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  • Written by Adam Webster, Lecturer, Adelaide Law School, University of Adelaide

Neither Malcolm Turnbull nor Bill Shorten was able to claim victory on election night. With uncertainty surrounding whether either party will be able to secure a majority of lower house seats, talk has now turned to whether Australia will again have a minority government and a “hung parliament”.

So, what is a hung parliament? And what is the procedure for determining who will form the next government?

What is a hung parliament?

The party (or coalition of parties) that has a majority in the House of Representatives forms the government.

There are 150 seats in the House of Representatives. To form government in their own right, the Liberal/National Coalition or Labor requires 76 seats. If neither can form government in their own right, we have a “hung parliament”.

There is nothing in the Constitution to deal with the situation in which neither side can form a majority government. Instead, these matters are resolved by “conventions”. These conventions are the unwritten rules, practices and procedures that Australia inherited from the United Kingdom, upon which our system of government is based.

Forming a minority government

If neither side has a clear majority, a minority government might be able to be formed with the support of minor party and independent MPs.

For this to occur, one side would need enough minor party and independent MPs to agree to vote with it to ensure the budget supply bills can be passed, and to support the minority government in a vote of no-confidence. This was what happened after the 2010 election, when the Gillard government received the support of Greens MP Adam Bandt and three independents to form a minority government.

While a hung parliament might seem like a relatively common phenomenon in recent times, historically they are more unusual. The 2010 election result was the first hung parliament since 1940.

If Turnbull ends up falling short of a majority but receives the support of enough minor party and independent MPs to form a minority government, he would inform the governor-general that he believes he has the confidence of a majority of the house and would seek to remain prime minister.

If Shorten were able to gather the support of the minor party and independent MPs, then Turnbull would need to resign and advise the governor-general to swear in Shorten as prime minister.

If it’s unclear which side has the support of the majority of the House of Representatives, the governor-general would in all likelihood allow the incumbent prime minister – in this case Turnbull – to remain in the position and to test whether he has the confidence of the house, on the floor of the parliament.

If there was a successful vote of no-confidence against Turnbull, he would then need to resign, and the governor-general might then swear in Shorten as prime minister.

Does a minority government mean parliament will grind to a halt?

While a hung parliament does mean a minority government will need to negotiate with independents or minor parties to pass its legislation though the House of Representatives, it does not necessarily mean it will be prevented from governing.

The Gillard minority government, for example, passed more legislation in its first 700 days than the Abbott government did in the same period.

Perhaps this reminds us that the challenge for any government – whether it holds a majority in the House or Representatives or not – is still going to be getting legislation through the Senate.

What affect will this have on a joint sitting?

After a double-dissolution election, if the Senate again rejects the bills that were used as a “trigger” for the election, the government can ask the governor-general to convene a joint sitting of the House of Representatives and the Senate to consider that legislation.

With the election result being so close, the chances of a joint sitting now seem less likely.

Even if the Turnbull government is returned with a slim majority in the House of Representatives, it may not be enough to give it a majority in a joint sitting of both houses if there are a large number of crossbench senators, as appears likely.

Authors: Adam Webster, Lecturer, Adelaide Law School, University of Adelaide

Read more http://theconversation.com/explainer-what-is-a-hung-parliament-and-how-will-a-government-be-formed-61963

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