Australia: Double dissolution: what it means for agencies

Last Updated: 6 April 2016
Article by Cain Sibley and Arthur Marusevich

Most Read Contributor in Australia, August 2016

Key Points:

The caretaker period means that the Government carries out the necessary functions to keep the country running, and the Australian Public Service needs to protect its apolitical nature.

The Prime Minister has foreshadowed that he will ask the Governor-General for a double dissolution election if the Parliament does not pass the Building and Construction Industry Bill 2013 which seeks to reintroduce the Australian Building and Construction Commission. What is a double dissolution, and how will it affect the ordinary day-to-day life of the public service?

What is a double dissolution?

A double dissolution occurs where the Governor-General simultaneously dissolves the House of Representatives and the Senate under section 57 of the Constitution over a disagreement between the two Houses of Parliament. A double dissolution election can be called if the Senate twice rejects or fails to pass a law which the House has passed.

How is a double dissolution election different from a general election?

In a general election, the Governor-General dissolves the House of Representatives and issues writs for the election of the House and half of the Senate. In other words, in a general election only half of the 76 Senate seats are decided. In a double dissolution, all seats of the Senate are declared vacant and there is a full Senate election instead of a half election.

When was the last double dissolution and what was it about?

The last double dissolution was in 1987. The trigger in this instance was the legislation for the Australia Card. The legislation for a national identity card was knocked back by the Senate and the Government, led by Prime Minister Hawke, asked the Governor-General for a double dissolution. The Hawke government was returned but still without a majority in the Senate. The Australia Card did not feature prominently in the election campaign and ultimately the Government abandoned the proposal.

Does a double dissolution affect the caretaker conventions?

The fact that the 2016 election may be a double dissolution election rather than a general election does not affect the caretaker conventions.

The idea of a caretaker Government is purely conventional. A caretaker Government operates during the period between dissolution of the House of Representatives and until the result of the election is known (if the Government is returned) or when the new Government is appointed. The role of a caretaker Government is to carry out the necessary functions to keep the country running.

During the caretaker period, the Government usually cannot:

  • make major policy decisions that are likely to commit an incoming Government;
  • make significant appointments; or
  • enter into major contracts or agreements.

What matters qualify as major or significant are matters of judgment and common sense. The Department of Prime Minister and Cabinet provides some guidance on its website. It should be noted that it usually is possible for a caretaker Government to make major or significant decisions in consultation with the relevant opposition spokesperson.

The caretaker period also means that the Australian Public Service needs to protect its apolitical nature. This includes:

  • ensuring that Commonwealth resources (for example, advertising) are not expended for party political purposes;
  • ensuring that ministerial and agency websites are maintained so that there is no confusion about whether the agency is promoting a particular policy or proposal;
  • taking similar care with an agency's social media; and
  • ensuring that assistance provided to Ministers is limited to the day-to-day business of government and does not extend to assisting with policy development or to promote an election campaign.

How will the election affect legislative instruments?

For legislative instruments that are disallowable under the Legislation Act 2003 (Cth), an election introduces complexities for disallowance periods. Once the House of Representatives has been dissolved, the 15 sitting days' period is paused until the next sitting day. However, if a notice of motion to disallow an instrument has been introduced in either House of Parliament, the 15 sitting days' period starts again when the Parliament next sits.

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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