Explainer: motions of no confidence and the constitution

Tony Abbott says the end is near for the government, but can he bring it down? AAP/Alan Porritt

After declaring the Gillard government was entering its “endgame”, opposition leader Tony Abbott is believed to be preparing to table a motion of no confidence.

Since Tasmanian independent Andrew Wilkie withdrew support for the government after Gillard tried to renegotiate gambling reform, the Government holds a majority of only one seat in the House of Representatives.

With intense political pressure still surrounding Labor MP Craig Thomson, Gillard remains highly vulnerable to a no confidence vote that could bring down the government.

The Conversation spoke to constitutional law expert Anne Twomey about the mechanics of a no confidence motion and the constitutional implications of such a vote passing in the lower house.

What is a motion of no confidence?

There are three types.

You can have an express motion of no confidence that says “we have no confidence in the government”. That’s the clearest and most sensible to do.

You can also have implied motions of no confidence that come through defeating an important bill, defeating the budget or even reducing the budget. One government fell when there was a reduction in the budget by one pound, because that was seen to be a symbol of the government losing control over its finances. But in this circumstance, where you’ve got a hung parliament, if a bill was defeated it wouldn’t necessarily be regarded as a vote of no confidence in the government unless the government itself had said before the vote, “this is an issue of confidence – you have to vote for us otherwise the government will fall”.

Finally, you can have constructive votes of no confidence. They say, “We have no confidence in, say, Julia Gillard to run the government, but we have confidence in someone else to do so.”

For example it could say “we have confidence in Tony Abbott to be Prime Minister”, or it could say, “we have no confidence in Julia Gillard but we have confidence in Kevin Rudd”. That wouldn’t bring about the fall of the entire government, but it would bring about a change in prime minister.

Which of those three will Tony Abbott go for?

I would expect an express motion of no confidence.

First of all, he wants to makes sure that the government itself falls, so it would be a vote of no confidence in the government, not just the prime minister. And what he would presumably want is an election. He woudn’t want the situation where there was just a change so that he became prime minister immediately without an election because presumably he would want more seats, and greater stability. I don’t think he’d want to have to negotiate every bill with the independents.

Would a motion of no confidence lead directly to an election?

In part this depends on what Gillard does. If the government loses a vote of no confidence in the House of Representatives she has two choices. The first choice is just to resign. The second is to advise the governor-general to have an election. If she were to resign, the governor-general would have no advice to call an election, so she would have to call on Tony Abbott and he would become prime minister, although he would presumably go on to advise her to have an election. That is assuming he believes he is likely to win one.

What’s interesting is that if Julia Gillard did advise an election, the governor-general does have some discretion to refuse that advice and say, “No, I believe a stable government can be formed without an election”, and then ask Tony Abbott to form a government on that basis. Given the fact that either way it’s going to be a minority government it would be pretty unlikely that the governor-general would refuse the advice to hold an election, particularly given that the last election was some time ago.

What informs the governor-general’s decision? Is it simply the advice of the outgoing or incoming prime minister?

Normally the governor-general is required by convention to act on the advice of the prime minister, but she does have a reserve power to refuse an election if she so decides. In doing that, she’d take into account the political situation, what the numbers are on the floor of the house, those sorts of things.

But for the most part governors-general don’t like exercising their reserve powers. They much prefer to be uncontroversial and rely on the advice of their prime minister. Unless there was a very strong reason for acting against that advice in relation to a dissolution, she would presumably grant one.

Is there anything in the constitution that expressly dictates what happens in the event of a successful motion of no confidence?

At the commonwealth level it’s based on convention, but it’s quite different at the state level, for example in New South Wales, where you have fixed-term parliaments.

In New South Wales the Constitution has very strict provisions about motions of no confidence that can bring on an early election: you have to give three clear days’ notice before you can bring one on, and there’s a period after the motion passes where the effect of it can be reversed. If, for example, it only passed because someone was stuck in the toilet or hadn’t come back from overseas, you’ve got a grace period afterwards to fix things up.

At the commonwealth level there’s nothing in the constitution that expressly deals with this. It’s convention, but it’s a very strong convention that comes from the UK. It says if the government loses confidence on the floor of the house it either has to resign or seek an election.

Is there any precedent for a government falling based on a motion of no confidence in Australia?

The Commonwealth Government has fallen on eight occasions because of adverse votes in the House. None of them, however, was a formal “no confidence” vote. In most cases they were adverse votes on bills or procedural motions (which indicated that the government had lost control of the business of the House) and in one case (the fall of the Fadden Ministry) the reduction of the budget by one pound (which indicated that the Government had lost control of the finances of the country).

Since then, no government has fallen because of a vote in the House of Representatives.

What is the opposition waiting for to bring a motion of no confidence?

They’re waiting for the numbers. They can move motions of censure and motions of no confidence as often as they like at the moment but if they don’t have the numbers to get them through it’s a bit pointless.

If, for example, a government member died, or his or her seat was vacated for some reason, they’d be fairly likely to jump on that chance. If a member resigned, or if one of the independents decided to jump ship and join the other side – that’s what they’d be looking for. At the moment, despite all the uncertainty, the numbers still look pretty firmly on Julia Gillard’s side.

Is a motion likely to pass in the current context?

It’s really a matter of fate at the moment. Someone could have a car accident tomorrow and die, or be seriously injured and resign. Or it could be the case that the Labor party decides to change the leadership and that causes somebody to resign their seat in protest, or it may well be that one or more independents decide to change side. All these things are possibilities and I don’t think anyone can predict the future here.

Having said that, there is an element of self-interest. The independents all have a very strong self-interest in keeping this government going. As soon as there’s an election a number of them will probably lose their seat, and even if they don’t they’ll lose any importance they have, because there will presumably be a majority government one way or another. The only way the independents can keep their place in the sun is to keep this government going.

See more Explainer articles on The Conversation.