What would happen if an Australian prime minister refused to concede defeat?

It’s an unlikely scenario, but we have a rough idea how it might play out.

Antony Green on the ABC on election night (Australian Broadcasting Corporation).

It is the night of a federal election, sometime in the future. It’s clear the Government is doing badly, losing seat after seat. Antony Green projects that the Government has been defeated. TV stations turn to the governing party’s campaign HQ, where the Prime Minister is taking the podium before a crowd of cheering supporters to give what everyone assumes must be a concession speech. Instead, they insist they’ve been robbed of a landslide victory by widespread fraud, and refuse to concede defeat.

With former U.S. President Donald Trump’s acquittal in his second impeachment trial, Australians have watched this exact scenario play out across the Pacific. Trump famously claimed victory even as the count turned decisively against him, and he and his supporters fought a fruitless two-month legal and political battle to try to have the election results overturned.

But what would happen in Australia? There are obvious differences between the American presidential system and our parliamentary one, and we have no precedent to work on, but we can follow the process under our Constitution and Electoral Act from start to finish.

How an Australian Federal Election Works

Before trying to answer this question, it helps to understand exactly how an Australian federal election works. Most Australians only ever see the Prime Minister call the election and the media announce the result on election night. But more happens behind the scenes.

A federal election is a combination of 151 separate elections for members of the House of Representatives and eight elections for senators from the six states and two territories. Because governments are formed in the House of Representatives, I will focus on the process there.

The Constitution gives the Governor-General the power to dissolve the Parliament and call an election. By convention, the Governor-General will only call an election on the advice of the Prime Minister. If the Prime Minister asks the Governor-General to call an election, he or she will issue a writ — a legal order — directing the Australian Electoral Commission (AEC) to hold the election. The writ fixes the dates for the close of electoral rolls, the nomination of candidates, the election itself, and the for the result to be finalised and the writs returned to the Governor-General. They are not particularly exciting — you can see the writ for the 2019 federal election here. The AEC then runs the election according to the writ and the Commonwealth Electoral Act, publishes the results, and returns the results to the Governor-General within the deadline.

Challenging an Election in Court

The High Court of Australia (Wikimedia Commons)

A voter or candidate can challenge the AEC’s result in the court of disputed returns. Historically, this has been the High Court, but in recent decades the High Court often delegates electoral matters to the Federal Court. While court challenges to election results are common in the U.S., they are rare in Australia (and in other countries under the Westminster system, like the U.K. and New Zealand). Graeme Orr, a professor of electoral law, puts this down to the “high level of professionalism and respect enjoyed by the electoral authorities, and the relatively co-operative approach of the parties themselves”. Australia’s major parties generally do not try to overturn elections, even very close ones.

In the United States, candidates have broad grounds to challenge election results in court. Frequently, they will claim that an improper practice in an election violated the Equal Protection Clause of the Fourteenth Amendment of the Constitution, which requires the government to apply laws to citizens equally. This was the basis of the famous 2000 case Bush v. Gore, which dealt with the presidential election results in Florida.

In contrast, the grounds for challenging an election in Australia are far more limited. Under the Electoral Act, the court will declare the election of a candidate void if they have committed or has attempted to commit bribery or undue influence. Otherwise, it can only void an election result if someone is able to show that there was an illegal practice which would actually have had an impact on the result of the election. Given that there are around 110,000 voters per federal electorate, this is a very high bar to clear. It also means that legal challenges are more common in local elections, where individual votes have more of an impact. Finally, as you can only challenge the election of an individual candidate, you would need to have enough individual returns overturned to change the result of an election overall.

Where federal elections do end up before the court, it’s usually over a question of someone’s eligibility to sit in Parliament rather than allegations of fraud or corruption. Re Canavan, the 2018 case dealing with the eligibility of seven MPs and Senators is an example. The court does have the power to declare a losing candidate elected, but it generally does not do so. Instead, it would usually order a by-election in the affected seat or seats, as it did in re Canavan.

This is another important difference between Australia and the U.S. The Trump Campaign and its allies tried to have the results of the election struck down in Pennsylvania, Arizona and Georgia so that the Republican-controlled state legislatures would appoint a slate of electors to the electoral college voting for him rather than Joe Biden. There is no equivalent mechanism in Australia. If our hypothetical intransigent Prime Minister managed to get the High Court to void an election in one or more marginal seats, they would only trigger a by-election.

How Government Changes

If the AEC finalises the results and all legal challenges fail, what happens next? Australians are often surprised to find that there is no reference to the Prime Minister in the Constitution, or any reference to the government changing in an election. Instead, the Constitution simply says that there is an Executive Council (in other words, the Cabinet) appointed by the Governor-General from among the members of Parliament. By convention, though, the Governor-General will appoint the cabinet chosen by the party or coalition of parties with the support of the majority of the members of the House of Representatives, and will make their leader Prime Minister. Also by convention, a Prime Minister will resign if they lose the support of the House of Representatives, and advise the Governor-General to send for the Leader of the Opposition or another MP who has majority support.

If an election has been close and neither major party has a majority, it sometimes is not clear who will form a Government. In the 2010 election, the incumbent Labor Government lost its majority but was able to continue in office with the support of independents. Sometimes, minority governments fall partway through their term, and so the government changes without an election. In the election of 1940, the Coalition lost its majority but was able to continue in office with the support of two independents. In October 1941, the two independents crossed the floor from the Coalition to Labor, and so Labor was able to form a new minority Government.

Where does this leave our hypothetical defeated Prime Minister who refuses to go? If the new Parliament met, they would immediately lose a no-confidence motion. The Governor-General would then be justified in dismissing them.

However, this would leave them in power between the election and the meeting of the new parliament, which is usually between one to two months. For example, the 2019 election was on 18 May and new parliament opened on 2 July.

The Governor-General may therefore feel pressured to dismiss the Prime Minister before then to allow the new government to take over. There is no precedent in Australia for a Governor-General to dismiss a Prime Minister in anticipation of losing a no-confidence motion, so this would trigger a constitutional crisis. Quite likely, the Governor-General would seek advice from the High Court. Either way, though, the outcome would be the same. Eventually, whether on his or her own initiative or in response to a message from the Speaker of the House advising that the Government has lost a no-confidence motion, the Governor-General would withdraw the Prime Minister’s commission to form a government and send for the Leader of the Opposition.

Conclusion

Since Federation, ten incumbent Australian Prime Ministers have been defeated at the ballot box, and all have conceded defeat and willingly handed the levers of power over to their successor. Australia has strong democratic norms and a robust electoral system, and it has hard to imagine a Prime Minister trying to circumvent them. But it’s also worth remembering that it was hard to foresee in the United States as well. Before Donald Trump, every defeated major-party presidential candidate had publicly-acknowledged their loss since William Jennings Bryan in 1896. The scenario envisioned in this article is extremely far-fetched, but not impossible. But with the strength and independence of the AEC, the narrow and clearly-defined rules around challenging elections in court, the ability of the House of Representatives to remove any Prime Minister at any time, and the reserve powers of the Governor-General, Australia’s electoral system has robust safeguards to protect it.

Adam Wakeling is a lawyer and historian, and the author of A House of Commons for a Den of Thieves: Australia’s Journey from Penal Colony to Democracy. He is on Twitter @AdamMWakeling.

Adam Wakeling is an Australian writer, lawyer and historian. He is online at https://www.amwakeling.com/ and on Twitter @AdamMWakeling.

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