The majority rule

Who will form Australia's next government is a question of politics not law, with the constitution silent about hung parliaments and how they are to be resolved, says UNSW's Anthony Mason professor of law George Williams.

"Australia's next government will be formed by whichever party can secure a majority of 76 votes in the House of Representatives," he writes in an opinion piece in the Fairfax press.

"This is rightly a political and not a legal process. The constitution says nothing about hung parliaments, or how such a situation is to be resolved.

"Instead, hung parliaments are resolved by a set of unwritten rules inherited from Britain. Fortunately, these conventions are clear and well tested. They include that the governor general acts on the advice of the caretaker prime minister."

While this is the first hung parliament at the federal level since 1940, the situation is not uncommon at the state level, Professor Williams writes.

"Fortunately, in most instances, initial uncertainty and instability has been replaced by stable government, including in Tasmania earlier this year and in Western Australia in 2008.

"These examples also demonstrate how government need not be formed by the party with the most seats or highest popular vote. Both can play a role in negotiations and grant a sense of moral authority, but neither must have any bearing on which party wins the keys to office.

"In the end, all that matters is who can secure enough support to command a majority in Parliament."

To read the full opinion piece go to the SMH.