Many pitfalls for the G-G to avoid

IN a situation of great uncertainty there is one certainty; Julia Gillard is entitled to stay prime minister until Tony Abbott constructs a majority against Labor or Gillard loses a confidence motion on the floor of parliament.

The Governor-General will be directly involved if Gillard loses the confidence of the lower house. At this point Gillard would have to resign despite her repeated assertions that she intends to form a government. The only other option would be for Gillard to advise a new election claiming the parliament was unworkable.

The Governor-General would be obliged to reject any such advice from Gillard.

A prime minister who loses the confidence of the parliament has no automatic right to an election and the governor-general has no obligation to accept advice from a PM without the confidence of the lower house.

This situation is unlikely to occur because Gillard says her present task is to form a stable government, not to have another election.

However, there is one right Gillard does enjoy as PM; even if Abbott and enough independents reached an agreement, Gillard would be entitled as PM to test this on the floor of parliament to put it beyond question.

If Gillard lost a confidence motion she would have to resign immediately. She would not be entitled to argue to Governor-General Quentin Bryce that she remain in office because Abbott might not be able to form a stable government.

Once Gillard resigned, the Governor-General would send for Abbott, ask if Abbott were able to form a government and commission him.

Abbott would only need to have the confidence of the house to remain PM. But practical politics suggests he would need a formal, three-year agreement with a sufficient number of independents to have a real prospect of governing for a full term.

The battle between Gillard and Abbott is for the hearts and votes of the independents, but the arguments that may sway the independents cannot sway the Governor-General.

For example, the number of primary votes or the two-party preferred votes for Gillard or Abbott is irrelevant to the Governor-General but not necessarily to the independents.

Indeed, the independents may invoke such votes as a justification for pledging to either leader.

With the two-party preferred vote so close, Gillard's initial blunder by invoking this vote as a reason for a Labor government is exposed. An ebullient Abbott said yesterday the opposition was now "a government in waiting", a comment that is meaningless outside propaganda.

The situation in the Senate is also irrelevant to the Governor-General but not necessarily to the independents. The numbers in the Senate cannot decide whether Gillard or Abbott has the confidence of the lower house despite Garfield Barwick's wrong opinion on this issue in 1975.

The independents, however, may be deluded enough to use the Senate situation as a factor in any decision they make, presumably, in this case, in favour of Gillard.

There has been much misleading talk about Abbott wanting an election. Abbott is the Opposition Leader and has no ability to obtain an election. The governor-general grants a dissolution on the advice of the prime minister not the opposition leader.

Gillard argued yesterday that stability meant continuity, therefore, stability meant Labor. There are many cases in the states of minority government working. It is noteworthy, however, that minority government tends to work with a fresh, incoming government, not an older, weakened, re-elected government clinging to power by its fingernails.

The independents keep talking about stable government as though this is Gillard's or Abbott's responsibility. Yet it is the independents who will determine whether Australia has stable government.

The independents are free agents. They can enter a three-year formal agreement to keep Gillard or Abbott in office or they can decline to enter any such deal. It is not clear how many among Tony Windsor, Bob Katter, Rob Oakeshott and Andrew Wilkie will enter a formal agreement.

It is possible for an independent to abstain from any three-year commitment yet support Gillard or Abbott on a confidence vote.

Any formal agreement will test the integrity and judgment of its participants. It must be public and transparent. It would need to guarantee supply and confidence and, presumably, commit to substantial parliamentary reform. Any extra funding would need to be identified. It would become the first test of so-called new politics: with billion-dollar wish lists being tabled the public would need to know whether Australia was retreating to the bad old days of huge pork-barrelling typified by the National Party of John McEwen and the pre-reform Labor Party.

Such an agreement may contain a provision for a three-year parliament as wanted by the independents. That need not concern the Governor-General. It would be a political deal devoid of any constitutional or legal standing. Moreover, any effort to legislate a fixed three-year term would be unconstitutional.

It would be folly for Gillard or Abbott to offer such a pledge, thereby surrendering core powers of the prime minister, highly relevant in a tight parliament with a potentially hostile Senate. Remember, however, the PM could tear up such an agreement at will and call an election, though any PM in this situation would have to live with the political consequences and they would pivot on who was seen as the guilty party.

Throughout this process the Governor-General has no role in testing whether Gillard or Abbott has the confidence of the lower house. Any testing must be conducted on the floor of parliament, not in the study at Yarralumla. So Bryce has no role inviting Windsor, Katter, Oakeshott or Wilkie collectively or individually to Yarralumla for a chat over tea and biscuits to satisfy herself of their intentions. This would be a vice-regal blunder, the sort of mistake the Queen would never commit.

Yet as the University of Sydney's Anne Twomey has documented, such a precedent for vice-regal activism does exist in Tasmania in both 1989 and 2010, when the Governor exceeded the conventions. It is vital, therefore, that the Governor-General avoids any such activism along the Tasmanian lines.

The nightmare scenario is a parliament 75-75 deadlocked. The first task of the house is to elect a Speaker. Even if possible that would reduce the Speaker's side to 74 votes outside a casting vote. Constitutional lawyer George Williams says: "It is hard to think of a more unworkable situation."

So the independents have an incentive to produce a workable majority, but that means doing something they hate: installing Labor or Coalition in office.