Why a May 18th Election may not happen

The media, both mainstream and social is full of references to a May 18th Election date. More recently dates in February and April keep popping up.

But what are the real options?

First an overview of the Constitutional requirements. (yes, I have put my ‘wonk’ hat on. We nerds do that from time to time.)

Whether held simultaneously with an election for the Senate or separately, an election for the House of Representatives must be held on or before 2 November 2019. The latest date for the election is calculated under provisions of the Constitution and the Commonwealth Electoral Act 1918 (CEA). Section 28 of the Constitution provides that the term of a House of Representatives expires three years from the first sitting of the House, unless it is dissolved earlier. The last federal election was held on 2 July 2016. The 45th Parliament opened on 30 August 2016 and its term would expire on 29 August 2019. Writs for election can be issued up to ten days after a dissolution or expiry of the House. Up to 27 days can be allowed for nominations, and the actual election can be set for a maximum of 31 days after close of nominations, resulting in the latest election date for the House of Representatives of Saturday, 2 November 2019.

Note:- A double dissolution cannot take place within six months before the date of the expiry of the House of Representatives. That means any double dissolution of the 45th parliament must be granted by 28th February 2019. Allowing for the same stages indicated above, the last possible date for a double dissolution election would be 4 May 2019. This could only occur if a bill that had passed the House of Representatives was rejected by the Senate twice, at least three months apart. To the best of my knowledge, there are no rejected bills which carry that cachet.

  • Section 32 of the Constitution says: “The writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.” Ten days after 29 August 2019 is 8 September 2019.
  • Section 156 (1) of the CEA says: “The date fixed for the nomination of the candidates shall not be less than 10 days nor more than 27 days after the date of the writ”. Twenty-seven days after 8 September 2019 is 5 October 2019.
  • Section 157 of the CEA says: “The date fixed for the polling shall not be less than 23 days nor more than 31 days after the date of nomination”. Thirty-one days after 5 October 2019 is 5 November 2019, a Tuesday.
  • Section 158 of the CEA says: “The day fixed for the polling shall be a Saturday”. The Saturday before 5 November 2019 is 2 November 2019. This is therefore the latest possible date for the lower house election.

The Prime Minister, whoever he is at the time, is the person who decides on the date and actually drives to Yarralumla to inform the Governor General of his decision. While the date of the election is in the hands of the PM, he is bound by Constitutional requirements. Should he choose to hang on as long as possible (29th August 2019) then there are possible unexpected consequences.  Apart from anything else, the Government is unlikely to have the numbers on the floor of the house by August 29th. A stand alone HoR election somewhere between May 18th and Nov 2nd is very unlikely.

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A half-Senate election has to be called by 18th May.  That could be a little earlier.  May 4th or 11th are also possibilities. The Australian Electorate would not be happy with two separate Federal Elections added to the necessary NSW State Election which is on 23rd March 2019. They may  get away with the May date on the basis of  ‘They have to!’ Hence the uncertainty of a particular Saturday in May.

April is taken up with School Holidays and with Easter. Slight variations, state to state, make this month very unattractive but highly unlikely as the conventional wisdom is that elections during school holidays are not well received by the electorate.

This leaves the pre-NSW Election dates of March 22nd and earlier to talk about.
By combining all the constitutional delays into the usual single 33-35 day time span between calling the election and the actual date of the election, we can work backwards to Saturday Feb 11th as the day the election needs to be called for a March 16th Election. Deducting seven days for each Saturday prior to Feb 11th means that should the Election be called the first weekend after New Year’s Day the election could happen as early as Feb 11th.

So Feb 11th, 18th, 25th, Mar 2nd, 9th and 16th are all possibilities. Followed by a gap to May 4th. There is little to choose between 18th Feb to 9th Mar so look for a Prime Ministerial Trip around Jan 7th or Feb 11th.

This whole treatise is complicated by the Prime Ministerial decision to bring the budget forward to April 2nd. If he follows through we are stuck with an early to mid-May election date. This will be a budget which has no chance at all of being passed by this Government as Bill Shorten’s reply to the Budget will happen on the Thursday night just before Scott Morrison, or whoever is PM at that stage, makes the long awaited drive to the Guillotine – err, I mean Yarralumla. At which time Parliament is prorogued and all parliamentary business is ended. The unfinished Budget would have to be re-introduced to the Parliament AFTER the new Government is sworn in.

In fact, placing the Budget speech on that date looks more and more like a furphy. One to lull the Opposition and his own restive party room into a false sense of ‘Business as usual’ until after the Budget reply. That means there could be hidden plans to hold the election earlier than expected by proroguing Parliament just before the advertised sitting week of 12th-14th Feb with an election on 16th March!

With backroom moves being made to replace him, it could be his way of avoiding any dangerous Parliamentary sittings at all.

 

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