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BFCSA: Constitutional challenges for Australian election 2nd July. Bob Day High Court challenge

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Malcolm Turnbull’s push for double dissolution faces challenge in Senate and Court

Crossbenchers, Greens and Labor ponder political and constitutional moves to counter prime minister’s risky strategy

21 March 2016

 A double-dissolution election on 2 July appears likely as Senate crossbenchers insist they will not pass Malcolm Turnbull’s industrial laws, but the prime minister’s high-risk political tactics could also provoke a Senate rebellion and a constitutional challenge.

Turnbull announced on Monday he had asked the governor general to recall parliament for three weeks from 18 April to consider the long-stalled industrial laws, and declared that he would call a double-dissolution election for 2 July if they were not passed.

With Labor and the Greens implacably opposed to the laws, Turnbull needs six of the eight crossbench senators to pass the bills. On the current positions of the crossbench senators that appears very unlikely.



Bob Day launches high court challenge against Senate voting changes



Family First senator says Senate reforms disenfranchise voters, but constitutional experts rate the challenge a poor chance of success.

Three senators – John Madigan, Ricky Muir and Jacqui Lambie – have confirmed they will vote against them. If they each stick with this position that would sink the bill. Three others – Glenn Lazarus, Dio Wang and Nick Xenophon – are seeking amendments.

Lambie told the ABC’s Q&A program on Monday: “I will be voting no to the ABCC [bill]. I will not be blackmailed.”

But it appears the Greens and the Labor party are considering tactical moves of their own, based on the fact that the governor general can call politicians back to Canberra, but the Senate itself determines what it considers. It could refuse to debate the bills, or delay consideration to try to frustrate Turnbull’s political timetable.

The government says it is offering the Senate three weeks in which to debate and vote on the bills – to reconstitute the Australian Building and Construction Commission and the Registered Organisations Commission. It says if the Senate refuses to consider them, or chooses to talk about other issues, that would still constitute a “failure to pass” under section 57 of the constitution and therefore still provide a trigger to call a double-dissolution election.

The attorney general, George Brandis, told Sky News: “The Senate will sit for three full weeks and this will be its business, and in a sense every delaying tactic that the Labor party and the Greens embark on will be yet further evidence of the Senate using unusual measures so as to constitute a failure to pass within the meaning of section 57. The Senate was established by the constitution to deliberate upon legislation. The deliberation upon legislation may include thorough consideration of the legislation but it cannot be delayed forever.”

But the Greens leader, Richard Di Natale, warned such a standoff would “end up in the courts”.

“We think it is bad legislation,” Di Natale told Guardian Australia. “Our intent is to see it defeated. We will assess the best way to defeat it. But ultimately, if it doesn’t come to a vote then whether it represents a double-dissolution trigger is likely to be tested in the courts.

“The government says that if passage is frustrated, it can still be used as a trigger. But it is an open question ... that clearly would be tested in the courts.”

Labor is also considering its tactical options, with a spokeswoman for the Senate leader, Penny Wong, saying it was up to the upper house to decide what work it did after parliament was recalled.

“This is a parliamentary democracy – neither the governor general nor the prime minister can unilaterally determine how the Senate deals with business before it,” the spokeswoman said. “Labor will give careful consideration to how we respond to Mr Turnbull’s radical move today. We’ll take some advice. And we’ll consult with other parties and independent senators.”


Constitutional lawyers said it was likely the courts would find in the government’s favour in a post-election court challenge.


Prof Anne Twomey of the University of Sydney said: “I think it would certainly build up the government’s case for it to be a failure to pass. The high court would look at whether the Senate had been given a reasonable opportunity.”

Prof George Williams of the University of New South Wales was more definitive: “I think it would be a failure to pass. The government has deliberately given the Senate an extended period to consider the bills. I think the court would say that was enough time for the Senate to have made a decision one way or the other.

“If the government wins the election and puts the bill through a joint sitting then that could be tested in the courts.”  Turnbull said he was challenging the Senate to pass the laws because “the time for playing games is over”.

He said the election would be fought on the question “who do you believe is best able to continue successfully to manage Australia’s economic transition?”.

“Who has the policies and the leadership that will ensure there is more investment, more innovation, greater productivity, and better jobs for your children and grandchildren? That is the question. Every single policy we have set out is calculated to deliver those outcomes.”

The Labor leader, Bill Shorten, said his party would “not be distracted” from issues including health and education spending, climate change and reducing tax concessions to help pay for it.

Turnbull has also brought forward the budget by one week to 3 May to fit the double-dissolution timetable.

Asked why the treasurer, Scott Morrison, had been insisting the budget would be on 10 May until shortly before his announcement, the prime minister told ABC’s 7.30 program: “The treasurer was aware that we were considering a whole range of options but until I made the decision to change the date of the budget, the budget was on the 10th of May.”

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