The government could keep the establishment of a building industry watchdog as a double dissolution trigger despite the fact the bill has not been rejected twice by the Senate, a constitutional expert says.
Senior members of the government have flagged they are willing to dissolve both houses of Parliament if the Senate does not pass legislation on the Australian Building and Construction Commission.
Speculation was rife the government had abandoned plans for an early election based on the ABCC bill, after it was left off a list of legislation the Senate will debate during the next sitting week.
But on Sunday, the attorney general, George Brandis, told Sky News the government still had the ABCC legislation up its sleeve as a trigger.
“There is a constitutional basis for a double dissolution bill at the moment, when there has been a rejection on a second time after the intervention of three months of the same bill, or there has been a failure to pass that bill,” he said of the ABCC legislation, citing two options in section 57 of the Australian constitution for calling an early election.
Failure to pass usually refers to the Senate “delaying, stalling or otherwise prevaricating” on pieces of legislation, professor of law at the University of New South Wales, George Williams, told Guardian Australia.
Other than that, the definition of failure to pass can be wooly, Williams said, and has in the past been used in routine Senate procedures such as referring a bill to a committee or adjourning debate.
“There’s a precedent to set the threshold really low,” he said.
In 1974, then prime minister Gough Whitlam called a double dissolution election after the Senate adjourned debate on the Petroleum and Minerals Authority bill. A subsequent high court case on the calling of the election, after Labor was returned to office, found that adjourning debate did not constitute “failure to pass” the bill.
But the results of the election could not be reversed.
“You can’t challenge the outcome,” Williams said. “The government holds the cards here.”
Voters quickly forget about the “mechanics” of why an election was called once campaigning on issues begins, he said.
The government had the option of bringing forward debate on the ABCC bill in the next sitting period later this month which is the last before budget week in May.
Instead, it opted to fast-track Senate voting reforms.
“We don’t have the numbers in the Senate. So that means, if we want to make sure that we can get the electoral reform bill to a vote, we need to reach an agreement with the Greens for extra hours. The Greens have agreed to do that, but part of that arrangement is that we can only deal with bills that they’re comfortable with,” the communications minister, Mitch Fifield, told ABC’s Insiders program on Sunday.
The government will bring forward the bill during budget week, Fifield said.
Brandis rejected suggestions the Coalition had made a deal with the Greens to pass Senate reforms as long as the ABCC was not raised.
“I’m sure there’s no truth in that,” he said.
It is believed the Greens agreed to extend hours in the Senate specifically for the passage of Senate voting reform bills, but there was no side deal relating to the ABCC.
Some commentators have argued the government is insistent on passing voting changes as soon as possible so it can call a double dissolution election.
Timing is a factor, as legislation on voting reform must be in place for three months before an election, but the government is prohibited from calling a double dissolution within six months of the House of Representatives term expiring.
The House’s term expires on on 12 November, meaning a double dissolution must be called at the latest on 12 May, which is the day after the budget is announced. If the government wanted to use the ABCC legislation as a trigger, it would need to be debated on budget day.
“It gets pretty messy at that point,” Williams said. “If they’re that keen, they [the government] have other triggers.”
Legislation to abolish the Clean Energy Finance Corporation and to set up an oversight body for the governance of registered organisations including trade unions, have both been rejected by the Senate twice, making them viable early election triggers.
