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##