Hung Parliament Conventions
With Saturday’s federal election likely to result in a hung House of Representatives for the first time since 1940, a number of constitutional conventions will now be triggered governing how a minority government can be formed.
Points to consider
Government is formed on the floor of the House of Representatives. You need a majority in the 150-seat chamber to guarantee survival of a non-confidence motion (i.e. 76 votes).
A minority government continues so long as it can maintain the confidence of the House.
Over the next week or so, both the Prime Minister and the Opposition Leader will speak to the cross bench members: the three independents – Tony Windsor of New England, Rob Oakeshott of Lyne and Bob Katter of Kennedy; the Green – Adam Bandt of Melbourne; and possibly the WA National – Tony Crook of O’Connor.
It is also possible Andrew Wilkie, the independent from Denison, may be elected and would also be part of any negotiations.
Forming a government
Convention dictates the caretaker Prime Minister has the first chance to try to form a new government.
If, after negotiating with the cross bench MPs, Prime Minister Gillard believes she has the support in the House of Representatives to form a government, she will advise the Governor-General of this. A ministry will then be sworn in.
Then, when the newly elected House first sits, the Opposition may move a no-confidence motion against the newly formed Government.
If the Government survives the no-confidence motion, it will govern while it maintains the confidence of the House.
On the other hand, if during the course of negotiations it becomes clear the Prime Minister will not be able to form a majority on the floor (for example, if Mr Abbott can garner the support of 76 MPs), the Prime Minister will advise the Governor-General of this and will likely resign.
The Governor-General would then send for the Opposition Leader who would advise her that he is in a position to form a Government. He and his ministry would be sworn in and then may need to survive a no-confidence motion.
If neither the Prime Minister nor the Opposition Leader can obtain or maintain the confidence of the House then a new election would be called by the Governor-General on the advice of the Prime Minister.
Throughout this process, the convention is the Governor-General acts on the advice of the Prime Minister so long as the Prime Minister adheres to the caretaker conventions.
One aspect worth noting is the Prime Minister cannot call another election unless there is first an attempt to form a Government. Australia will only go back to the polls if no agreement can be reached between one of the major parties and the cross bench members to guarantee confidence.
Finalising the count
Given the closeness of the election, it may not be clear what will happen until the Australian Electoral Commission finishes the count.
With a number of seats very close, the final result will be decided by the unusually high number of postal and pre-poll votes recorded in this election.
The counting of postal votes cannot be finalised until 13 days after Election Day.
Postal votes are counted if it is clear that the voter cast the vote before 6.00pm on election day and they are received in the electorate in which the voter is enrolled by no later than 13 days after election day.
This means the final count will likely stretch until the end of next week.
When must Parliament resume?
The Constitution says Parliament must sit within 30 days of the return of the election writs.
The last possible date for the return of the writs is October 27, meaning Parliament needs to sit by November at the latest.