Although Labor has returned to power in NSW, it will be in a minority government, with probably 45 seats, two short of a majority, to the Coalition’s 36 (assuming the Liberal Party wins the seat of Ryde, where it is currently ahead as counting continues).
Labor’s position could be further diminished as the government has to provide a speaker. The obvious strategy will be to offer the position to a crossbencher to maintain its numbers on the floor of the lower house. Independent MP for Lake Macquarie, Greg Piper, is a likely candidate, as he was appointed assistant speaker by the previous government.
Incoming premier Chris Minns has said:
It’s always been the case, at least for the last 15 years, that the NSW upper house has been controlled by the crossbench and that will be the situation in the lower house, as well. So legislation will have to be navigated through those two parliaments but it’s not necessarily difficult or different from what’s been in place for the last two years.
In fact, no government has had a majority in the Legislative Council since 1988, a situation that looks set to continue in the new parliament.
It is true that towards the end of its term, the Coalition government slipped into a minority position in the lower house, but it could count on the support of a former Liberal on the crossbench. Despite his optimistic prediction, Minns may find the situation he faces in the lower house more complex and difficult, particularly as he has a large legislative agenda to implement.
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Fluid, complex and hard to predict
There are 12 crossbenchers, ranging across the spectrum: Greens and progressives, disenchanted or disendorsed Liberals, ex-Shooters, other regional MPs.
The government will need crossbench votes to win divisions. Three sitting independents – Alex Greenwich, Joe McGirr and Piper – have already offered to support Minns on confidence and supply motions, which will give the government stability in office.
This accords with the principle that independents having the balance of power should support the party with the majority of seats. However, like the other crossbenchers, they will vote on other measures according to their assessment of merit.
It is tempting to divide the crossbenchers according to assumed left or right sympathies. Their voting pattern, in reality, will be more fluid, complex and harder to predict.
Of the three MPs combining to guarantee the government in office, for example, one is a progressive (Greenwich), the others are moderates. The crossbenchers may also band together on issues of common concern, such as procedural reforms to give them more influence in the House.
The government’s lack of control of the lower house means it will potentially operate in an entirely different way.
The government will have no assurance its legislative proposals will be passed unamended – or passed at all. It will not routinely be able to gag debate or silence opposition or crossbench MPs. After years of being dominated by the executive government, power has returned to the parliament.
AAP Image/Dan Himbrechts
History shows it can work
The most relevant precedent is the Legislative Assembly from 1991-95. After that election, the Coalition had 49 seats (48 after appointing a speaker) and Labor 46. Four independents held the balance of power in the 99-seat house.
In return for implementation of a charter of reform, three of them – John Hatton, Peter Macdonald and Clover Moore – agreed to support the government on appropriation and supply bills and confidence motions, except where “matters of corruption or gross maladministration” were involved.
Otherwise, the unaligned independents were free to vote as they saw fit, which they certainly did.
The government was forced to negotiate regularly with the independents. It was a slow and sometimes tortuous process. The independents needed time to make their own assessment of proposals and consider the views of interest groups and the opposition.
Under this regime, committees were often established on legislation and other matters, whether the government liked it or not. Debate was unfettered.
In previous parliaments, governments were rarely, if ever, defeated in the lower house; that was not the case between 1991 and 1995.
Government bills were carefully scrutinised and, in some cases, heavily amended; in many instances, better legislation emerged.
The process may at times have been chaotic but the government usually got what it wanted, although it had to accept negotiation and compromise as the price.
Another NSW precedent for coping with a large crossbench is the upper house after the 1999 election.
AAP Image/Paul Miller
The balance of power was held by 13 independent and minor party members of the Legislative Council, ranging across the ideological spectrum.
It seemed a recipe for legislative chaos; in fact, it proved to be a relatively stable, even productive, period.
Much of the credit is due to treasurer and leader of the government in the Legislative Council, Michael Egan. He was a skilful parliamentarian and accomplished negotiator who had the ability to accommodate most of the various interests in the house.
His deputy, John Della Bosca, commented perceptively:
I think the idea of having a lot of different crossbenchers actually made it easier, even though in theory they were a block on the government’s program. Generally speaking, because there were so many of them, it was easier to negotiate proposals about amendments or not amending the legislation as proposed. You would think that the more crossbenchers there were, the more difficult it would be, but I think the more crossbenchers there are, in some ways it makes it easier.
Della Bosca believes better legislation resulted from negotiation with the crossbenchers:
There were days when we were pretty frustrated with the crossbench, of course, and probably there were many days that they were very frustrated with us, but I think on the whole it achieved exactly that outcome. I do not think there was any legislation you just could not get through because of the crossbench. I do not think we ever brought anything in that did not eventually get passed, though sometimes in a highly modified form.
To govern effectively, the Minns government needs to accept the crossbenchers have legitimate concerns that should be listened to.
Communication and compromise should be the new order. It may be a wild ride, but democracy is the potential beneficiary.
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