By Andrew Trounson. Senior journalist, Pursuit
If Australians have delivered a hung parliament, it is Prime Minister Malcolm Turnbull who will be calling the shots in advising the Governor-General, even if that means giving advice to give the other side a go.
Once the count is final, Governor-General Sir Peter Cosgrove will be waiting for advice from Mr Turnbull about who he should commission as Prime Minister. Depending on the numbers, if Mr Turnbull believes he can form a workable government with the support of enough lower house crossbenchers and advises the government accordingly, precedent suggests that Sir Peter will commission him as Prime Minister, according to University of Melbourne constitutional law expert Emeritus Professor Cheryl Saunders AO.
If Mr Turnbull cannot form a government but it seems likely that Labor leader Bill Shorten can do so, it would be appropriate for Mr Turnbull to advise the Governor-General to ask Mr Shorten whether he can form government.
“Almost invariably, the practice has been that the incumbent Prime Minister advises the Governor-General on the actions to be taken under the Constitution, and constitutionally it is appropriate for the Governor-General to take that advice,” says Professor Saunders.
“The governing principle here is that the person who commands the confidence of a majority in the House of Representatives should form the government. Prime Ministers should act in accordance with this principle when they give advice to the Governor-General.”
“If there is a hung parliament then the Prime Minister would have to make an assessment about whether he can form government. If he thought he could, the Governor-General would be likely to commission him and it could be put to the test on the floor of the parliament if necessary” she says.
“If the advice from the Prime Minister were seriously contested, it is possible that the Governor-General might talk to the other parties. But by and large the goal of our system is to avoid involving the Governor-General in a determinative role by relying on the advice of a Prime Minister, properly formulated. As a backup, in the case of misjudgement, the Parliament can sort it out when it meets.”
“At the end of the day, the determining factor will be the number of seats held and who is prepared to support who on questions of confidence,” she says.
Where it gets tricky is if the Governor-General commissions Mr Turnbull but his government loses a vote of no confidence. In those circumstances the Governor-General could be faced with potentially going against the advice of the Prime Minister and having to decide whether to call an election or invite the opposition to try and form a government. In the constitutional crisis of 1975 Governor-General Sir John Kerr dismissed Prime Minister Gough Whitlam without advice and appointed opposition leader Malcolm Fraser as Prime Minister. Mr Fraser then advised Sir John to call an election that he went on to win convincingly.
“If the current Prime Minister is commissioned and loses a vote of no confidence, it would still fall to the Prime Minister to advise the Governor-General. If the Prime Minister were to advise that parliament be dissolved for another election then the Governor General would face the choice of accepting that advice or trying to determine whether the other side of politics could form government.”
Professor Saunders says this is a contested area. Some argue that if the Prime Minister advises an election in circumstances of this kind the Governor-General must accept it. An alternative view is that the Governor -General is bound to at least explore whether the opposition could form an alternative government given the disruption that another election would entail, and the possibility that, in any event, it may result in another hung parliament.
“It would be a difficult call for the Governor-General but I would expect him to give some consideration to whether the opposition could form government as an alternative to an election.” she said.
In the event of a hung parliament the ball will be in Mr Turnbull’s court. Sir Peter will be hoping the Prime Minister won’t force him into being the umpire.
Second image credit: Turnbull's official Facebook page