Crossbench deal might be essential for nation’s stability

Independent MP for Warringah Zali Steggall.

Scott Morrison and Anthony Albanese have ruled out deals with the independents and minor parties to form government in the event of a hung parliament.

Promises such as this are a ritual part of recent election campaigns but lack credibility. If Australians deliver a hung parliament, both sides of politics will negotiate with crossbenchers in the hope of securing power. Self-interest directs this, as will the need to provide the nation with a stable and secure government.

The election will result in a hung parliament if no party or coalition wins 76 seats in the House of Representatives, the bare minimum needed for a maj­ority in the 151-member chamber. The Senate outcome is irrelevant, as only the lower house determines which party forms government.

Hung parliaments have become common at the state level as the major party share of the vote has declined. Many of the resulting governments have been stable and successful. On the other hand, only the 1940 and 2010 federal elections failed to produce majority government.

Hung parliaments are conducted according to conventions inherited from Britain. These unwritten rules are not legally enforceable, though they are broadly accepted by the political players and dictate the actions of the governor-general.

In a hung parliament, convention favours the incumbent. Morrison would be entitled to continue as prime minister until it became clear he lacked majority support in the house. This would become apparent if a no-confidence motion was passed against him or if Albanese secured majority support. In effect, the system sets up a contest between the alternative prime ministers to see who can win over enough parliamentarians to reach the minimum number of 76 seats.

This contest is where unaligned crossbenchers come to the fore. As we saw after the 2010 federal election, the uncertainty produced by a hung parliament provides them with the leverage to press their policy agenda.

They can anoint someone as prime minister by guaranteeing the passage of that person’s budget measures and by rejecting any motions of no-confidence. As kingmakers, they can negotiate for new infrastructure for their constituents, a national integrity commission, stronger action on climate change or indeed whatever policy outcome they desire.

Our system of government is premised on the alternative prime ministers doing deals in this way. If Morrison and Albanese stuck to their commitment of not negotiating with the crossbenchers, the result could be uncertainty for an extended period. The resulting government would always be vulnerable to being brought down by a vote of parliament.

In the event of no deals, Morrison would remain as prime minister until parliament indicated a lack of confidence in him. If this occurred, the Governor-General might offer the opposition a chance to govern.

An Albanese government also would be prone to no-confidence motions given the absence of agreement with the crossbenchers. The result could be a short-lived parliament in which power flip-flopped between the major parties before ending up at an early election. Of course, that election could return yet another hung parliament and continue the cycle of instability.

All this points to the obvious that in a hung parliament our leaders will quickly abandon their promise to avoid deals with the crossbenchers. It is not credible to think Morrison or Albanese will abdicate the prime ministership to the other because they are not prepared to enter discussions.

Instead, we would see a repeat of what occurred in 2010 when Julia Gillard and Tony Abbott entered into immediate negotiations with the independents and minor parties. In that case, the outcome was a Labor government able to run full term without losing a no-confidence motion.

If the people return a hung parliament in this election, it will be in the nation’s best interests that both sides of politics negotiate in good faith with the crossbenchers to form a stable government. Such discussions would be a consequence of how the people have voted. It would reflect the fact that first preference support for the major parties is well below 50 per cent, and unlikely even to reach 40 per cent.

In these circumstances, it is unsurprising that any party seeking to govern must negotiate with crossbenchers who represent such a substantial part of the vote. This would be a necessary step to forming a stable government that respects the verdict of the people.

George Williams is a deputy vice-chancellor and professor of law at the University of NSW.