Last weekend Australians thought they were voting on who would form government. If Labor or the Coalition had won a clear majority, this would have been a reasonable summary of what the election was about.

But with neither side having gained a majority in their own right, the murky world of government formation under our system of unwritten constitutional conventions has been exposed to the light.

The Australian Constitution provides a framework for government in Australia. However, that framework is bare of flesh on how to deal with the current impasse.

The Constitution was deliberately written to be vague on the process of government formation. The intent was for the written constitution to be a simple framework within which Australia could inherit the unwritten constitutional conventions that applied in the United Kingdom Parliament at Westminster.

The conventions of the 'Westminster' system evolved over several centuries. Where the French and the Americans engaged in revolutions and set down written constitutions, the United Kingdom muddled through with an unwritten constitution built on conventions as the society transformed itself from a feudal to a constitutional monarchy.

At its heart, our constitutional framework see voters elect a representative Parliament from which the 'Crown' in the form of the Governor-General appoints advisers. In the real world these advisers are the Prime Minister and Cabinet, but constitutionally these are advisers appointed by the Crown.

Whether governments are elected or appointed by the Crown hardly matters when either side of politics has a majority. But these conventions pre-date party politics, and in situations such as the current election result, these conventions matter.

So let me run through a few questions about what will happen in coming weeks and how the constitutional conventions apply.

Q: Can we go straight to another election

No. The parliament must meet. The only way we can go straight to another election would be for the parliament to meet and be so deadlocked that no full-time government could be formed.

For instance, an election in Newfoundland in 1908 produced a dead heat. No party could form government without appointing one of their own as Speaker, which would have caused the government to lose its majority in Parliament. It seems extremely unlikely this election will produce such confusion.

The convention that the Parliament must meet was confirmed by the 1989 Tasmanian election.

The Gray Liberal government lost its majority, and in the days that followed, the opposition Labor Party signed a political accord with the cross bench Greens that delivered a majority to Labor.

Gray refused to resign from office and campaigned for an early election, engaging high-priced QCs to produce advice suggesting the Parliament did not have to meet and the state should go straight back to the polls. In the end Gray did not offer this advice to the Governor, the new Parliament met and Gray's government fell on the vote to elect the Speaker.

Q: If the Opposition can produce an agreement with the Independents, does the Gillard government have to resign?

No. The convention that a government resigns before the Parliament sits is a modern convention that came about after the development of political parties. In the nineteenth century, changes of government usually took place when the government was defeated on the floor at the first sitting of the new Parliament.

As of now, Julia Gillard is still Prime Minister and therefore chief adviser to the crown. If the Opposition signed an agreement, it is within the power of Ms Gillard to advise that Tony Abbot be called by the Governor-General to form a government. But in the current circumstances, Ms Gillard is within her rights to advise the Governor General that any agreement by the Opposition be tested on the floor of the House of Representatives to determine who should form government.

There have been recent instances of this in Australia.

After the 1968 South Australian election, the Dunstan Labor government finished with 19 seats, the same as the Liberal Country League opposition, the balance of power held by a conservative independent who backed the Opposition in return for being appointed Speaker. Labor had a clear majority of the vote and refused to resign as premier, forcing the vote to the floor of Parliament where his government was defeated.

As mentioned above, the 1989 Tasmanian election saw Robin Gray's Liberal government lose its majority. Gray stayed on as premier, only resigning after forcing Labor and the Greens to back their accord on the floor of the House of Assembly.

At the 2002 South Australia election, the Labor opposition led by Mike Rann fell one seat short of a majority. In the end Rann coaxed conservative independent Peter Lewis to back his government in return for the Speakership. Liberal premier Rob Kerin declined to resign his commission as premier and forced the agreement between Lewis and Labor to be tested on the floor of the House of Assembly before resigning.

cont

At what point can a DD election be called and all the seats vacated?

adelcrow wrote on Aug 31^st, 2010 at 5:28pm:


Agreed - where there's the political will, there will be a way!

As for the Libs, well...they'll probably continue to bitch, moan and undermine - regardless of whether they perceive they've won or lost - that's just the way they seem to operate...

If Tony Abbott becomes our new PM then good on him,  he will have to deal with the Greens in the senate.
After the way the coalition blocked everything Labor put in front of them I doubt very much that Labor will support anything they put forward.
It will be a Coalition/Greens government  for the next 3 years