Although Labor is back in power in NSW, it will be in a minority government, with likely 45 seats, two short of a majority, to the Coalition’s 36 (assuming the Liberal Party wins Ryde’s seat, where it currently is at the front as counting party). continues).
Labor’s position could deteriorate further if the government has to provide a speaker. The obvious strategy will be to offer the position to a crossbencher to keep his number on the floor of the commons. Independent MP for Lake Macquarie, Greg Piper, is one probably candidate, as he was appointed assistant speaker by the previous government.
Incoming Prime Minister Chris Minns has said:
It has always been the case, at least for the past 15 years, that the upper house of NSW has been governed by the crossbench and so will be the case in the lower house. So there will be legislation to navigate through those two parliaments, but it’s not necessarily difficult or different from what’s happened over the past two years.
In fact, no government has had a majority in the Legislative Council since 1988, a situation that seems likely to continue in the new parliament.
To be sure, the coalition government slipped into a minority position in the lower house towards the end of its term, but it could count on the support of a former liberal on the crossbench. Despite his optimistic forecast, Minns may find the situation he faces in the lower house more complex and difficult, especially as he has a big legislative agenda to run.
Read more: The long history of political corruption in NSW – and the downfall of MPs, ministers and prime ministers
Fluid, complex and difficult to predict
There are 12 crossbenchers, ranging across the spectrum: greens and progressives, disenchanted or disaffected liberals, ex-shooters, other regional MPs.
The government needs crossbench votes to win divisions. Three sitting independents – Alex Greenwich, Joe McGirr and Piper – have already offered to support Minns on no-confidence and offer motions, which will give the government stability in office.
This is in line with the principle that independents with the balance of power should support the party with the majority of seats. However, like the other crossbenchers, they will vote on other measures based on their assessment of merit.
It is tempting to divide the crossbenchers according to presumed left-wing or right-wing sympathies. Their voice pattern will actually be smoother, more complex and more difficult to predict.
For example, of the three MPs who come together to keep the government in office, one is progressive (Greenwich), the others moderate. The crossbenchers can also unite on issues of common concern, such as procedural reforms to give them more influence in the House.
The government’s lack of control over the lower house means it may work in a very different way.
The government has no assurance that its legislative proposals will pass without amendment – or at all. It will not routinely be able to silence debates or silence opposition or MPs. After years of being dominated by the executive government, power has returned to parliament.
History shows that it can work
The most relevant precedent is the Legislative Assembly of 1991-95. After that election, the Coalition had 49 seats (48 after nominating a speaker) and Labor 46. Four independents held the balance of power in the 99-seat House.
In exchange for the execution of a reform charterthree of them – John Hatton, Peter Macdonald and Clover Moore – agreed to support the government in appropriation and supply bills and motions of confidence, except where “matters of corruption or gross mismanagement” were involved.
Otherwise, the non-aligned independents were free to vote as they saw fit, which they certainly did.
The government had to negotiate regularly with the independents. It was a slow and sometimes tedious process. The independents needed time to make their own assessment of proposals and to consider the views of interest groups and the opposition.
Under this regime, committees were often set up on legislation and other matters, whether the government liked it or not. The debate was unimpeded.
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 scrutinized and in some cases significantly amended; in many cases, better legislation emerged.
The process was chaotic at times, but the government usually got what it wanted, though it had to accept negotiation and compromise as the price.
Another NSW precedent for dealing with a major cross bench is the upper house after the 1999 election.
The balance of power was held by 13 independent and minor party members of the Legislative Council, ranging across the ideological spectrum.
It seemed like a recipe for legislative chaos; in fact, it turned out to be a relatively stable, even productive period.
Much of the credit is due to Treasurer and Government Leader in the Legislative Council, Michael Egan. He was a skilled parliamentarian and experienced negotiator who was able to accommodate most of the different interests in the house.
His deputy, John Della Bosca, noticed attentive:
I think the idea of having lots of different crossbenchers actually made it easier, even though they theoretically put a block on the government program. Because there were so many, it was generally easier to negotiate proposals for amendments or not to change the proposed legislation. You would think that the more crossbenchers there were, the harder it would be, but I think the more crossbenchers there are, it gets easier in some ways.
Dell Bosca believes better legislation is the result of negotiations with the crossbenchers:
There were days when we were quite frustrated with the crossbench, of course, and there were probably a lot of days when they were really frustrated with us, but I think overall it achieved just that result. I don’t think there was any legislation that you just couldn’t get through because of the crossbench. I don’t think we’ve ever brought in anything that didn’t end up being adopted, albeit sometimes in a much modified form.
To govern effectively, the Minns government must accept that the crossbenchers have legitimate concerns that need to be listened to.
Communication and compromise should be the new order. It may be a wild ride, but democracy is the potential beneficiary.
Read more: It will be tough for Perrottet to win the NSW election. But Labor won’t romp home either