Scott Morrison was meant to call the election last weekend… but he didn’t.
We know the election will likely fall on a Saturday in May but, frustratingly, the government has resisted giving us an exact date, with the 18th or 25th both firming as favourites. Since Australia doesn’t have fixed parliamentary terms for the House of Representatives, Morrison still has considerable control over when the election is held. Without a fixed date, the timing of the election is determined by a complicated series of provisions in the Constitution and Electoral Act.
When does the election have to be called by?
The Constitution does not prescribe terms for the House of Representatives. Instead, MPs have a flexible term, and there is a requirement that the house must continue for no longer than three years after its first sitting date (although it can be dissolved earlier). Since the current parliament first sat on August 30, 2016, and the latest an election can be held is 68 days after the dissolution of parliament, November 2 is the last possible date for an election in the House of Representatives.
But the Senate complicates things, and effectively rules out a November election. Thanks to a constitutional quirk, there are different rules for the House of Representatives and the Senate. Senators have fixed six year terms from their first sitting date. Every three years, an election is held for half the Senate. Governments generally tend to align the election in the House of Representatives with the half-senate election.
Under section 13 of the Constitution, a senator’s term begins on July 1 after their date of election. The exception is when there was a double dissolution election, as was the case in 2016, where the term begins on July 1, preceding their election. This means that the next half-senate election must be held before July 1, 2019. Except that, according to the Australian Electoral Commission, it takes about six weeks to properly count up the senate votes.
On the weekend, the AEC’s website said this meant May 18 was the latest possible date for an election to be held so that the votes could all be counted in time for the new senate term on July 1. But just as Morrison was toying with the possibility of pushing the election back a week, this section disappeared from the AEC website. Still, the commission is concerned that a later date could make it difficult to get the count done in time.
The government could go down the unconventional path of holding separate elections for the House of Representatives and Senate. This has fallen strongly out of vogue however, and the last separate senate election was held in 1970.
What’s the situation elsewhere?
While the prime minister still has some discretion over the date of the federal election, the states have largely moved away from this model. All states barring Queensland and Tasmania now have fixed four year terms. Following a 2016 referendum, Queensland will now introduce them from 2020 onwards. The United States has had elections fixed on the first Tuesday in November since the 19th century, a result of the needs of a then-agrarian based society. Other Commonwealth countries have fixed their election dates, with Canada passing legislation in 2007, and the United Kingdom in 2011.
Why can’t we have fixed four-year terms like a normal country?
There’s broad-spectrum support for fixed terms. In 2017, decrying the short-term three-year cycle, Bill Shorten called for fixed four-year terms, and managed to get support from Malcolm Turnbull. In 2007, Kevin Rudd promised to introduce fixed terms if elected, but it never happened.
The biggest roadblock that stands in the way of introducing fixed terms is the need for a referendum. A referendum requires a majority of votes in a majority of states to pass, and history suggests Australians are averse to change — since Federation, just eight of the 44 referendums have been carried. Four referendums to align house and senate terms have been introduced, and all have failed, with the most recent attempt coming in 1988.
The move toward fixed terms would involve so much clumsy constitutional wrangling that the ABC’s psephologist-in-chief Antony Green can’t see such a proposal getting up in a decade. Still, there are undoubtedly benefits to fixed terms — prime ministers would no longer control the timing of an election, meaning Scott Morrison wouldn’t be able to stall and thereby get more taxpayer-funded advertising. A longer cycle could reduce the myopic short-termism and instability that has crippled the last decade of Australian politics.
But fixed terms aren’t particularly exciting election promises, so don’t expect a referendum any time soon.