What happens to the House and Senate if an election is called early in 2013?

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What happens to the House and Senate if an election is called early in 2013?

Posted 15/11/2012 by Brenton Holmes

Recently the possibility had been raised that an election may be called for only the House of Representatives in the early part of 2013. Usually, a half-Senate election would also be held. But according to the Australian elections timetable prepared by the Parliamentary Library, the earliest that a half-Senate election can feasibly occur is 3 August 2013.

The termination of Parliament

For an election to be held, the existing (43rd) session of Parliament must first be terminated. This is formally done by the Governor-General on the advice of the Government. The Governor-General can terminate a session of Parliament in three ways
  • by dissolving the House, or
  • by simultaneously dissolving the House and the Senate, or 
  • by proroguing the Parliament.
Parliament is usually terminated by prorogation followed by the dissolution of the House of Representatives.
To ‘prorogue’ the Parliament is a technical term for calling a halt to a session of Parliament. The Parliament goes into ‘recess’; all business lapses; it cannot operate in the coordinated way required to pass legislation—although bills already passed by both houses may receive the Governor-General’s assent and become law. Strictly speaking, a prorogued legislature remains in existence; the House and Senate continue to exist as discrete assemblies and all the Senators, Members and ministers remain in office and retain their privileges and immunities. But by convention, as soon as the Australian Parliament is prorogued, the House of Representatives is dissolved shortly thereafter and the date is fixed for the election of a new House.  
When the House is dissolved, Members of the House cease to be Members, and all House committees cease to exist—although Senators continue to be Senators and Senate committees may continue to meet. Ministers remain in their ministerial posts, but the government enters ‘caretaker’ mode and carries on only routine administration.
The election of a new Parliament 
When an election for the House of Representatives is called, an election for all the territory-based Senators also occurs, and an election for half the state-based Senators (whose six-year terms are expiring) usually takes place at the same time. The Senate is only dissolved if there is a double dissolution. This can only occur in accordance with section 57 of the Constitution. Such an option for early 2013 is very unlikely given the circumstances and timeframes demanded by section 57.
There is no constitutional requirement that elections for the House of Representatives and Senate be held simultaneously, but they are generally held together to minimise costs. 
If the House of Representatives were to be dissolved in the first half of 2013, the ensuing election would be for the House only, as a half-Senate election cannot be held before 1 July 2013—for the reasons discussed below. A separate half-Senate election would have to be completed before 30 June 2014 when the terms of half the state-based Senators expire.
The timing of a half-Senate election
Unlike the House of Representatives, the Senate is a continuing body, with 72 state-based Senators elected for six years, but with overlapping terms, so that half the Senate is replaced every three years. The term of office of the four territory-based Senators is slightly different—up to three years—as it is linked to House of Representatives elections (see below).
Section 13 of the Constitution requires that an election of Senators (in a ‘periodical’ or ‘half-Senate’ election) be held within the year before the places are to become vacant.  
For state-based Senators elected in 2007, their terms expire on 30 June 2014, so a half-Senate election must be held within a year of that date—that is, between 1 July 2013 and 30 June 2014. This time frame must accommodate the issuing of the writs by each of the state governors, which sets the date for the election and must be on a Saturday. An election date of Saturday 3 August 2013 would meet these requirements.
Should an early, House-only election occur before July 2013, the composition of the Senate would remain unchanged unless there is a change in the representation of the territory-based Senators. Such a change is possible given that the election of territory-based Senators coincides with the House election, and the successful candidates begin their Senate terms on the date of their election. (A territory-based Senator who was elected at the time of an early, House-only election would not have to stand at the subsequent half-Senate election.) 
The Senate’s composition beyond 30 June 2014 cannot further be known until a half-Senate election has taken place and candidates have been elected to fill the 36 vacancies created by the expiring terms of half the state-based Senators. Of course, a double dissolution election could dramatically affect the composition of the Senate, but this is very unlikely to occur.
What we do know is that:
  •  of the state-based Senators whose terms expire on 30 June 2014, there are 14 Liberals, 16 ALP, two Nationals, one Independent, and three Greens 
  • of the ongoing state-based Senators whose terms do not expire until 30 June 2017, there are 13 Liberals, 13 ALP, three Nationals, one DLP and six Greens  
  • if the party representation of the territory-based Senators remains unchanged there will be two Coalition and two ALP Senators representing the territories at least until a subsequent election occurs.
Whatever the outcome of the next House of Representatives election and half-Senate election, the Greens will hold at least six Senate seats—and possibly more—from July 2014 to 30 June 2017. During this period, the Greens will continue to hold the balance of power in the Senate unless either the ALP or the Coalition parties win an unusually high number of seats in the half-Senate election—or at any later double dissolution election—sufficient to secure a majority.
Election analyst Antony Green has written a blog ‘In which party’s interest is an early election?’ in which he explores the broader political and electoral context through to 2014. He has also blogged about the chances of the Coalition gaining control of the Senate at a half-Senate election.
Can the Senate sit if the House of Representatives goes to an early election?
It is accepted practice (see Odgers Senate Practice, 13 edn, p. 648) that the Senate does not sit after the House of Representatives has been dissolved. The Senate has never sat under these circumstances although it has asserted its right to do so, arguing that:
  • except in the case of a double dissolution, the Senate is a continuing house 
  • the Senate is constituted independently of the House of Representatives  
  • there is no constitutional or doctrinal impediment to its meeting for non-legislative purposes.
It is not uncommon for Senate committees to continue to meet with the authority of the Senate even after the House has been dissolved.

The summoning of a new Parliament in 2013
A new Parliament must be summoned by the Governor-General to meet no later than 30 days after the return of the writs for the election. Elected Members of the House of Representatives will take their seats, as will the elected territory-based Senators, but the elected state-based Senators will not take their seats in the Senate until 1 July 2014.

As its first item of business, the House must elect a Speaker. The House does not proceed to the despatch of business until the Speaker has been presented to the Governor-General and the Governor-General’s opening speech has been delivered to all Senators and Members gathered in the Senate chamber.

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