Fixed term federal elections - an alternative approach?

There are a couple of popular arguments for having fixed terms for the House of Representatives. One is that it is unfair that the leader of one of the two major contestants in the forthcoming election, the Prime Minister, has the power to choose the day for the election to give his party the best possible political advantage. (Of course, for a significantly early election they must give the Governor-General acceptable reasons for holding the election so early.) A second major argument put forward is that business finds the third year of the parliamentary term has become a media circus about possible election timing, creating far more doubt and delay in business planning than would happen with a fixed term election.

Most discussion of introducing fixed term federal elections in Australia revolves around the difficulties in achieving Constitutional reform in general, and specifically those particular Constitutional reforms. Usually the proposal is to require House of Representatives elections to be on a fixed day, followed then by full Senate elections to be on that same fixed day.

This would combine four-year terms for the House of Representatives with a shortened Senate term from six to four years. It would also change the current continuing Senate where one half is elected every three years. Unresolved is what we might do to cater for a loss of confidence in the government mid-term. On further reflection, the usual suggested process is to first plan a Constitutional change to a fixed-term House of Representatives and then to see what further Constitutional changes are needed to enable the timing changes for the Senate, for loss of confidence, and so on.

Alternatively, what about starting this process from the other end? Could we fix the periodic half-Senate election for a particular day by legislation and then require the holding of a House of Representatives election on the same day? While this would still leave a Prime Minister free to call an early House election for any day they could convince the Governor-General is appropriate, a legislatively scheduled House of Representatives election would still occur the same day as the next half-Senate election. This proposal could lead to renewing federal parliamentary terms in small steps, by legislative change, before considering entrenching the changes in Constitutional reform later.

The big question, however, is: is this possible given the current Constitutional provisions governing periodic half-Senate elections? Probably yes. The Constitution currently specifies a half-Senate election some time during each third year. Prime Ministers almost always time their House of Representatives elections so that both elections can be held together. The last time a separate House or Senate election was held was the 1972 House of Representatives election.

The Constitution sets the maximum period for a House of Representatives at three years and requires writs for a fresh election to be issued within 10 days of the expiry of that period. It also provides that the new Parliament will meet within 30 days of the day appointed for the return of the election writs, without specifying when those writs need to be returned. The Commonwealth Electoral Act, however, has many additional provisions such as setting the timing between the issue of writs and the close of nominations, the time permitted until polling day and the time by which the election writs must be returned: to name just three. Presumably the Commonwealth Electoral Act could also prescribe a particular day for the periodic half-Senate election required by the Constitution every three years. It could also require an election for the House of Representatives to be held on each such day.

Federal elections are often said to occur on average two and a half years apart, but between Christmas 1984 and Christmas 2008 (both just after an election), there were eight elections, which averaged a full three years apart. If the Parliament were to set a day every three years for the periodic half-Senate election and require a simultaneous election for the House of Representatives, it would simply be legislating a practice established by Prime Ministers over the last quarter century. Surely a reasonable thing to do.

While a Prime Minister would retain the power to seek the Governor-General’s agreement to an extra election for the House of Representatives, such an election would be a “brave” step to take (in the words of Sir Humphrey) given that a normal election is going to occur at the regular three-year interval anyway. A Prime Minister calling an early election might need to answer for the additional cost and disruption, given that the next election was already scheduled and would still be held.

This alternative proposal leaves unanswered the question of four-year terms for the House of Representatives and the consequential difficulty in getting agreement to either increase the Senate term to eight years or reduce it to four years. But perhaps it would be wiser to trial fixed terms for the House of Representatives first, then seek to entrench them in the Constitution later. We could look again in about a decade at increasing the term to four-year terms if popular opinion then still supports longer terms.

Another unanswered question is which day to choose for the three-yearly election. Should it be October-November as John Howard regularly chose, or around March as Paul Keating chose? The question is closely involved with how best to time the election with the following financial year’s budget development, for which an incoming government would want some time. Is February-March early enough? It is also important to consider the length of time between the election of new Senators and the commencement of their terms, on July 1 following the election. February-March would keep that period reasonably short. It would also mean every third year Government would get some new blood just prior to finalising the budget for presentation to the Parliament.

It seems no constitutional amendment would be required to give this alternative proposal a run. Parliament could amend the Commonwealth Electoral Act now to set a date for the 2010-11 half-Senate election for any day up to Saturday, April 16, 2011 and provide that an election for the House of Representatives be held on the same day. The current arrangements governing a loss of confidence in the government or disagreement between the House of Representatives and Senate could continue unchanged.

True, this proposed legislative change could be unmade by Parliament at any time. If a couple of successive fixed-term elections are trialled this way, however, people might then be more amenable to entrenching the arrangements in the Constitution.