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Minority Governments in Australia 1989-2009: Accords, Charters and Agreements

Minority Governments in Australia 1989-2009: Accords, Charters and Agreements

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Background Paper 1/2010 by G. Griffith

This paper discusses minority governments in Australia between 1989 and 2009, a period of two decades in which there have been at least ten examples of this political phenomenon in the Australian States and Territories. This paper confines itself to those instances where a minority government has been based on an agreement, charter or accord between major parties on one side and minor parties and/or Independents on the other. In particular, in the context of the ACT, it looks only at the minority governments formed in 1998 and 2008. [1]

Hung Parliament: The focus is on those political circumstances where no party or formal coalition of parties has majority support in the Lower House of Parliament, that is, in the House in which governments are formed. This is what is meant by the term ‘hung Parliament’. [2.1]

It is said that ‘there are no “rules” about government formation from a hung Parliament’ – aside, that is, from the principle that the person best able to command a stable majority in the Lower House (or at least maintain a stable government) should be appointed. Australian experience over the past 20 years bears out that observation. In several instances minority governments have been formed on the basis of agreements with the major party holding the most seats in the Lower House, but not in every case. [5]

Minority government: A minority government is formed in those circumstances where, in the context of a hung Parliament, some accommodation is made between political rivals or competitors, be they political parties or Independent Members of Parliament. A minority government is therefore a form of government established under the conditions of a hung Parliament, but not as the inevitable effect or result of those conditions. Rather, it is a political creation, formed by means of compromise and negotiation. The detailed arrangements for a minority government can vary, from a loose coalition agreement entered into between political parties and/or Independents, to other kinds of ‘confidence and supply’ agreements, or ‘co-operation’ agreements. [2.1]

Minority governments in Australia: A feature of many minority governments in Australia since 1989 is that they have been based on a written accord, charter or parliamentary agreement, setting out the conditions under which the political arrangements are to operate, at least in relation to no confidence motions and supply bills. Further, as a condition for their support of a minority government, minor party or Independent Members of Parliament often require the inclusion of certain reform measures in these charters or agreements. Another innovation on this minority government theme is the inclusion in Cabinet of minor party or Independent Members in ‘loose coalition’ with a major party, again subject to a written statement of the terms and conditions for such involvement. [2.1]

Models and Ideal Types: Various models and ideal types of minority governments are discussed in the literature. The four ideal types formulated by Jeremy Moon are: Ersatz majoritarianism; Ersatz coalition; Ad hoc minoritarianism; and Minoritarianism. Moon’s ideal types concentrate on outcomes which may be: highly particularistic, based on personal or constituency needs (Ersatz majoritarianism); or limited to defined policy areas (Ersatz coalition). Alternatively, the intended outcomes under Moon’s ideal types may be: reformist in nature, albeit without a strategic policy agenda (Ad hoc minoritarianism); or a broad reformist agenda outlined in a formal agreement with the governing party (Minoritarianism). [3.2]

Reform agendas: The first Australian example of a written accord was the Tasmanian Parliamentary Accord agreed to on 29 May 1989 between Labor’s Michael Field and five Green Independent Members (Bob Brown, Gerry Bates, Dianne Hollister, Lance Armstrong and Christine Milne). Brian Costar has argued that the Tasmanian Accord is an example of a more policy based agreement with a strong environmental bias. In comparison, Costar argues, the Charter of Reform (and later Memorandum of Understanding) in NSW between 1991 and 1995 is more of an ‘accountability’ charter, including a broad agenda for constitutional and parliamentary reform. Both the Tasmanian and NSW agreements are examples of Moon’s Minoritarianism. [3.4]

In broad terms, the Tasmanian and NSW models have set the tone for later accords or charters of reform, in which environmental, constitutional and parliamentary reforms have featured prominently. But of course each minority government situation is very much dependent on its own facts and must be understood in its own context. For example, where Independents have represented rural or regional constituencies, as in Victoria in 1999 and South Australia in 2002, a policy commitment to addressing the needs of these areas has tended to be built into the charters or agreements under which minority government operates. The same applies for the 2009 agreement reached in the Northern Territory between the Independent Gerry Wood and the minority Labor Government. [3.4]

Loose or Ersatz coalitions: A further development, away from the norms of the Westminster system of Cabinet government, starting in the ACT and spreading to South Australia, is where Independents and crossbenchers have taken Cabinet posts, subject to certain conditions. These are probably best seen as forms of ‘loose’ or Ersatz Coalitions. These arrangements involve the identification of issues to which Cabinet solidarity will not apply. They can also involve reformist agendas, notably on behalf of regional or rural interests, as in the case of the current agreement in place in WA with the Nationals. In that State there is currently an informal yet seemingly stable coalition of Liberals, Nationals, plus one Independent Member who has taken a Ministry (Elizabeth Constable). This informal or loose coalition must also rely on one of the two other Independent members (John Bowler and Janet Woollard) voting with the Government. [3.4]

Constitutional issues: It may be that the extent to which these ‘loose’ or Ersatz Coalition arrangements depart fundamentally from constitutional practice should not be overstated. This is especially the case in the light of British constitutional history, in which context the suspension of collective Cabinet responsibility has been achieved either by an ‘agreement to differ’ on certain issues, or by declaring certain issues to be ‘open questions’. [5]

Ian Killey in Constitutional Conventions in Australia discusses these precedents. He also considers the New Zealand position where, in order to facilitate the formation of broad coalition administrations, the Cabinet Manual includes procedures for Ministers to ‘agree to disagree’. The agreements reached in the ACT, South Australia and Western Australia discussed in this paper can be seen as extensions on this theme. Whereas the New Zealand arrangements are designed for actual coalitions, in the Australian precedents the participating Ministers retain their independence and operate only within a loose coalition,

subject to agreed conditions. [5]

Clause 3 of the Western Australian agreement, signed by Premier Barnett and Nationals Leader Brendon Grylls on 18 September 2008, sets out the procedures and rules involved for ‘attendance at Cabinet’. Basically, after receiving Cabinet papers and finding that it would be inconsistent with their independent status to be bound by a Cabinet decision, Nationals Ministers must inform the Nationals Leader who must, in turn, meet with the Premier to seek an accommodation on the issue. The issues upon which Cabinet unanimity may not apply are limited to: issues which significantly affect regional Western Australia; and other matters as the National Leader may have advised the Premier from time to time. Despite the emphasis on regional matters, there is therefore no actual restriction on the issues upon which the parties may ‘agree to disagree’. Where no accommodation can be reached, Cabinet papers are to be returned by Nationals Ministers who are to absent themselves from relevant Cabinet discussions. Subsequently, the Nationals Ministers may disagree publicly with the policy in question but only after it has been publicly announced. Clause 3 ends by stating that, except as provided in the agreement, Nationals Ministers will be ‘full members of the Cabinet’, subject to ‘the usual rules of Cabinet solidarity’. [4.8 and 5]

The particular agreements in place in Australia are not discussed by Vernon Bogdanor in The New British Constitution. However, his commentary does suggest that such arrangements may be relevant in the future in Britain, especially in the devolved Scottish Parliament, where a loose coalition might exist ‘on something like a “confidence and supply” basis, that is, to allow the convention of collective responsibility to be suspended for key matters on which the parties to the coalition disagree’. Indeed, having reviewed the constitutional precedents, Bogdanor goes on to say: ‘The implication would seem to be that collective responsibility is as much a maxim of political prudence as it is a convention of the constitution’. [5]

Conclusions: Basically, what has emerged over the past 20 years or so is the normalization of accords, agreements or charters of reform as the basis of mostly stable minority governments in the Australian States and Territories. These agreements further suggest that balance of power holders are well positioned to gain certain pay-offs, be it in terms of official positions, constituency interests, broader policy interests and/or constitutional and parliamentary change. [6]

List of Tables

Table 1: Independents in Australian Lower Houses, 2008
Table 2: Models and Types of Minority Governments in Australia, 1989-2009
Table 3: Reform agendas of Independents/minor parties
Table 4: Tasmanian Greens Accord commitments
Table 5: NSW Independents Charter of Reform commitments
Table 6: Minority government ruling parties that did and did not have more seats in the Lower House than any other party