Following the resignation of Malcolm Turnbull from the Parliament on 31 August 2018, the Coalition held 75 of the then 149 seats in the House of Representatives—an apparent absolute majority of one vote on the floor of the House if the Speaker and Nationals MP Kevin Hogan are included (Mr Hogan currently sits on the crossbench, but has stated that he is committed to The Nationals).

However, under section 40 of the Australian Constitution, the Speaker does not vote in the House except to have a casting vote in the event of a tie (and the current Speaker, Tony Smith, has previously indicated that he will not use his casting vote to provide a majority for the Government if one does not already exist). So it is at least arguable that a hung parliament emerged upon Mr Turnbull’s resignation, with the Government having 74 votes—a minority of one in a chamber of 149—and the Australian Labor Party (ALP) also falling short of a majority with 69 votes.

With the official result of the Wentworth by-election now confirmed, the representation of the major parties in the House of Representatives is unchanged—the Coalition holds 75 seats (including the Speaker) and the ALP holds 69 seats. But with the House now returned to its full complement of 150 members, the Coalition’s 74 votes (also unchanged) is now two short of the slightly increased absolute majority requirement (at least 76 votes). A change of Speaker, which would potentially alter the numbers on the floor of the House, would seem unlikely given comments in late October by the Leader of the House, Christopher Pyne, to the effect that the Government does not intend to pursue a change in the Speakership.

It is worth noting that under section 40 of the Constitution, votes in the House are decided by a majority of votes actually cast on a given question. An absolute majority of the House is only required to decide a vote in two situations: to pass Bills proposing to alter the Constitution (under section 128), and to carry motions in the House to suspend the Standing Orders without notice (under Standing Order 47(c)).

Dealing with a hung parliament

The current hung parliament follows that of 2010–13 and, since the modern two-party system coalesced around 1909–10, is the third hung Commonwealth Parliament overall, with the first being that of 1940–41.

The Constitution does not provide a mechanism for dealing with a hung parliament; unwritten conventions operate instead. Constitutional expert Anne Twomey has noted that if after an election no party emerges with an absolute majority in the House of Representatives, ‘the incumbent Prime Minister, as the last person to hold the confidence of the House, has the right to remain in office and test his or her support on the floor of the House’.

The ALP secured government in the last hung Commonwealth Parliament of 2010–13 by reaching written agreements for support with three independent members of the House of Representatives and with the Australian Greens. This type of arrangement has been a common method of dealing with hung parliaments at the state level in Australia, although formal agreements are not a requirement.

Stance of crossbench MPs

Kerryn Phelps is reportedly of the view that governments should serve full terms unless there are ‘exceptional circumstances’ and that the role of the crossbench is government accountability, and has indicated that she would approach legislation on its merits.

Nationals MP Kevin Hogan (Page, NSW) has previously stated that he will support the Government on no-confidence motions and supply (Mr Hogan moved to the crossbench in response to the August 2018 Liberal Party leadership spill). Centre Alliance party MP Rebekha Sharkie (Mayo, SA) has reportedly indicated her view that voters do not want an election before Christmas, and that she would speak to the Prime Minister and fellow crossbench members about governance. Katter’s Australian Party MP Bob Katter (Kennedy, Qld) has reportedly spoken against government instability or an early election.