If the Liberal National Party wins the Queensland election on Saturday, but its leader, Campbell Newman, loses his seat of Ashgrove, can he remain premier? This may be the question vexing minds on Sunday morning. The answer is not as clear as it might have been, due to a failure to make proposed constitutional amendments in 2005.
No change in premier until there is a vacancy
Although journalists often refer to a change in premier on election night, there is in fact no change of premier until there is a vacancy to fill. The office of premier will only be vacated if Campbell Newman resigns to the Governor or – in exceptional circumstances – is dismissed from office.
Newman losing his seat at the election would not automatically vacate his office as premier. Unlike in many South Pacific countries, where the prime minister is immediately disqualified from holding office if he or she ceases to hold a seat in the lower house, this is not the case in Australia.
For example, John Howard remained as prime minister, despite having lost his seat at the federal election on November 24, 2007. Howard continued in office, in a caretaker capacity, until his resignation took effect when Kevin Rudd was sworn in on December 3, 2007.
Does the Queensland Constitution require the premier to be a member of parliament?
There is no express provision in the Queensland Constitution that requires the premier to be a member of parliament. Section 43(2) of the Queensland Constitution states that the “Governor, by commission, may appoint a person as a Minister of State”. It does not require that this person be a member of parliament.
This can be contrasted with Section 46, which states that the Governor may appoint a member to act as a minister when a minister is absent. The distinction appears to be deliberate and is presumably intended to permit flexibility. For example, if the premier automatically lost office upon ceasing to be a member of parliament, this would occur every time parliament was dissolved and there would be no premier during the campaign.
This is why constitutions that require ministers to be members tend to include a grace period to accommodate timing problems. Section 64 of the Commonwealth Constitution states that “no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.
South Australia and Victoria also give three months for a minister to become a member, while New Zealand gives a shorter period.
In 2005, Queensland’s Beattie Labor government introduced a bill that would have required the premier and other ministers to be members of parliament, subject to a 90-day grace period. The bill followed recommendations from the Legal, Constitutional and Administrative Review Committee of the Queensland Parliament that such a provision be inserted. The committee accepted that it was a conventional rule and a “key aspect of Queensland’s constitutional system that ministers must be members of the Legislative Assembly”.
However, the bill was left to lapse at the 2006 election and was never enacted.
If the Constitution says nothing, could Newman remain premier without a seat?
In the absence of an express requirement, there remains a strong constitutional implication that ministers must be members of parliament.
The Commonwealth and state constitutions are all founded on the principle of “responsible government” – that the government is formed from, and is responsible to, the parliament. It would therefore be unconstitutional in principle for a premier to remain in office in the long term without a seat in the parliament. If challenged, there is a fair likelihood that a court would also find a legal reason why it was unconstitutional.
In the short term, however, it would be possible for a premier to remain in office, without holding a seat, if his or her government held the confidence of the lower house and the premier was seeking election in a by-election. This assumes that a compliant MP would resign to permit Newman to run for his or her seat and that Newman was prepared to do so. But that’s something Newman ruled out doing late last year, and again early in this election campaign.
A defeated leader parachuting into a safe seat is not unknown in other countries with similar constitutional conventions. For example, in Quebec in 1985, the Liberal Party leader, Robert Bourassa, lost his seat in an election while his party won government. He was still sworn in as premier and then won a by-election for a safe seat after one of his government colleagues resigned to make way for him.
In Queensland, if the premier were re-elected to the parliament within the 90-day period acceptable in other jurisdictions, it would be likely to be regarded as constitutionally acceptable.
The real question would be whether it would be politically acceptable. Once a party leader has been rejected by the people of his or her own electorate, there is a real question as to whether he or she is still publicly acceptable as premier. There may also be a strong political expectation that he would resign as premier, especially if he had given a prior commitment to do so.
Ultimately, while the constitutional constraints are important, the political constraints are most likely to rule the day.
Read more of The Conversation’s Queensland election 2015 coverage.