A minority government must have the confidence of the House; how many people voted for it or what was their two party preferred vote is constitutionally irrelevant.
Minority government: what is constitutionally relevant
At the time of writing the result of the election seems to be that the Gillard Labor government has lost its majority. The Liberal National Coalition led by Tony Abbott seems just ahead, but also does not have a majority.
Both Ms. Gillard and Mr. Abbott have indicated they are prepared to lead a minority government. Such a government must enjoy the confidence of the House of Representatives; that is the essence of the Westminster system.
Recall that the Speaker cannot join in an expression of confidence; he or she only enjoys a casting vote when the House is equally divided. Andrew Bolt suggests Mr. Abbott invite Kevin Rudd to be Speaker. If this occurred one Labor vote would be neutralised.
Under the Constitution, the executive power of the Commonwealth is formally exercised by the Governor-General, and accordingly Her Excellency will play a significant role.
The vice-regal involvement in the formation of a minority government arose after the recent elections in Tasmania. His Excellency the Honourable Peter Underwood published his reasons for re-commissioning the outgoing Premier David Bartlett to form a government in controversial circumstances. The Governor-General will no doubt find this document useful.
The Governor said it was his duty as The Queen’s representative to protect and maintain the Constitution and representative parliamentary democracy. He had to ensure that elections were conducted in accordance with the law and that there is an orderly transition of government. The duty obliged the Governor to find the person who can form a stable government which will have the confidence of the House of Assembly.
The Governor stressed that the commissioning of a person to form a government was entirely his prerogative.
He dismissed two arguments, one of which is being raised now in the formation of the next Federal government. Ms. Gillard today relied on the size of the two party preferred vote as a reason for her to lead a minority government. The Tasmanian Governor dismissed similar arguments about the size of the Liberal vote as “constitutionally irrelevant to the issue of who should be commissioned to form a government.”
(Mr. Abbott has referred to the fact that 400,000 more people voted for the Coalition rather than Labor, but has not directly claimed this as justification for appointment. That too would be constitutionally irrelevant.)
The other matter the Governor ruled irrelevant were the statements and promises made by the Premier. Before the election the Premier had said that if Labor did not gain an overall majority he would advise the governor “that Mr. Hodgman ( the Leader of the Opposition) should have the opportunity to form a Government in the first instance”. Mr. Bartlett so advised the Governor. In addition Mr. Bartlett had made statements before the election that “his party would not vote against legislation appropriating supply, nor would they (sic) wantonly move or support a no-confidence motion in the government.”
But when asked by the Governor, he declined to undertake to support Mr. Hodgman in the House.
The Governor ruled that the Royal prerogative to commission the Premier “is not within the gift of any political leader to hand over, or cede to another political leader the right to form a government, whatever the result of the election.”
The Tasmanian Governor found on the facts as presented to him that the Opposition Leader Mr. Hodgman was not in a position to form a stable government. Consequently, he was obliged to send for Mr. Bartlett, who still held a commission to form a government. He reminded him that as Premier, he “had a constitutional obligation to form a government so that the Parliament could be called together and the strength of that government tested on the floor of the House of Assembly.”
Mr Bartlett accepted that he had this obligation and the process of forming a new government proceeded.