Why we have nothing to fear from a hung parliament

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The prospect of a hung parliament brings forth the doomsayers and the political spinners who conjure up imagined rules to best suit their interests. So before they get started, what are the rules and are hung parliaments as horror-filled as the term suggests?

First, let’s clear away the myths. No, the governor-general does not sit down after an election and decide who to call upon to form a government. The person who was prime minister before the election remains prime minister until he or she resigns (or in more extraordinary circumstances, is dismissed, disqualified or dies).

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The governor-general does not ordinarily play a role until there is a vacancy in the office of prime minister to fill.

Once there is a vacancy, the governor-general’s power to appoint a prime minister is a “reserve power”. This means that the governor-general is not bound to act upon ministerial advice in making the decision. If, for example, Anthony Albanese decided to resign in the wake of the election result, but before doing so advised the governor-general to call upon Bob Katter to form a government, the governor-general would be entitled to ignore this advice.

The governor-general would instead be obliged, by convention, to appoint as prime minister the person who is most likely to “command the confidence” of the House of Representatives. This is the person who a majority of the House trusts to form a government and who it will support in votes of confidence and supply (such as passing the budget).

If the leader of the opposition leads a party or coalition of parties that wins a majority of seats in the House of Representatives, then the prime minister resigns and the leader of the opposition is appointed as prime minister and commissioned to form a government. However, in a hung parliament, where neither side has a majority of seats, the question of who commands the confidence of the House can be more difficult to determine.

This is when the political spinners come in with arbitrary rules. They will say that the leader of the party or coalition of parties with the most seats must be appointed. Alternatively, if it better suits their cause, they will say that the side with the biggest proportion of the two-party-preferred vote must form government, and any other possibility would be a betrayal of the people. But neither “rule” is correct.

The constitutional convention in Australia has long been that the governor-general must appoint the person who is most likely to command the confidence of the House of Representatives. For example, if the election results in 70 Coalition members, 63 Labor members and 17 crossbenchers in the 150-seat House of Representatives, then the question would be how many crossbenchers would support either side on the crucial issues of confidence and supply. A government effectively needs 76 seats to govern, so that once it appoints a Speaker, it has a majority of 75 to 74 on the floor of the House on critical issues.

In the above scenario, if six crossbenchers agreed to support the Coalition on confidence and supply, the prime minister would customarily resign, or face parliament and then resign if a vote of no confidence was passed against the government. Then the leader of the Coalition would be appointed as prime minister.

But, unusual outcomes are still possible. For example, the crossbenchers could agree to support one side or the other if it changed its leader. The question then would be whether a party’s desire to be in government is greater than its loyalty to its leader.

It can result in horse-trading that gives disproportionate power to some politicians. But this already happens in the Senate, where governments almost never have majority control. It’s nothing new.

More surprisingly, the Liberal-National Coalition could break up, altering the numbers. While that sounds like an outlandish prospect, it actually happened in Victoria in 1935. The coalition of the then United Australia Party and the Country Party won the election and formed a government, but within a month, that coalition broke up. The government fell in a vote of no confidence and the Country Party, having only 20 seats in a 65-seat House, formed a government with the support of the Labor Party. In politics, treachery is always lurking in the shadows.

What about the other allegation that hung parliaments result in a paralysed parliament, constant political drama and economic disaster? Most people in NSW would probably have forgotten that the Minns government is a minority government in a hung parliament. Its minority status hasn’t had a noticeable impact on the state’s economy and there is no sense of paralysis.

The worst kind of government is one that has control over both houses and can rush through ill-considered legislation at the drop of a hat. A government that lacks control in one house needs to be more careful and considered in its legislation because it has to persuade crossbenchers that it will be valuable and effective. Shoddy and ineffectual bills can collapse under scrutiny in crossbench briefings before they even hit parliament.

Yes, a hung parliament can result in horse-trading for the passage of legislation and special deals that give disproportionate power to some politicians. But this already happens in the Senate, where governments almost never have majority control. It’s nothing new.

Hung parliaments can also result in substantial reforms to improve government integrity and accountability, contrary to the wishes of those who usually hold power. An occasional hung parliament can be a good opportunity to make lasting improvements in the quality of governance.

Anne Twomey is a professor emerita in constitutional law at the University of Sydney.

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