What happens next if there is a hung Parliament?

If the election results in a hung Parliament, how does the Governor-General decide who to appoint as Prime Minister and can the Prime Minister advise that another election be held?

While there are no express constitutional provisions that explain how the system works, there are a number of well-accepted conventions. First, the Prime Minister remains Prime Minister until such time as he resigns on behalf of the government.

The Prime Minister benefits from the principle of incumbency. It provides that where there is doubt about the election outcome, the incumbent Prime Minister is entitled to remain in office until such time as the Parliament meets and the lower House can determine who holds its confidence.

Could the Prime Minister advise an election before the Parliament meets? This would be a serious breach of convention. The outcome of an election must be respected and the Parliament must be given an opportunity to meet and to see if it can function. If a Prime Minister advised the dissolution of Parliament before it had even met, the Governor-General would be entitled to reject that advice.

Section 5 of the Constitution requires that the Parliament must meet within 30 days after the return of the election writs. The only circumstance in which an election may be held shortly after a previous election is if the House cannot function at all because it cannot elect a Speaker. Otherwise, it must at least be given a reasonable chance to function.

Why PM confidence and supply matters

If the Parliament meets and the House of Representatives either indicates that it has confidence in the government or at least does not vote no confidence in the government, then the Prime Minister is entitled to remain in office, even if he leads a minority government and even if he has no formal agreement on confidence and supply with those who hold the balance of power.

There is no obligation to obtain such an agreement or for an incumbent Prime Minister to provide any such evidence to the Governor-General. An incumbent Prime Minister is entitled to remain in office until such time as there is a successful vote of no confidence against his or her government in the lower House.

For reasons of stability, however, a Prime Minister will usually seek to obtain some kind of agreement on confidence and supply, as the Gillard Government did previously, and as has occurred many times at the State level. It is not constitutionally necessary, but is politically helpful and assists in alleviating anxiety about the potential effect of every vote in Parliament.

• If, however, the Prime Minister is defeated in a vote of no confidence, then unless it is a temporary loss that is likely to be quickly reversed (such as when a Member accidentally missed a vote or was absent for illness) then the Prime Minister is obliged by convention to resign on behalf of the government or advise an election.
• If the Prime Minister seeks to continue to govern without the support of the House of Representatives, he or she may be dismissed by the Governor-General.
• If the Prime Minister advises the dissolution of Parliament, and this occurs due to a defeat on the floor of the House immediately following a general election, then the Governor-General would be entitled to reject the advice to dissolve the Parliament if in his or her view someone else could form a government which has the confidence of the House.

Pulling the double dissolution pin again

If the Prime Minister doesn't resign and the House meets and does not vote no confidence in the government, then the Prime Minister may continue to govern. If he seeks to reintroduce the ABCC Bill (which had been one of the triggers for the double dissolution) and it is again rejected, he is not obliged to put it to a joint sitting of Parliament.

Bob Hawke used the Australia Card Bill as a trigger for a double dissolution but decided on policy grounds not to proceed with it after the election, so that no joint sitting was ever held. The rejection of a bill does not necessarily amount to a vote of no confidence in the government, unless the government has first declared that it would regard such a vote as one concerning confidence.

If it is a double dissolution, all Senators are up for election. If not, then there cannot be a half Senate election for at least another two years, as the election can only occur in the last 12 months before 1 July 2019. As for who gets the three year terms and who gets the six year terms – that is up to the Senate to decide.

Finally, if after a reasonable period, such as 6 months, the Government decided it was not able to function as a government and sought a fresh election, and the Governor-General accepted that advice, an election could only be held for the House of Representatives unless another double dissolution trigger had been achieved. A half-Senate election could not be held, as one would not be due. A new double dissolution could only be held if a bill had been rejected by the Senate and rejected again after an intervening period of 3 months.

In short, a fresh election is unlikely, at least for a period of 6 months or so. The politicians will simply have to deal with the Parliament that the people have chosen.

Professor Anne Twomey is a Professor of Constitutional Law at Sydney Law School. This article was first published in the Australian Financial Review. Read the original article here.