How to Succeed in a Hung Parliament

It is better to learn from the mistakes of others than to repeat their mistakes ourselves. For politicians this is certainly a truism. So when the present Commonwealth hung parliament was elected, journalists and historians scurried back to the books to examine the last Commonwealth hung parliament during the Second World War. What they have ignored, however, is the vast treasure trove of experience of the states, where hung parliaments have been far more frequent and their mishandling more prominent.

Among the many state hung parliaments, one of the most interesting and pertinent occurred in New South Wales a century ago. It was the first Labor government in New South Wales, elected to office in October 1910. Throughout its first turbulent year, it lurched through controversies concerning the pairing of votes, the resignation of members, no-confidence votes, the resignation and restoration of the government, the prorogation of parliament, the appointment of an Opposition Speaker and the use of the Speaker’s casting vote—all issues of some relevance in the current political context.

Labor won the election on October 14, 1910, with a majority of two, which was reduced to one after it had provided the Speaker. The Premier, James McGowen, was invited to London to attend the coronation of George V. Due to the precarious state of his majority, he could only go if he obtained an Opposition “pair” for the period of his absence. The Opposition Leader, Charles Wade, agreed to pair with McGowen, as the purpose of the trip was “entirely outside party politics”.[1] There was then some debate about whether Wade, if paired with McGowen, could bring a motion of no confidence in the government in McGowen’s absence. Wade took the view that he ought to be able to move such a motion, but not vote on it while he was paired.[2] McGowen accepted this compromise and sailed for London, leaving William Holman to act as Premier.

Holman was initially confident that his government’s slim majority would hold, as he also usually had the support of a number of independents. However, a government policy to terminate the conversion of leasehold rural properties to freehold caused great concern among country Labor members and the independents. The Opposition moved a censure motion against the government’s land policy, which Holman was confident would be defeated. In the midst of the debate Holman was notified that two country Labor members had resigned their seats on the issue.[3] His majority had walked out the door.

The government survived the censure vote, in part because the two resigning members had obtained pairs for the vote. The government was also aided by the inadvertent support of one member of the Opposition who had fallen asleep in the chamber and was counted as voting on the side upon which he was sleeping during the division.[4] It was the parliamentary equivalent of an “own goal”.

Although he had defeated the censure vote, Holman realised that the government was at risk of losing the confidence of the House pending the outcome of the by-elections. Labor had only forty-three members on the floor (along with the Speaker, who could only vote in a tie) whereas the Opposition and independents together amounted to forty-four.[5] Holman also needed to obtain supply before he could adjourn or prorogue the House until the by-elections were over. Wade moved an amendment to the Supply Bill to reduce the period of supply to two months. The vote was tied (because one of the Opposition members was absent) and the Speaker, to cries of “resign”’, gave his casting vote in favour of the government so as not to take the business of the House out of the hands of the government and to allow future discussion on the subject.[6]

Realising that he was unlikely to get the House to agree to adjourn for a month and fearing that the pairing arrangement would not hold for a vote to adjourn, Holman developed two plans. Plan A was to ask the Lieutenant-Governor to prorogue the House until after the by-elections were determined. If the Lieutenant-Governor refused, Plan B was for the government to resign, allowing the Leader of the Opposition, Charles Wade, to form a government. Wade would be dependent upon the independents and vulnerable to defeat, especially if the Labor Party won the by-elections. Holman took the view that it would be better to resign voluntarily than to resign after being defeated on the floor of the House, because the Lieutenant-Governor would be unlikely to grant a dissolution to Wade if there was an alternative government which had never been defeated on matters of confidence in the House.[7] As Holman later explained it:

under our practice, a Government which has come into office over the dead bodies of its opponents as the result of a parliamentary struggle has the right to dissolve if it is beaten in turn. Its opponents, being dead, have to stay dead; the House is regarded as “exhausted” when two Ministries have been successfully formed from it, and an appeal to the constituencies is the next step … Wade once in, if beaten by us again, could appeal to the people, and although the prospect of such an experience, rightly considered, should fill a democratic bosom with joy, I was far from persuading myself that the results would be entirely gratifying at that moment.[8]

Before implementing his plan, however, Holman was strung along by the tantalising prospect that one of the independents would abstain from voting on an adjournment motion, leaving the numbers even and the Speaker with the casting vote. He was concerned that this was really a trap, and so it proved to be. As the House resumed at 4 p.m. on July 27, 1911, Holman realised that he was not going to get his adjournment through and that he had to get the Lieutenant-Governor to agree to prorogue the House or accept his resignation before a division was called and he lost a vote on the floor. In those days, there were no limits to the numbers of questions that could be asked or the length of question time. Holman left his backbenchers with instructions to keep asking questions and his ministers to filibuster as long as they could in answering them. He then left the Chamber, jumped into “a quick car” and raced across to Government House. He read to the Lieutenant-Governor a memorandum explaining that there was no real point in refusing to prorogue the parliament because if the Opposition formed a government it would face the same problem and also seek to prorogue the parliament. He argued that a dissolution of parliament only eight months after an election was undesirable, especially as the parliament had been working effectively up to that point.[9]

The Lieutenant-Governor, Sir William Cullen, was not convinced and rejected Holman’s advice to prorogue. Holman then sought to resign, on behalf of the government. Sir William insisted on discussing the matter over afternoon tea, which Holman could not refuse, despite his anxiety about what was happening in the House in his absence. Once the teacups had been removed and Sir William had agreed to accept his resignation, Holman sped back to Parliament House without regard to the speed limit. His colleagues, who had been manfully occupying the House with the details of tick control regulations, timber licences and the state cement works,[10] were most relieved to see him. Holman interrupted proceedings to announce that the government resigned—a statement that he said “fell like a thunderbolt on the Opposition” resulting in “real, unpretended stupefaction”.[11] Wade quickly realised that he had no hope of forming a stable government either. He protested that Holman couldn’t resign on behalf of the government—only the Premier could do that and he was half a world away. Holman replied that “our resignations are accepted as fully as any resignations are ever accepted” and stated that they were not affected by the absence of the Premier. The resignation of the government was accepted on the condition that ministers remain in office subject to the formation of a new government.[12]

Over the weekend, the Labor Party added its final master-stroke. It agreed that the Speaker should resign. If Wade had to provide his own Speaker, he would then have a minority of one, even with the support of all the independents.[13]

Wade saw the Lieutenant-Governor and sought a guarantee that if he formed a government and was defeated in the Legislative Assembly, he would be granted a dissolution. Sir William refused to give such a guarantee. As he could not find an alternative government, Sir William instead agreed to grant Holman his prorogation. Holman’s resignation and that of the government never came into effect because no alternative government could be found. Holman’s calculated gamble had been successful.

The prorogation, however, was not the end of the story. Labor won one of the by-elections but lost the other in a close vote that was later overturned. In the meantime, the numbers in the House were tied. To resolve this deadlock, the Labor government convinced a Liberal, Henry Willis, to be Speaker. Willis agreed, on the condition that contentious measures would be dropped and an early election would be held as soon as new electoral laws and a redistribution came into effect.

The Opposition strongly objected to Willis being appointed Speaker. Realising that the election of Speaker takes place under the superintendence of the Clerk who has no power to discipline members, maintain order or terminate the debate, the Opposition embarked on a strategy of unmitigated and unrelenting abuse. All night they spoke, heaping insults on Willis in “unspeakably vile language”.[14] The intent was to pressure Willis to recant or the Lieutenant-Governor to intervene and require a dissolution. Holman, in grudging admiration of the Opposition’s parliamentary tactic, noted that it was “perfectly planned, perfectly managed” and could have been “the greatest parliamentary beanfeast in history”.[15] But Holman was still the better advised when it came to parliamentary procedure.

One of Holman’s backbenchers, reading through the Standing Orders, realised that the Opposition had made an error in not proposing an alternative candidate as Speaker. Where there was only one candidate, the Standing Orders permitted him to be “called” to the Chair without a vote and conducted there by the members who proposed and seconded his nomination. On making this procedural discovery in the early hours of the morning, Holman was anxious to implement his coup before the Opposition woke up to it and nominated an alternative candidate. The only problem was that the members who had proposed and seconded Willis had wandered off somewhere in the building for a sleep. Holman spent the next few hours peering into all the rooms around Parliament House, looking for the crucial slumbering members while trying not to alert anyone’s suspicions. When at last he found them, he arranged from them to saunter into the Chamber, separately, and take up positions near Willis. At 7.30 a.m. when only a few of the Opposition members were in the chamber, another Labor member got the call to speak and deliberately paused, ostensibly to pour himself some water prior to speaking. During the momentary silence, a “stage army” of Labor members all bawled out “Willis” in unison, calling him to the chair. He was promptly dragged a short distance by his nominators and seated in the Speaker’s chair before the Opposition realised what had happened. As Holman later recounted:

For the moment a wild idea of resisting his occupancy of [the Chair] by physical force was evidently contemplated by some Members of the Opposition, but we had thoughtfully planted around the step of the Chair, some Members of our own party who by their physical dimension and corporeal weight were qualified to discourage any effort of that kind and after a moment it was dropped.[16]

It might seem overly dramatic to have relied on heavyweights to discourage the use of force in the chamber, but it later became a tactic adopted by the Opposition. The Opposition was enraged by Willis’s election as Speaker, resulting in dissent, unruly behaviour and occasional scuffles in the chamber. Willis did not help by naming members and causing their removal, often for little or no fault on their part. On September 20, 1911, the Sydney Morning Herald reported on “Pandemonium in Parliament”.[17] As the Herald described it, tensions in the House were high as the Opposition sought to criticise the Speaker for referring to them in a speech in his electorate as “a pack of ruffians”. Crowds descended on the public gallery “on the tip-toe of excitement and expectation” waiting for the “verbal storm to burst”. They were not disappointed. The Speaker disallowed all questions about his prior statements, frustrating the Opposition. He then “named” an Opposition member, Mr Cohen, who the Herald reported was “sitting most inoffensively in his seat”. The Sergeant-at-Arms was called on to remove Cohen but a number of members, being “of large stature and weight” closed in around him and prevented the Sergeant and House messengers from removing him. The Speaker left the chair (with “harmless paper missiles” being thrown in his wake) and the House adjourned for half an hour to allow the parties to cool off.

When the Speaker returned, he was prepared for battle. After little debate, he ordered the removal of Mr Wood for no clear reason. Another “bodyguard of stalwart Oppositionists” was formed around him and a more violent scuffle took place. The Speaker pressed a button beneath his desk. “At this signal a posse of heavyweight policemen rushed into the midst of the struggling legislators and Parliamentary staff.” The crowds in the galleries cheered as the “police entered into the melee with great gusto and were soon in possession of the field”. The Herald described it as “one of the most disgraceful episodes of disorder and confusion that, it is safe to say, have ever been witnessed in any British Parliament”. Others thought it looked more like a scene from a Gilbert and Sullivan opera.[18]

Labour’s woes were not over. Its slender majority was once again threatened, this time by illness and injury. A Labor member, Mr Macdonell, had earlier been taken ill while on a visit to Melbourne and been confined to bed. He had been granted a pair, but because of the early prorogation of parliament, its first session had been very short and Macdonell had been absent for all of it, rendering his seat automatically vacant under the Constitution. Macdonell, however, recontested his seat and won it, despite his serious illness.

More spectacular misfortune was to ensue. Another Labor member, Mr Meehan, moved aside on a staircase in Parliament House to let a Hansard reporter pass, toppled over the balustrade, did a somersault in his descent, and seriously injured himself on his landing, smashing a wooden stool.[19] The aptly named Mr Fell, from the Opposition, saved the day by offering the government a pair for the fallen member.

Holman was later informed by his chief whip that a section of the Opposition had determined to call off all pairs and defeat the government. Holman was conscious of having availed himself of technical procedures to get his way on the Speaker and that the Opposition might well see this as justification for breaching the pairing arrangement. He decided to tackle the issue head-on. He called in the press and told them of this shocking rumour and how he found it impossible to believe that “the Opposition could manifest the savage indifference to parliamentary standards which would be involved in breaking pairs with two ailing Members of the House”.[20] He went on to take some poetic licence and claim that Meehan, who was next door in Sydney Hospital, would be wheeled into the Chamber on his hospital bed to thwart any such plan. Once this was reported in the press, the Opposition immediately denied that it had any such plans. Meehan, it turned out, was quite disappointed at the success of this manoeuvre, as he had rather taken to the idea of saving his government in his hospital bed.[21]

Holman, in an after-dinner speech, lamented his lot, telling a group of accountants:

He had studied constitutional history, and had never heard of any other party leader whose entire majority had resigned in a body. Still less likely was it that any other leader, having by great exertion succeeded in re-establishing his majority on a smaller scale, had been confronted with the spectacle of his entire majority falling over the balustrade of a staircase. The constitutional text-books gave no guide for action in such unusual circumstances.[22]

In October 1911, however, the government’s fortunes changed. The result of the earlier by-election was overturned and a fresh by-election ordered. As Evatt remarked, “Holman knew that the Opposition tactics had so disgusted public opinion as to create a new political issue.”[23] Labor won the by-election comfortably. With Willis still in the chair, Labor had a majority of three on the floor of the House. Promises of an early election were abandoned and Willis, despite objecting, continued in his role as Speaker until July 1913 when he resigned to cheers and applause from the Opposition and the public gallery.[24] Labor continued in office until the next election was held on December 6, 1913, at which it won a clear majority.

Lessons for today

A number of lessons can be drawn from this account, ranging from the banal to the profound.

Lesson 1.
Be explicit in the scope of pairing arrangements. When negotiating pairs, especially for an extended period, it should be settled in advance whether the pairing arrangement will stand for motions of no confidence or motions to adjourn the House or take other steps to preserve the life of a government. A wise Opposition, especially one that hopes to form a government with an equally precarious majority if the existing government falls, should be generous in the granting of pairs.

Lesson 2.
Do not alienate your own members. A minority government cannot afford to introduce controversial policies that might cause its members to defect or resign. Party discipline will only go so far, especially where a local member has strong support in his or her own electorate and could take the “independent” route.

Lesson 3.
Do not let sleeping members lie. Avoiding late night and long sittings is important to avoid mistakes.

Lesson 4.
Resignation is always an option for a government. While it might be risky, resignation may be a sensible option or a good tactic depending on the circumstances.

Lesson 5.
The Governor (or Governor-General) is not a rubber-stamp. A government should not expect that the Governor or Governor-General will always act on ministerial advice. Vice-regal officers are entitled to refuse a dissolution if an election has only recently been held and there is an alternative, viable government. They may also, albeit more controversially, refuse advice to prorogue the parliament if prorogation is only for the purpose of avoiding defeat on a confidence motion.

Lesson 6.
Be careful in your choice of Speaker. A Speaker who is perceived to be unfair and unaccountable in his or her dealings can damage both government and Opposition as well as the standing of the parliament itself.

Lesson 7.
Know your parliamentary procedure. In a hung parliament, the side with the best knowledge and quickest implementation of parliamentary procedure is more likely to survive.

Lesson 8.
Be vigilant against accidental disqualification of members from office. There are many disqualification grounds, including absence for two consecutive months of any session without the permission of the House, holding an office of profit under the Crown, and having a direct or indirect pecuniary interest in any agreement with the public service. All members should be made aware of the grounds for disqualification and how to avoid them.

Lesson 9.
Disruptive tactics are likely to backfire. Fighting every point, maintaining the rage, causing disorder and proffering insults are likely to be electorally damaging in the long run. Oppositions need to be seen as alternative governments before they will be elected as governments.

Lesson 10.
Stay clear of the balustrades, keep your shoelaces tied and keep an eye on those Hansard reporters, especially if you speak too fast.

Anne Twomey is an Associate Professor at the University of Sydney Law School.

[24] Michael Hogan, ‘The 1913 Election’ in M Hogan and D Clune, The People’s Choice—Electoral Politics in 20^th Century New South Wales, (NSW Parliament, 2001) p 122.