Hung parliament

Cathy Madden and Dr Nicholas Horne, Politics and Public Administration Section

After a general election the party that holds a majority of the 150 seats in the House of Representatives normally forms government. By convention the Governor-General commissions the person who holds the confidence of the House as Prime Minister to lead the government. Normally there is no problem in identifying this person as he or she is the leader of the political party which holds a majority of seats on the floor of the House.

The 2010 election is remarkable for its close result, with neither of the major parties reaching the required 76 seats in the House to form government. This is known as a hung parliament. The Australian Constitution does not specifically deal with the situation of a hung parliament. According to constitutional experts, hung parliaments are resolved by a set of unwritten rules or conventions inherited from the United Kingdom.

Conventions

The 2010 election left Julia Gillard as ‘caretaker’ Prime Minister while negotiations took place as to which party would form government. Before an election result is clear, convention requires that the Governor-General act on the advice of the caretaker Prime Minister. Generally, the Governor-General should act contrary to that advice only where the rules have not been followed—for example where a Prime Minister sought to stay on despite having lost majority support in the House of Representatives. In such a case the Governor-General could dismiss the Prime Minister and commission a new government. In the event that a new government could not be commissioned, the Governor-General would need to call another election.

Once the election result becomes clear an incumbent Prime Minister must, by convention, resign if another party wins a majority of seats in the House of Representatives. In Australia it appears to be the custom for the resigning Prime Minister to advise the Governor-General to commission the leader of the majority party to form a government.

A secondary convention is that if, after an election, no-one emerges with the confidence of a majority of the House, the incumbent Prime Minister, as the last person to hold a majority, has the right to remain in office and test his or her support on the floor of the House.

The 43rd Parliament

Following the 2010 election, three of the non-aligned independents together with the Australian Greens member decided to support a Labor minority Government, agreeing to ensure supply and to oppose no-confidence motions initiated by others. This provides the Labor Government with majority support in the House of Representatives.

In recent years the possession of a clear majority in the House of Representatives by the governing party has been the norm. In the 43rd Parliament, however, this will not be the case, and the closeness of voting on motions or legislation means that a small loss of support could place the government in a difficult position. Under section 40 of the Constitution votes in the House are determined by a majority of votes, other than the Speaker, who has a casting vote if the votes are equal.

Under section 35 of the Constitution the first business of the House is the election of the Speaker, and in the past this has been an early test of whether the government has the support of the House. For the 43rd Parliament, it has been agreed that the Speaker’s vote will be cancelled-out by virtue of the Speaker being paired with the Deputy Speaker.

The negotiations between the major parties and the cross-bench MPs took place in the public spotlight. One outcome sought by the independents and Greens was stability of government, and their agreements with the Government state that the parliament should serve its full term. This means that the next federal election would be due in late 2013.

The last hung Parliament occurred after the election of 21 September 1940. Labor and the Coalition of the United Australia Party and the Country Party emerged with 36 seats each in the House of Representatives. The balance of power resided with two independents, Alex Wilson (Wimmera, Vic) and Arthur Coles (Henty, Vic), who supported the incumbent Menzies Government and enabled it to remain in office. The independents’ support lasted until late 1941 when they voted against the Budget of the now Fadden-led Coalition Government, leading to the resignation of Fadden and the commissioning of the Curtin Labor Government on 7 October 1941.

While minority governments are uncommon at the federal level, the states have had considerable experience of minority governments, including the current ACT and Tasmanian Governments.

Senate

Since 1949 it has often been the case that the government has not had control of the Senate. In fact, the only periods of a government majority in the Senate have been 1951–6, 1959–62, 1975–81 and 2005–07. In the periods when the government has not had control of the upper house the Senate has often been accused of being ‘obstructionist’.

The dynamics of the Senate are likely to be very fluid both before 1 July 2011 and after that date when the new senators take their places. Votes on individual policies and legislation may be determined on a case-by-case basis. Under section 23 of the Constitution votes in the Senate are determined by a majority of votes, with the President being entitled to vote. If votes are equal the question is passed in the negative.

Library publications and key documents

Australian Labor Party and the Independent Members Oakeshott and Windsor, Agreement, 7 September 2010, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2F218795%22

Australian Labor Party and the Australian Greens, Agreement, 1 September 2010,http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2F218795%22

C Pyne, Agreement for a Better Parliament, 7 September 2010, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F202239%22

A Twomey, The Governor-General’s Role in the Formation of Government in a Hung Parliament, Legal studies Research Paper No. 10/85, Sydney Law School, August 2010, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666697##

Hung Parliament
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