The Election 2016

An election has been called for 2 July 2016. There are a host of legal issues and political issues which come into play.

Dealing with the political first, it means that a government (of whatever persuasion) will minimise doing anything which it considers may be unfavourably received by the people.

The situation is complicated in the unique circumstances of 2016 where a double dissolution election has been called by the Prime Minister yet the budget has not been introduced let alone passed.

The so-called caretaker period only starts after the dissolution of the House of Representatives by the Governor-General. So even though an election has been called both houses of Parliament cannot be dissolved until after all the budget legislation has passed.  This is a most unusual situation although obviously not unlawful.

The political situation of a federal election on the immediate horizon means that anything that could be perceived as controversial will not be done.

As far as migration law is concerned it could be that a host of decisions usually made to come into effect on 1 July just will not take place. A government will often govern in this period on the adage that if it does not have to be done and there is no particular advantage to doing that thing then it will just not be done until after the election.

Of particular interest in migration law is that usually and annually, many changes come into effect on 1 July. In 2016, 1 July is the day before the Federal Election! It may be therefore that there will not be a tinkering with the Skilled Occupation List or the Consolidated Sponsored Occupation List, or adjusting the TSMIT (the subclass 457 income threshold which is currently $53,900) or anything else which is seen as an adjustment to migration law.

Once the House of Representatives is actually dissolved then the government goes into formal caretaker mode.

The Department of the Prime Minister and Cabinet has published a document called ‘GUIDANCE ON CARETAKER CONVENTIONS’ specifically for the 2016 elections. This states :

1.1  Successive governments have accepted that, during the period preceding an election for the House of Representatives, the government assumes a ‘caretaker role’.  This practice recognises that, with the dissolution of the House, the Executive cannot be held accountable for its decisions in the normal manner, and that every general election carries the possibility of a change of government.

1.2  The caretaker period begins at the time the House of Representatives is dissolved and continues until the election result is clear or, if there is a change of government, until the new government is appointed.

1.3  During the caretaker period, the business of government continues and ordinary matters of administration still need to be addressed.  However, successive governments have followed a series of practices, known as the ‘caretaker conventions’, which aim to ensure that their actions do not bind an incoming government and limit its freedom of action.  In summary, the conventions are that the government avoids:

• making major policy decisions that are likely to commit an incoming government;
• making significant appointments; and
• entering major contracts or undertakings.”

The question is what are “ordinary matters of administration”? The writer has inquired during past election periods of the status of the Ministerial Discretion in the Migration Act. These decision are regarded as “ordinary matters of administration” hence Minister keeps making these decision right up until the election eve. Indeed often there is an avalanche of such decision made in the weeks up to an election.

It is expected that the new student regime will come into force on 1 July 2016 because the regulations to change that regime were enacted even before the election was called. The host of things which must be done thereafter to give effect to that regulations would probably be regarded as “ordinary matters of administration”. Although if the implementation attracts political attention during the election campaign it may mean that any implementation may be stalled in part of in full until after the election.

Ordinarily the budget contains a host of changes to each portfolio including the Department of Immigration.  These changes will fall outside the caretaker period because the House of Representatives will still be in session.  So the Immigration program for example will set during the budget process.  Political considerations will determine how other changes are made or postponed.

The Senate

The Senate has a hidden but very important role in shaping migration law. All governments in recent years have enacted both legislation and regulations with an eye to the fact that the government does not have a majority in the Senate. Often it means that the Explanatory Statement softens the effect of regulations.  The Explanatory Statement can be used in submissions particularly before the tribunal or the court.

There are 2 things which will affect the make up of the Senate post 2 July 2016. One is the new voting system which will make it harder for some of the micro parties to gain a ‘multiplier’ on their miniscule primary votes. The other factor going in the opposite direction is that the quota to be elected will be much lower because there will 12 Senate vacancies up for re-election rather than the usual six.

The new voting system will make it harder for the micro parties because electors will not be forced to follow the micro parties designated preference exchange. Voters themselves will now have more flexibility to select their preferences. This is because each party will have a square above the line and the voter must mark at least 6 preferences and can go on to mark all preferences if he or she wishes. Below the line the voter must mark at least 12 squares are can go on to mark all squares if he or she wishes.

But the big changes is making it easier for voters to make preferences above the line. This will favour the major parties and bigger minor parties (like the Greens).  So we are likely to see an end to the micro parties winning seats in the election.

However the reduction in the quote could see a number of independents elected. The quota works like this, firstly s quota is defined as the total number votes cast divided by one plus the number of Senate positions up for re-election plus one vote.  A Senator is elected which he or she receives the quota with any excess votes above the quota being distributed as preferences.

So for a double dissolution the number of Senate position plus is 13 wherefore the quota is the total number of votes cast divided by 13 plus one vote (obviously there then can’t be 13 quotas).  However a quota for this election will be 7.69% of the vote plus one vote. Usually it is the last quota in each state which is up for grabs. Usually it is a three way tussle between a coalition candidate, a Labor candidate and a minor party candidate. In that final allocation of preferences one can see that the one of those three who is ahead stands a good chance of being elected even on less than 3% of the votes. Often the major parties do not preference each other so that a Greens candidate for example need only be ahead of either Labor or the Coalition to stand a good chance of winning. It is only when the minor party candidate is trailing BOTH Labor and the Coalition candidate that the minor party will definitely lose out.

The lower threshold for the quota will probably see minor parties have at least one representative in each state and in some states will have even two. What will probably happen though that it won’t be these micro parties who club together to preference each other. Now the preferencing will be more in the hands of the voter.  It will all be more transparent.

Also significant in a double dissolution is that all current Senators are up for re-election, which will definitely mean that we will have seen the last of some of these micro party Senators. In particular it unlikely any Palmer United Party candidates will be successful nor will, for example will there be a motoring enthusiast party. However some independents are possibly able to win.

The Senate will have a shakeup on 2 July 2016 and its makeup after that date will have some impact on migration law.