After declaring the Gillard government was entering its “endgame”, opposition leader Tony Abbott is believed to be preparing to table a motion of no confidence.
Since Tasmanian independent Andrew Wilkie withdrew support for the government after Gillard tried to renegotiate gambling reform, the Government holds a majority of only one seat in the House of Representatives.
With intense political pressure still surrounding Labor MP Craig Thomson, Gillard remains highly vulnerable to a no confidence vote that could bring down the government.
The Conversation spoke to constitutional law expert Anne Twomey about the mechanics of a no confidence motion and the constitutional implications of such a vote passing in the lower house.
What is a motion of no confidence?
There are three types.
You can have an express motion of no confidence that says “we have no confidence in the government”. That’s the clearest and most sensible to do.
You can also have implied motions of no confidence that come through defeating an important bill, defeating the budget or even reducing the budget. One government fell when there was a reduction in the budget by one pound, because that was seen to be a symbol of the government losing control over its finances. But in this circumstance, where you’ve got a hung parliament, if a bill was defeated it wouldn’t necessarily be regarded as a vote of no confidence in the government unless the government itself had said before the vote, “this is an issue of confidence – you have to vote for us otherwise the government will fall”.
Finally, you can have constructive votes of no confidence. They say, “We have no confidence in, say, Julia Gillard to run the government, but we have confidence in someone else to do so.”
For example it could say “we have confidence in Tony Abbott to be Prime Minister”, or it could say, “we have no confidence in Julia Gillard but we have confidence in Kevin Rudd”. That wouldn’t bring about the fall of the entire government, but it would bring about a change in prime minister.
Which of those three will Tony Abbott go for?
I would expect an express motion of no confidence.
First of all, he wants to makes sure that the government itself falls, so it would be a vote of no confidence in the government, not just the prime minister. And what he would presumably want is an election. He woudn’t want the situation where there was just a change so that he became prime minister immediately without an election because presumably he would want more seats, and greater stability. I don’t think he’d want to have to negotiate every bill with the independents.
Would a motion of no confidence lead directly to an election?
In part this depends on what Gillard does. If the government loses a vote of no confidence in the House of Representatives she has two choices. The first choice is just to resign. The second is to advise the governor-general to have an election. If she were to resign, the governor-general would have no advice to call an election, so she would have to call on Tony Abbott and he would become prime minister, although he would presumably go on to advise her to have an election. That is assuming he believes he is likely to win one.
What’s interesting is that if Julia Gillard did advise an election, the governor-general does have some discretion to refuse that advice and say, “No, I believe a stable government can be formed without an election”, and then ask Tony Abbott to form a government on that basis. Given the fact that either way it’s going to be a minority government it would be pretty unlikely that the governor-general would refuse the advice to hold an election, particularly given that the last election was some time ago.
What informs the governor-general’s decision? Is it simply the advice of the outgoing or incoming prime minister?
Normally the governor-general is required by convention to act on the advice of the prime minister, but she does have a reserve power to refuse an election if she so decides. In doing that, she’d take into account the political situation, what the numbers are on the floor of the house, those sorts of things.
But for the most part governors-general don’t like exercising their reserve powers. They much prefer to be uncontroversial and rely on the advice of their prime minister. Unless there was a very strong reason for acting against that advice in relation to a dissolution, she would presumably grant one.
Is there anything in the constitution that expressly dictates what happens in the event of a successful motion of no confidence?
At the commonwealth level it’s based on convention, but it’s quite different at the state level, for example in New South Wales, where you have fixed-term parliaments.
In New South Wales the Constitution has very strict provisions about motions of no confidence that can bring on an early election: you have to give three clear days’ notice before you can bring one on, and there’s a period after the motion passes where the effect of it can be reversed. If, for example, it only passed because someone was stuck in the toilet or hadn’t come back from overseas, you’ve got a grace period afterwards to fix things up.
At the commonwealth level there’s nothing in the constitution that expressly deals with this. It’s convention, but it’s a very strong convention that comes from the UK. It says if the government loses confidence on the floor of the house it either has to resign or seek an election.
Is there any precedent for a government falling based on a motion of no confidence in Australia?
The Commonwealth Government has fallen on eight occasions because of adverse votes in the House. None of them, however, was a formal “no confidence” vote. In most cases they were adverse votes on bills or procedural motions (which indicated that the government had lost control of the business of the House) and in one case (the fall of the Fadden Ministry) the reduction of the budget by one pound (which indicated that the Government had lost control of the finances of the country).
Since then, no government has fallen because of a vote in the House of Representatives.
What is the opposition waiting for to bring a motion of no confidence?
They’re waiting for the numbers. They can move motions of censure and motions of no confidence as often as they like at the moment but if they don’t have the numbers to get them through it’s a bit pointless.
If, for example, a government member died, or his or her seat was vacated for some reason, they’d be fairly likely to jump on that chance. If a member resigned, or if one of the independents decided to jump ship and join the other side – that’s what they’d be looking for. At the moment, despite all the uncertainty, the numbers still look pretty firmly on Julia Gillard’s side.
Is a motion likely to pass in the current context?
It’s really a matter of fate at the moment. Someone could have a car accident tomorrow and die, or be seriously injured and resign. Or it could be the case that the Labor party decides to change the leadership and that causes somebody to resign their seat in protest, or it may well be that one or more independents decide to change side. All these things are possibilities and I don’t think anyone can predict the future here.
Having said that, there is an element of self-interest. The independents all have a very strong self-interest in keeping this government going. As soon as there’s an election a number of them will probably lose their seat, and even if they don’t they’ll lose any importance they have, because there will presumably be a majority government one way or another. The only way the independents can keep their place in the sun is to keep this government going.
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Unlike the American political system [click here] and the British political system [click here] which essentially have existed in their current form for centuries, the current German political system is a much more recent construct dating from 1949 when the American, British and French zones of occupation were consolidated into the Federal Republic of Germany (West Germany). In 1990, the former German Democratic Republic (East Germany) joined the Federal Republic.
However, the 1949 constitution embraces a central feature of the original German constitution of 1871 - which brought together Prussia with Europe's other German states (except Austria) - and the Weimar Constitution of 1919 - which involved a sharing of power between the central government and local Länder (states) - namely a disperal of authority between different levels of goverment. So the Basic Law (Grundgesetz) of 1949 deliberately distributes power between the central government and the Länder.
The vitality of Germany's democratic system and the quality of its political leadership - Chancellors such as Konrad Adenauer (1949-1963), Willy Brandt (1969-1974), Helmut Schmidt (1974-1982), Helmut Kohl (1982-1998) and now Angela Merkel - have been enormously impressive.
The head of state is the President, a largely ceremonial position, elected for a maximum of two five-year terms. The voters in the election for President are known collectively as the Federal Convention, which consists of all members of the Bundestag and an equal number of members nominated by the state legislatures - a total of 1,260. The current President is Frank-Walter Steinmeier, a member of the Social Democratic Party and former Foreign Minister, who was elected in February 2017.
The head of the government is the Chancellor (equivalent to the British Prime Minister). The current Chancellor is Angela Merkel of the CDU who was elected to a fourth consecutive term in September 2017.
Every four years, after national elections and the convocation of the newly elected members of the Bundestag, the chancellor is elected by a majority of the members of the Bundestag upon the proposal of the President. This vote is one of the few cases where a majority of all elected members of the Bundestag must be achieved, as opposed to a mere majority of those that are currently assembled. This is referred to as the "Kanzlermehrheit" (Chancellor's majority) and is designed to ensure the establishment of a stable government.
Most significantly, the Chancellor cannot be dismissed by a simple vote of no confidence but only by a "constructive vote of no confidence" with majority support for an alternative named Chancellor. Since 1949, only two constructive votes of no confidence have been attempted (in 1972 and 1982) and only one (that in 1982) has been successful. This special type of no confidence vote was invented in (West) Germany, but is today also used in other nations, such as Belgium, Spain, Hungary, Slovenia and Lesotho.
In the six decades of the Bundestag, there have been only eight Chancellors - a remarkable element of stability. In the same period of time, Italy has had almost 40 Prime Ministers (although some have served several separate terms of office).
As in Britain or France, day to day government is carried out by a Cabinet, the members of which are formally appointed by the President but in practice chosen by the Chancellor.
Since Germany has a system of proportional representation for the election of its lower house, no one party wins an absolute majority of the seats and all German governments are therefore coalitions. Following the federal election in 2013, it took almost three months to form a new government. Unusually this was a coalition of the two major parties, the Christian Democrats and the Social Democrats - what the Germans call "Große Koalition" or simply "GroKo".
Following the federal election of September 2017, the Social Democrats will not serve in a government, so the CDU/CSU will have to form a coalition with other smaller parties in order to secure a majority in the Bundestag. Negotiations took place over months in an attempt - which has now failed - to form a "Jamaica alliance", so-called because the colours of the three intended partners - the CDU/CSU, the FDP and the Greens - are the colours that make up the Jamaican flag. Another general election in early 2018 is now possible.
The lower house in the German political system is the Bundestag. Its members are elected for four-year terms. The method of election is known as mixed member proportional representation (MMPR), a more complicated system than first-past-post but one which gives a more proportional result (a variant of this system known as the additional member system is used for the Scottish Parliament and the Welsh Assembly).
Half of the members of the Bundestag are elected directly from 299 constituencies using the first-past-the post method of election. Then the other half - another 299 - are elected from the lists of the parties on the basis of each Land (the 16 regions that make up Germany). This means that each voter has two votes in the elections to the Bundestag. The first vote allows voters to elect their local representatives to the Parliament and decides which candidates are sent to Parliament from the constituencies. The second vote is cast for a party list and it is this second vote that determines the relative strengths of the parties represented in the Bundestag. So each Land or state has a given number of directly elected members and each party in each Land has a list which determines the order of selection of any members chosen as a result of the application of the second vote.
The second-vote seats seats are only distributed among the parties that have gained more than 5% of the second votes or at least 3 direct mandates. Each of these parties is allocated seats in the Bundestag in proportion to the number of votes it has received. This system is designed to block membership of the Bundestag to small, extremist parties. As a consequence, there are always a small number of parties with representation in the Bundestag - currently the figure is only seven (and effectively the CDU and the CSU are the same party).
There was a problem with the electroral system, however. Many voters "split" their ballots, voting for a candidate from one party with their first vote and for a different party with their second. The directly elected candidates (known as direct mandates) entered the Bundestag, but a given party might then have more candidates than its share of the second votes would imply - known as "�berhangmandate" or "overhang mandates". This also meant that the Bundestag swelled from its theoretical size of 598 seats to 620. In 2009, the Constitutional Court ruled that this was unfair and unconstitutional.
So, in 2016, a new system was finally agreed. If direct mandates for any party exceed its second-vote ratio, then all the other parties get compensated so that the ratios again reflect the second votes exactly - so-called "Ausgleichmandate". In practice, that could make the Bundestag bigger again, with perhaps more than 700 seats. Crucially, it also hurts one party by withdrawing an advantage it has enjoyed in the past: most of the excess direct mandates went to the Christian Democratic Union (CDU). As a result, the CDU is likely to fare worse under the new system than it would have done under the previous system. A further conequence of this system is that every new legislative period begins with a construction crew moving, removing or adding seats on the plenary floor in the Reichstag.
The last federal election was held on 24 September 2017 and the next election to the Bundestag will be in Autumn 2021 (there is a permissable window of two months). Voting is held on a Sunday.
One striking difference when comparing the Bundestag with the American Congress or the British House of Commons is the lack of time spent on serving constituents in Germany. In part, that difference results from the fact that only 50% of Bundestag members are directly elected to represent a specific geographic district. In part, it is because constituency service seems not to be perceived, either by the electorate or by the representatives, as a critical function of the legislator and a practical constraint on the expansion of constituent service is the limited personal staff of Bundestag members (especially compared to members of the US Congress).
The Bundestag elects the Chancellor for a four-year term and is the main legislative body.
Link: Bundestag click here
The upper house in the German political system is the Bundesrat.
At first glance, the composition of the Bundesrat looks similar to other upper houses in federal states such as the US Congress since the Bundestag is a body representing all the German Länder (or regional states). However, there are two fundamental differences in the German system:
- Its members are not elected, neither by popular vote nor by the state parliaments, but are members of the state cabinets which appoint them and can remove them at any time. Normally, a state delegation is headed by the head of government in that Land known in Germany as the Minister-President.
- The states are not represented by an equal number of delegates, since the population of the respective state is a major factor in the allocation of votes (rather than delegates) to each particular Land. The votes allocation can be approximated as 2.01 + the square root of the Land's population in millions with the additional limit of a maximum of six votes so that it is consistent with something called the Penrose method based on game theory. This means that the 16 states have between three and six delegates.
This unusual method of composition provides for a total of 69 votes (not seats) in the Bundesrat. The state cabinet then may appoint as many delegates as the state has votes, but is under no obligation to do so; it can restrict the state delegation even to one single delegate. The number of members or delegates representing a particular Land does not matter formally since, in stark contrast to many other legislative bodies, the delegates to the Bundesrat from any one state are required to cast the votes of the state as a bloc (since the votes are not those of the respective delegate). This means that in practice it is possible (and quite customary) that only one of the delegates (the Stimmf�hrer or "leader of the votes" - normally the Minister-President) casts all the votes of the respective state, even if the other members of the delegation are present in the chamber.
Even with a full delegate appointment of 69, the Bunsderat is a much smaller body that the Bundestag with over 600 members. It is unusual for the two chambers of a bicameral system to be quite so unequal in size.
The Bundesrat has the power to veto legislation that affects the powers of the states.
Like many countries - including Britain, France, and the USA - Germany has two major party groupings, one Centre-Right and the other Centre-Left.
The Centre-Right grouping comprises two political parties that operate in different parts of the country so that there is no direct electoral competition between them. The Christian Democratic Union (CDU) operates in all the Länder except Bavaria, while the Christian Social Union (CSU) operates only in Bavaria. These parties are most popular among rural, older, conservative and Christan voters. The CDU is led by Angela Merkel, while the CSU is led by Horst Seehofer. In the federal election of September 2017, the CDU/CSU grouping won the largest number of seats: 246.
The Centre-Left party is the Social Democratic Party (SPD in German). This the oldest party in Germany and it is strongest in industrial western Germany. It is led by Martin Schulz. In the last federal election, it only won 153 seats which was the poorest result for the party since 1949.
In the federal election of September 2017, more parties secured representation in the Bundestag than at any time since the introduction of the 5% hurdle in 1953. The other parties now represented in the Bundestag are:
- The Alternative for Germany (in German: Alternative für Deutschland, AfD) which is far Right, Eurosceptic and anti-immigrant. It is led by Jörg Meuthen and Alexander Gauland and won 94 seats.
- The Free Democratic Party (FDP) which is pro-business. It is led by Christian Lindner and gained 80 seats.
- The Left Party which is built on the former Communist Party and is strongest in the former East Germany. It is led by Katja Kipping and Bernd Riexinger and took 69 seats
- The Green Party which is popular in West Germany's university cities. It is led by Katrin Gðring-Eckardtand has 67 seats.
The electoral system in the German political system means that coalition governments are very common. The Social Democratic Party was in coalition with the Greens - the Red/Green coalition - from 1998-2005 and then, from 2005-2009, there was a 'grand coalition' between the CDU/CSU and the SPD. Between 2009-2013, the CDU/CSU was in a coalition with the FDP. In the election of 2013, the FDP failed to win representation in the Bundestag, so Germany went back to a 'grand coalition'.
Unusually political parties in Germany receive significant public funds and the costs of election campaigns are substantially met from the public purse.
Germany's supreme court is called the Federal Constitutional Court and its role is essentially as guardian of the constitution. There are 16 judges divided between two panels called Senates, each holding office for a non-renewable term of 12 years. Half the judges are elected by the Bundestag and half by the Bundesrat, in both cases by a two-thirds majority. Once appointed, a judge can only be removed by the Court itself.
Whereas the Bundestag and the Bundesrat have moved from Bonn to Berlin, the Constitutional Court is located in Karlsruhe in the state of Baden-Württemberg.
During the initial occupation of Germany after the Second World War, the territory in each Occupation Zone was re-organized into new Länder (singular Land) to prevent any one Land from ever dominating Germany (as Prussia had done). Later the Länder in the western part of the former German Reich were constituted as administrative areas first and subsequently federated into the Bund or Federal Republic of Germany.
Today, following the reunification of Germany, there are 16 Länder in the German political system. The cities of Berlin and Hamburg are states in their own right, termed Stadtstaaten (city states), while Bremen consists of two urban districts. The remaining 13 states are termed Fl�chenl�nder (area states).
The Basic Law accords significant powers to the 16 Länder. Furthermore there is a strong system of state courts.
Each Land has a unicameral assembly or parliament called the Landtag. The election period in the various Länder is generally four to five years and the dates of elections vary from state to state.
Politics at the state level often carries implications for federal politics. Opposition victories in elections for state parliaments, which take place throughout the federal government's four-year term, can weaken the federal government because state governments have assigned seats in the Bundesrat.
Like all political systems, the German one has its strengths and weaknesses.
The great strength of the system - a deliberate feature of the post-war constitution - is the consensual nature of its decision-making processes. The Bundesrat serves as a control mechanism on the Bundestag. Since the executive and legislative functions are closely intertwined in any parliamentary system, the Bundesrat's ability to revisit and slow down legislative processes could be seen as making up for that loss of separation.
On the other hand, it can be argued that the system makes decision-making opaque. Some observers claim that the opposing majorities in the two chambers lead to an increase in backroom politics where small groups of high-level leaders make all the important decisions and then the Bundestag representatives only have a choice between agreeing with them or not getting anything done at all.
Germany is increasingly a changing nation demographically and in 2015 alone some one million extra migrants entered the country. It is now a society in which one in five has a "migration background" as German bureaucratic jargon calls all those with foreign roots. The number and nature of these immigrants are having a growing impact on German political thinking.
Meanwhile, since the current political system was designed in 1949, Germany's economic and political role in the world has changed considerably and 2015 was the 25th anniversary of the reunification of the nation. On the one hand, Germans themselves need to take on board these changes by rethinking the current pacifistic approach to world affairs and accepting that the Germany military has a role to play in international peace-keeping. On the other hand, the global community needs to accept Germany's powerful role in world affairs by giving the country a permanent seat in the Security Council of the United Nations.
Last modified on 4 December 2017
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