legislation but has not indicated how he will vote.

This means the government will have to convince all of the undecideds and flip one of the senators opposed to the legislation in order to pass the bills and avoid a double dissolution election. If it succeeds Turnbull has said the government would likely hold off on an election until September. Employment Minister Michaelia Cash this morning said the government was open to negotiating on amendments to the legislation but would not consider amendments that would “change the fundamental integrity of the bill”, such as introducing a federal ICAC.

These are the scenarios for how it could all play out:

Scenario 1
The Senate votes down the legislation with no amendments. Result: double dissolution election. Full House of Reps and full Senate election.

Scenario 2
The Senate passes the legislation with no amendments. Result: no double dissolution on ABCC but potentially a double dissolution on the Clean Energy Finance Corporation or any other legislation the government has failed to pass once but could try to pass in the next sitting period.

Scenario 3
The Senate votes to stop debate on the legislation. Result: double dissolution. Full House of Reps and full Senate election.

Scenario 4
The Senate passes the legislation with amendments not agreed to by the government. Result: double dissolution. Full House of Reps and full Senate election.

Scenario 5
The Senate passes the legislation with the amendments. Result: no double dissolution election. Full House of Reps election and half-Senate election.

In the third extra week of Parliament, the government will hold an early budget on May 3 and allow time for Opposition Leader Bill Shorten to deliver his reply on May 5. After that, if the government has the double dissolution trigger it needs, Turnbull has said the election would be held on July 2.

One potential issue for the government is Day’s High Court challenge to the Senate voting reform legislation passed in Parliament last week. It’s not clear when exactly the High Court could hear and make a decision on the case, but in the event that Day’s appeal was upheld and the legislation was overturned, the government would be stuck with the old preferential voting system for the Senate. This could result in the crossbench being easily returned to the Senate, whereas under the new legislation only Labor, Greens, Coalition, and Nick Xenophon Party senators would be likely to be elected.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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