How to form government from a hung parliament

Australia’s next government will be formed by whichever party can secure a majority of 76 votes in the House of Representatives. This is rightly a political and not a legal process. The constitution says nothing about hung parliaments, or how such a situation is to be resolved.Instead, hung parliaments are resolved by a set of unwritten rules inherited from Britain. Fortunately, these conventions are clear and well tested. They include that the governor-general acts on the advice of the caretaker prime minister.The governor-general should only act contrary to that advice where the rules have not been followed, such as if the prime minister seeks to stay on despite having lost parliamentary support. In this case, the governor-general could sack the prime minister and commission a new government.Applying such conventions has become commonplace in Australia. There is a legion of recent examples across the states and territories where no party has won a clear majority of seats. Fortunately, in most instances, initial uncertainty and instability has been replaced by stable government, including in Tasmania earlier this year and in Western Australia in 2008.These examples also demonstrate how government need not be formed by the party with the most seats or highest popular vote. Both can play a role in negotiations and grant a sense of moral authority, but neither must have any bearing on which party wins the keys to office.In the end, all that matters is who can secure enough support to command a majority in Parliament.Forming our next federal government will take time. If nothing else, neither of the two big parties will know for a week or more how much extra support they will need to secure a majority of seats.Governments are formed out of Parliament, and that usually cannot occur until the final make-up of Parliament is known.Ultimately, the relative strengths of Labor and the Coalition will need to be tested on the floor of the House of Representatives.Convention dictates that, as caretaker Prime Minister, Julia Gillard will have the first opportunity to form a government. She will do so if she survives a no-confidence motion moved against her.If she does not, the Opposition Leader, Tony Abbott, will be given the next opportunity. If neither succeeds, a new election is likely within months.In a hung parliament, everything will come down to the support of the independents and the Greens MP; they will have the power to make a government, and to break it.In Australia’s last federal hung parliament, after the 1940 election, coalition governments were formed by Robert Menzies, then Arthur Fadden, on the back of independent support. A year after the election, those same independents switched their votes to Labor. The Coalition was forced out of office and John Curtin became prime minister.A hung parliament means a period of instability and uncertainty. The challenge facing Gillard and Abbott will be to resolve this by forming a new government that lasts the distance. In doing so, they will also face the challenge of creating a government able to realise their election promises.George Williams is the Anthony Mason professor of law at the University of NSW. Source: The National Times
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