What happens if the 2022 elections result in a hung parliament?

What happens if no party or coalition of parties wins a majority in the House of Representatives in federal elections? This is known as a “hung parliament”.

While it is unusual at the federal level, it has happened more often at the state and territory level, so there is a lot of experience dealing with them in Australia.

The prime minister chooses what happens next.

An election does not end the existing government. It continues in office as an interim government until a new government is formed, so there is never a gap between governments. An inconclusive election does not mean that no one is in charge.

Contrary to popular belief, it is not for the governor general to “call” someone to form a new government after an election. This is because there is no vacancy in the office of prime minister until the prime minister resigns.

If the outcome of the election is unclear, or the results leave neither side with a majority, leaving the balance of power in the hands of independents and members of small parties (known as “crusader banks”), then it is up to the prime minister to decide what to do next.

The prime minister could choose to:

  • resign on behalf of the government, which is usually what happens if it is clear that enough MPs are going to support the other side

  • stay in office while negotiating with the crossbenchers to see who they will support (and resign if they choose the other side)

  • remain in office and face parliament to see if the lower house votes against the government (in which case the prime minister must, by convention, resign) or if the house is prepared to allow the government to remain in office as a minority government.

What is the role of the governor general?

The role of the Governor General is limited. If the prime minister resigns on behalf of the government, the convention requires the governor-general to appoint as prime minister the person most likely to command the support of a majority of the lower house.

This is usually the leader of the opposition. In rare circumstances, when there are conflicting claims on who has the support of the lower house, the Governor General may have some discretion. However, if the issue were contentious, the governor general would probably leave it to the House of Representatives to decide who he trusts.

In the extraordinary event that a prime minister refused to resign, even though the lower house had voted that they did not trust him or his government, the governor-general would have the right to dismiss the prime minister and commission a new one to form a government. But this has not happened in Australia and is highly unlikely to ever happen.

Read more: Could the 2022 elections result in a hung parliament? History shows that Australians have nothing to fear.

Is it necessary to get a ‘trust and supply’ deal with the crusading bankers?

When there is a hung parliament, the focus is on whether enough MPs will support one side or the other in government, protecting it from a no-confidence vote and approving its budget (known as a “bid”).

Minority governments can be defeated on legislation and other motions in the lower house and remain in office, as long as they can approve the offer and do not lose the confidence of the majority of the lower house.

So where there is a divided parliament, both sides will normally try to negotiate a “trust and supply” deal with enough MPs to guarantee majority support on those two crucial issues. It is not necessary to have such an agreement, but it helps to provide a stable government. It is also a good indicator for the governor general of who has the necessary support in the lower house.

So despite talk that they will make “no deal”, it is likely that in the face of a divided parliament, both the prime minister and opposition leader will try to negotiate trust and supply deals with enough crossed MPs to garner majority support. in the lower house.

In exchange for a promise of support for the trust and the offer, the deputies usually impose some conditions. They can require the government to commit to certain policies (such as measures to tackle climate change) or establish greater accountability (such as an anti-corruption body).

They can seek reforms in how parliament works and demand adequate funding for existing accountability bodies, such as the auditor general. They can also make their trust agreement conditional on the government not engaging in any corrupt conduct.

There are no rules about how these negotiations are conducted or how long it takes to reach an agreement. Prime Minister Julia Gillard took more than two weeks to negotiate trust and supply deals with enough MPs to form a minority government. But if the close election is challenged in the Challenge Statement Court, it can take months to get certainty. Meanwhile, the existing government continues in office as an interim government.

Read more: Explainer: what are the conventions of the interim government?

Does a hung parliament result in chaos?

hung parliaments can be effective or chaotic, or both, as Gillard’s minority government demonstrated. Forcing a government to explain and justify each bill on its merits and negotiate amendments to reach a reasonable consensus is not a bad thing. It can result in significant improvements to government policy and legislation. A divided parliament can be a moderating force that removes the ideological edges of policies and pushes them towards the center, where they are widely accepted.

On the other hand, a divided parliament can result in governments not taking tough but necessary measures that are in the long-term interests of the country. It can also result in haggling of support for bills and unfair favoritism directed at bills in congressional electorates.

Whether a hung parliament ends up with policy paralysis and haggling on the one hand, or major improvements in accountability and policy on the other, depends on the quality of both the government and the deputies and their commitment to the public interest over self interest.

Therefore, when it comes to voting, it is advisable to look beyond party or independent labels to see the quality and commitment of the candidate you choose, because it can be very important.

Author: Anne Twomey – Professor of Constitutional Law, University of Sydney

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