Rudd is unlikely to be trigger happy

The prospect of a double dissolution has been talked up all year. Now it seems the legislation for an emissions trading scheme may finally provide the means to hold one.

Under section 57 of the constitution, persistent disagreement between the houses of federal parliament enables the government to send the whole of both houses to the people for re-election. If the government wins the ballot, and the disagreement persists, a joint sitting of both houses can vote to pass the disputed bills.

There have been six double dissolutions, the last in 1987. Only the 1974 poll was followed by a joint sitting. It enabled the Whitlam government to have a number of bills passed, including one that brought about what has become the Medicare scheme.

The significance of a double dissolution is not only that it would allow the Rudd Government a convenient means of holding an early poll for both houses. It could also enable the Government to have its ETS legislation enacted at a joint sitting in its original, preferred form without having to negotiate with whoever holds the balance of power in the Senate.

The Senate rejected the ETS legislation in August and three months have since elapsed. The final step needed to permit a double dissolution is for the House of Representatives again to pass the bill and for the Senate again to reject it, fail to pass it, or pass it with amendments to which the lower house will not agree.

There is only one major High Court decision on what is meant by ''fails to pass''. That case arose in 1975 over the Petroleum and Minerals Authority Bill, one of six used by the Whitlam government to call the 1974 election. On December 13, 1973, the Senate had adjourned the debate on the bill, to be resumed when the Senate sat again in February 1974. As it happened, it was not given the chance.

The High Court held that the Senate adjournment was not a ''failure to pass'' the bill. So, it had not met the requirements of section 57 and had not been validly enacted at the joint sitting.

The chief justice, Sir Garfield Barwick, stated that the Senate is entitled ''to have a proper opportunity for debate'' and that section 57 is only satisfied when ''the time has arrived for the Senate to take a stand''. If, at that time, the Senate ''merely prevaricates'' then it will have ''failed to pass'' the bill.

Barwick made it clear there can be a ''failure to pass'' even though the Senate has not exhausted all of its processes and even if it has an inquiry on foot. He gave the example of the 1951 double dissolution called by Robert Menzies, in which the relevant bill was referred to a parliamentary committee.

The High Court's approach means that a mere adjournment of the Senate is not a ''failure to pass''. More is required. It needs to be shown the Senate has had a reasonable opportunity for debate and has been able to conduct its customary processes of deliberation and inquiry.

My view is that a failure to resolve the fate of the ETS legislation by the end of the current Senate sittings will amount to a ''failure to pass''. The Senate has had an opportunity for long debate and could some days ago have sent the bills to an inquiry but did not do so. Any decision to establish an inquiry now would be strongly suggestive of delay rather than genuine deliberation. The language of the protagonists also shows this, with an inquiry seemingly put forward to postpone the vote rather than explore the policy arguments.

Even if the ETS legislation produces a double dissolution trigger, we should not expect an immediate election. Such triggers often arise but are rarely invoked. The Prime Minister need not be in a hurry to advise the Governor-General to dissolve both houses. The trigger can be used any time before the last six months of the term of the House of Representatives, giving Rudd until August 10, 2010.

The Government has an incentive to wait until after the middle of next year. A double dissolution backdates the terms of senators to the prior July 1, meaning such a poll before July 1, 2010 would cut the term of the next Senate by up to a year. This would force the Government, if it wishes to keep the elections of both houses in sync, to go to the polls again in significantly less than three years.

The Government may be about to gain a double dissolution trigger, but we should not expect it will be used any time soon.

George Williams is the Anthony Mason professor of law at the University of NSW.