‘Forming’ or electing governments

We are racing headlong into an election that will almost inevitably result in a hung Parliament. And many would say we are going to an election far too quickly – hardly time for a government get its feet under the desk. 

It is nearly half a century since an unelected representative of the British Crown sacked a government and Prime Minister (Gough Whitlam) elected by the people less than two years before and installed the Leader of the Opposition (Malcolm Fraser) as Prime Minister.

In that half century, political paralysis has prevented a dispassionate look at how governments are formed and dissolved in Australia and whether those arrangements are adequately detailed and appropriately democratic. 

It is good time to look at our constitutional arrangements which will have to deal with the hung Parliament, no matter what.

The only post-war minority Government in Australia was that led Julia Gillard and Kevin Rudd from 2010 to 2013. 

Most people assume that, if both Labor and the Coalition fall short of a majority, one or other of them would stich up enough independent or minor-party MPs to pledge confidence and supply and the leader of that party would head to Government House to be sworn in.

That’s what happened in 2010. There were six independent and minor-party MPs. The Green Adam Bandt and Independent Andrew Wilkie were certain to go with Labor, so Labor Prime Minister Julia Gillard only needed two of the other four. She convinced them to support her.

Similarly, in 1941 it took only two independents to support Labor’s John Curtin for him to form a Government.

But now things are much different. In 2022, 16 independent and minor-party MPs were elected. In 2025, given low polling numbers for the major parties, that is likely to rise considerably.

Any leader of a major political party would have trouble herding those cats into a supply-and-confidence deal.

The position is further complicated by the fact that at least one of those cats will not be herded – Andrew Wilkie. 

He said last year: “I learned that if you have a deal, you’re locked in, and you are kind of taken for granted. Whereas, if you don’t have a deal, you can’t be taken for granted.”

Wilkie said he would go to this election telling voters that he would not do a deal with either major party if there was a hung parliament, citing the broken agreement with Gillard on gambling-law reform.

He has a point. Here we are 15 years later with Labor still beholden to the gambling “industry”.

He has spoken to the Teal independents about those lessons.

He thought there was no need for supply and confidence deals because crossbench MPs could always vote on a no-confidence motion in the House of Representatives to determine if a party and its leader could govern.

“I think it’s democracy at its purest – that things are decided on the floor of the parliament,” he said. “If there is no majority, then someone brings on a no-confidence motion and let’s find out where the numbers lie.”

That is all soundly argued, but we need to go further. We should not be talking about just votes of NO-confidence; we should be talking about votes of confidence. We should be talking about changing the way governments are “formed” to ensure they are elected.

At present the Constitution gives the unelected Governor-General the power (unfettered by any words in the Constitution) to appoint ministers to run a government. The term “prime minister” does not appear in the Constitution.

The Constitution also gives the Governor-General the power (unfettered by any words in the Constitution) to all elections.

The powers are, of course, fettered by custom and practice which means the Governor-General will always appoint the leader of the party which wins a majority of seats in the House of Representatives (if that happens) to “form” a government and therefore be Prime Minister and will call an election when that Prime Minister asks for it.

But what if there is no clear majority. The 2010 experience tells us the Governor-General will appoint a party leader who can demonstrate they have a majority. But after the next election that might be difficult to impossible. 

How much simpler it would be to extrapolate from Wilkie’s position and apply the post-election rules that govern the ACT at the Federal level.

The ACT does not have an equivalent of a Governor or Administrator who acts as the Monarch’s representative to “call” upon a party leader to “form” a government.

Rather, in the ACT, after an election, the Electoral Commission certifies who has been elected as a member of the parliament. The first meeting of the parliament after an election is presided over by the Clerk of House and the first piece of business (with anything else out of order) is to elect a Speaker.

The Speaker then presides over the House and the next piece of business (with everything else out of order) is the election of a Chief Minister, or in the case of Federal Parliament, the election of the Prime Minister.

That is democracy. Then you add to that set-up a parliamentary rule that you cannot have a no-confidence motion in a government unless the motion names the new Prime Minister. 

That way, the unelected Governor-General never has to call upon anyone to “form” a Government or decide whether an election should be called. It would obviate the possibility that a Prime Minister, defeated on the floor of the House, could angle for an election rather than a handover of power. And it would force all those independents to make a decision.

As for extending the term of governments, a great start would be to fix the term of the government at three years (because far too many have run short of that) with a fixed election date on, say, the last Saturday in November every three years. The Senators’ terms would be two terms of the House.

Going for four-year terms would have advantages, but it would mean eight-year terms for senators which many small d democrats might find unpalatable.

Crispin Hull

This article first appeared in The Canberra Times and other Australian media on 25 February 2025.