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As any educated Australian should know, the Governor-General’s powers in appointing or dismissing a Prime Minister are completely discretionary but that discretion is bound by convention as strong as law.

So when asking the question, who can form government after this election, I think two things have to be distinguished. Firstly – distinguishing between legal considerations and between political considerations which may indirectly impact the legal considerations. Secondly, we must distinguish between short term effects and long term effects.

Anne Twomey, the god-like constitutional law scholar at the University of Sydney points out that Gillard has the advantage of incumbency, by reason of her caretaker position. This means that it is her legal “right of the incumbent to remain in office to face the parliament continues”. Twomey, omniscient as she is, cites various examples from Australia’s state parliamentary history.

Andrew Lynch of the Gin&Tonic Centre for Public Law at UNSW on ABC News this morning stated that the longest a Prime Minister would be able to wait before making the drive to Government House to inform the Governor General that s/he can form government is a week. He cited two UK examples, including Gordon Brown. Lynch omits to mention that this is based on political considerations. Yes – there is only so long the public will wait, but in exceptional circumstances such as these, I think the public is happy to remain in caretaker mode.

As Twomey points out, the Prime Minister is only obliged to resign if a motion of no confidence is moved against her by the House.

The second question on everyone’s minds is whether another election will be called. Twomey says that, in the immediate term, there is a single scenario in which this can happen. The problem is that the coalition with the most seats must nominate a Speaker, thus depriving it of a vital vote such that it cannot defeat vital motions. If the numbers fall 76:74, this does not pose a problem. If however, both sides garner 75:75 votes and if both sides refuse to nominate a Speaker, then another election will be called. As Twomey points out, this is wildly unlikely to happen because “the pressure to avoid another election and to ensure stable government is likely to be so great that one or more of the independents is likely to change sides to ensure that a stable government is formed”. I would add that a 75:75 figure is unlikely on the current seat count unless the rural independents fail to vote as a block. And if they don’t vote as a block, its in their own best interests to reform a block (as Twomey said, for one to switch sides).

Lynch, inferior mind that he is, points out that minority governments are unstable and likely to survive for the full term. He predicts that there is likely to be another election in a few months. Again, this is based on political considerations. And, there being no precedent in the last 70 years, he can hardly cite international examples because the Parliamentary and political context is so different. I would imagine that the first step, in the case of a breakdown in the ruling coalition, would be to try to negotiate a new coalition. Again, unless the Prime Minister loses the confidence of the House (as expressed by a motion of no confidence) s/he does not need to resign or hold an election. The Governor General, I think, in these circumstances would not exercise the power to call an election until the House had concluded negotiations or reached an impasse.

So even though the legal criterion are twofold – firstly, who has the most seats, and secondly, who can defeat no confidence motions,  there are many political considerations that play into this.

Who has the highest two-party preferred vote etc – these statistics are only useful insofar as they allow the parties to convince the independents that they have the democratic mandate (and hence the independents should side with them). The far more important criterion is who can form the most stable government. Although, apparently, some have suggested that this is a criterion for the GG, it is not.

People should really learn to read the Constitution. It may not mention the Prime Minister by title or office, but it can tell you who will become Prime Minister.

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