As a result of the 2010 election, Labor and the Coalition each won 72 seats in the 150-seat House of Representatives, four short of the requirement for majority government. This is the first hung parliament since the 1940 election.
Of the six crossbench MPs, four – Greens Adam Bandt and independents Andrew Wilkie, Rob Oakeshott and Tony Windsor – declared their support for Labor on confidence and supply, allowing Ms.Gillard and Labor to remain in power with a 76-74 minority government.
…an election before 30 November 2013?…
The Governor-General, Ms. Quentin Bryce, swore in the Second Gillard Ministry on 14 September 2010. According to established constitutional convention, the government – or one headed by another Labor MP – will stay in power until 20 November 2013, the last possible date for a general election, unless and until one of two things happen.
…a loss of confidence…
One is the government loses the confidence of the House of Representatives, that is one of its majority crosses the floor to vote with the opposition, or because a government seat is lost in a byelection and the new meber votes aginst the government on a matter of confidence.
The independent MP from Tasmania, Mr. Andrew Wilkie has indicated he would withdraw his support of the government if his anti-gambling proposal is not passed into law by May 2012. But he has not indicated he would then support a vote of no confidence.
…an early election…
The other possibility is where a general election is called by the Governor-General. This would only be done on the advice of the Prime Minister. The Governor-General is not bound to accept that advice, but cannot constitutionally act alone.
Thus in 1975, Sir John Kerr ordered the double dissolution on the advice of the newly appointed Prime Minister, Malcolm Fraser – who was appointed that day on conditions which included giving that advice.
There are at present no grounds for the holding of a double dissolution.
With the opinion polls showing declining support for the government, the opposition is of course interested in an early general election, or failing that, a by-election.
A by-election could be forced by the death or resignation of a member or a member no longer being eligible to sit in the House.
As Professor George Williams recently wrote ( The Sydney Morning Herald 30/1), under section 44 of the Constitution, a person cannot sit in the Federal Parliament if he or she:
(1) has an ''allegiance, obedience, or adherence to a foreign power'', such as by being a citizen of another nation;
(2) is ''attainted of treason'' or convicted of any offence punishable by imprisonment for one year or more;
(3) is ''an undischarged bankrupt or insolvent'';
(4) holds an ''office of profit under the Crown'', such as a public servant; or
(5) has a financial interest in certain contracts with the Commonwealth.
Attention has focused on the case of the member for Dobell, Craig Thomson.
This relates to charges made on his former employer’s credit card for matters, including prostitution, which would not appear to be related to his employment as secretary of a trade union. Mr. Thomson denies the charges were his or that he was involved in any impropriety or illegality.
Mr Thomson had incurred heavy legal costs relating to a defamation action he had brought against Fairfax newspapers but which he abandoned. It seems that these have been paid by the New South Wales Labor Party with a view to avoiding his bankruptcy.
The opposition has been concentrating on whether he would be disqualified on being convicted of offence punishable by at least a year's gaol. As the trade union, the Health Services Union, is now co-operating with the NSW police, a prosecution is apparently under consideration.
This does not guarantee that a prosecution will follow; the assessment will have to be made whether this would be viable.
If such an assessment did result in a prosecution, a trial would not follow immediately and could even be delayed until next year. Mr.Thomson is of course innocent until proven guilty. But if he were convicted at the trial, he might appeal and argue that section 44 should not operate until the conclusion of the appeal which could be after the next election.
So for a by-election to be held well before the end of the current Parliament, Mr. Thompson would either have to resign from Parliament or, if there were a prosecution, plead guilty.
This is not to assume that Mr Thompson is guilty of any offence. But a plea of guilty would be likely to attract a lower sentence – if there were to be a prosecution.