While counting continues in the Queensland election, one possibility is a hung parliament with neither major party holding a majority.
Prior to the election, both party leaders indicated that they would not undertake deals to form a minority government.
On Sunday, Labor leader Annastacia Palaszczuk said she was “hopeful and optimistic” of Labor being able to form government in its own right, but that it was likely to be a couple of days before the final result was clear.
So where does this leave Queensland now and how would a new government be formed if neither major party wins a clear majority?
The different types of governments formed in a hung parliament
Different types of government might be formed from a hung parliament. One option is to seek to form a majority government, either by forming a coalition with a minor party (as occurred in the United Kingdom in 2010) or by convincing a cross-bench member to become the Speaker or join the government as a minister, as occurred in South Australia in 2002 and Western Australia in 2008.
Another option is to form a minority government. Sometimes this is done by negotiating an agreement with independents and minor parties, under which they agree to support the government on matters of confidence and supply, but are free to vote against the government on other matters.
In return, the government usually promises to pursue particular policies, often involving constitutional reform or greater accountability measures. This was the approach taken by the Field government (Tasmania) in 1989, the Greiner government (NSW) in 1991, the Bracks government (Victoria) in 1999 and the federal Gillard government in 2010.
In Queensland, the Borbidge government had a confidence and supply agreement with independent Liz Cunningham in 1996 and the Beattie government had such an agreement with independent Peter Wellington in 1998. These agreements are not legally binding, but have political force.
Alternatively, a minority government can be formed without reaching any agreement with the cross-benchers. The government simply puts up its bills and its budget and argues for each on its merits in the House, hoping for majority support. The independents and minor parties may decide, on principle, to support the government unless it behaves objectionably or irresponsibly – but that is a matter for them to decide without any formal agreement and any making of promises in return. This form of minority government would be consistent with promises of “no deals” with independents or minor parties.
Understandably, governments prefer the security of a deal concerning confidence and supply. It gives them a written document to show the Governor to support their claim to rule, and provides a greater sense of public legitimacy. It also tends to quash the media speculation and economic instability that can result if every vote is seen as potentially bringing down the government.
However, it is not legally necessary to have such a deal. Minority governments can continue to govern, even if they are defeated on bills, as long as their budget is passed and they are not defeated on an issue of confidence.
The conventions on forming a minority government
A number of constitutional conventions affect the formation of government. First, no change in government occurs until there is a vacancy in the office of premier. This means that the Governor has no role until such time as the premier resigns, unless exceptional circumstances arise justifying his or her dismissal (such as if the parliament voted no confidence in a premier, who then refused to resign or advise a dissolution).
Secondly, where an election produces a hung parliament, the incumbent premier – in this case Campbell Newman – is entitled to remain premier until the parliament first meets, to see whether or not he or she retains the confidence of the House. This happened in South Australia in 1968, in Tasmania in 1989 and South Australia in 2002.
Thirdly, if the premier accepts that his or her government will not hold the confidence of the House when it sits, he or she ought to resign on behalf of the government. This occurred in Victoria in 1999. If the premier resigns, the Governor is entitled to ask the leader of the opposition to form a government, whether or not he or she has a formal agreement with the cross-benchers.
By convention, the premier’s resignation does not take effect until a new premier is ready to be sworn in. In the interim, the outgoing premier remains as premier, in a caretaker capacity. It is the responsibility of the parliamentary party leaders and the Governor to ensure that there is a government in office at all times.
Finally, the ultimate test of who forms a government arises when the parliament first meets. If the House votes no confidence in the premier, then he or she must resign or advise the Governor to dissolve parliament. The Governor is entitled to refuse a request for a dissolution if it occurs within a short period after a general election.
The general principle is that the people have spoken through their votes at an election and the outcome should be respected and made to work. If a government can be formed that has a reasonable chance of functioning in a stable manner, then it should be formed rather than holding a fresh election.
What if both sides refuse to form a minority government?
In recent times it seems to have become fashionable for party leaders to declare that they would refuse to form a minority government if the election produced a hung parliament. Such declarations are inappropriate and should not be made. They disrespect the choice of the people made in an election and they undermine the democratic process.
If the leaders of the major parties don’t like the outcome of an election, it is not for them to tell the voters to try again until they get an outcome that they like. The expense and disruption of elections means that they should not be undertaken frequently and certainly not just to make life easier for party leaders.
Leading a minority government may well be hard and challenging, but voters expect their political leaders not to shirk from challenges. They also expect them to respect the outcome of elections and to make the most of the parliamentary hand that they are dealt.
Minority governments are not uncommon at the state level in Australia, and they may prove to be successful and productive governments if well-managed.
If the leaders of both major parties refuse to form a government, a fresh election would be necessary.
It is likely that Queensland voters would not be very impressed if forced immediately back to the polls again.
For this reason alone, it is likely that if the Queensland election does result in a hung parliament, one of the above types of government will be formed and its leader will step up to the challenge. Refusal to govern is not a realistic option.
Read more of The Conversation’s Queensland election 2015 coverage.