Inside Story

Queensland’s waiting game nears its end

The final composition of the Queensland parliament is likely to be delayed by court action over an ineligible candidate in Ferny Grove. But that doesn’t mean the LNP should hang onto power, writes Graeme Orr

Graeme Orr 11 February 2015 788 words

By convention: Labor leader Annastacia Palaszczuk should form government any day now. Dan Peled/AAP Image

Politics in Queensland is often febrile. But assuming governor Paul de Jersey follows established constitutional conventions, Labor’s Annastacia Palaszczuk will form government sometime over the next few days. If that doesn’t happen, a new and undemocratic convention will have been created.

Tuesday 10 February was the last day for postal votes to be received and counted. (Perhaps a few were trickling in from outer Peru.) Short of recounts and double checking of ballots, the results appear clear. Labor has forty-four seats, including the unresolved seat of Ferny Grove, plus the support of long-term independent Peter Wellington; the Liberal National Party has forty-two; and the Katter Party has two.

Campbell Newman has had the unenviable (and unusual) role of acting as a “zombie” caretaker premier, having lost his own seat ten days ago. No one should be manacled to that role indefinitely. He has resigned, but that resignation is not taking effect until a new premier is appointed.

The convention is for the governor to consult LNP leader Lawrence Springborg and his opposite number, Labor’s Palaszczuk, about their ability to form government. The Ferny Grove result will probably end up in the court of disputed returns because the Palmer United Party candidate, an undischarged bankrupt, was ineligible to “be a candidate and be elected a member” under the Parliament of Queensland Act. In a politically understandable gambit, Springborg argues he should be appointed caretaker premier for the next several months. The LNP would rather the public became used to “Premier” Springborg than to “Premier” Palaszczuk.

The rather large insect in this ointment is that the LNP has only forty-two seats. With counting complete, Labor plus Peter Wellington adds up to forty-five, a majority. Springborg could only reign as caretaker premier by not calling together parliament, a move that would be virtually without precedent. The whole point of an election is to renew parliament democratically.

Any court case over Ferny Grove will take at least a month. There is a guaranteed right to appeal that decision on points of law and that could be taken up by any party to the case. And if the outcome is a by-election, that would take a month. If all these “ifs” fall its way, the LNP might then do a deal with the Katter Party to garner a majority.

To lay out this scenario – a caretaker LNP administration, governing without the support of parliament for some months, unable to make any significant decisions – is to see how little stability it offers.

The caretaker conventions, covering a period in which governments undertake not to make major decisions, evolved to cover the month to six weeks between a parliament being dissolved and a majority of the newly elected MPs coalescing to form a new administration. It wasn’t designed to enable a government that has lost its majority to hold onto formal power for months, unable to make any contentious decisions or pass legislation.

Much has been said about Ferny Grove and a “likely” fresh election. Having studied electoral law for twenty years, it seems to me that the LNP has an uphill legal argument to force a re-election on the good burghers of Ferny Grove.

Those who voted for the Palmer United Party candidate in Ferny Grove did so fully entitled to express a preference between Labor and the LNP. With optional preferential voting we have the fairest voting system, in terms of maximising citizen choice, in the world.

Under preferential voting, according to the High Court (in Re Wood 1988), if a losing candidate is subsequently disqualified the election is not affected. The best argument the LNP lawyers have is to argue that anyone who simply voted “1” for Palmer might have voted LNP had the Palmer candidate not been on the ballot. They then need to argue that there were many more of them than Labor’s winning margin of over 400 votes.

The Electoral Commission has said it will refer the matter to the Court of Disputed Returns. It’s a reasonable, if unusual, position to take. The LNP will at least not have to pay the costs. Fair enough; this is a legal issue that concerns all Queenslanders. The law and precedent is clear that the member for Ferny Grove, like any other MP, is entitled to sit, vote and represent that constituency until such time as he is  unseated by a court.

So far, after a short campaign, we have not been in caretaker mode longer than at a national election. No one has a crystal ball, but in politics the numbers, finally, are all. •