If the Liberal National Party wins the Queensland election on Saturday, but its leader, Campbell Newman, loses his seat of Ashgrove, can he remain Premier?
This may be the question vexing minds on Sunday morning. The answer is not as clear as it might have been, due to a failure to make proposed constitutional amendments in 2005.
No change in premier until there is a vacancy
Although journalists often refer to a change in Premier on election night, there is in fact no change of Premier until there is a vacancy to fill. The office of Premier will only be vacated if Campbell Newman resigns to the Governor or – in exceptional circumstances – is dismissed from office.
Newman losing his seat at the election would not automatically vacate his office as Premier. Unlike in many South Pacific countries, where the Prime Minister is immediately disqualified from holding office if he or she ceases to hold a seat in the lower house, this is not the case in Australia.
For example, John Howard remained as Prime Minister, despite having lost his seat at the Federal election on November 24, 2007. Howard continued in office, in a caretaker capacity, until his resignation took effect when Kevin Rudd was sworn in on December 3, 2007.
Does the Queensland Constitution require the Premier to be a member of parliament?
There is no express provision in the Queensland Constitution that requires the Premier to be a member of Parliament. Section 43(2) of the Queensland Constitution states that the “Governor, by commission, may appoint a person as a Minister of State”. It does not require that this person be a member of Parliament.
This can be contrasted with Section 46, which states that the Governor may appoint a member to act as a minister when a minister is absent. The distinction appears to be deliberate and is presumably intended to permit flexibility. For example, if the Premier automatically lost office upon ceasing to be a member of Parliament, this would occur every time Parliament was dissolved and there would be no Premier during the campaign.
This is why constitutions that require ministers to be members tend to include a grace period to accommodate timing problems. Section 64 of the Commonwealth Constitution states that “no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.
South Australia and Victoria also give three months for a minister to become a member, while New Zealand gives a shorter period.
In 2005, Queensland’s Beattie Labor government introduced a bill that would have required the Premier and other ministers to be members of Parliament, subject to a 90-day grace period. The bill followed recommendations from the Legal, Constitutional and Administrative Review Committee of the Queensland Parliament that such a provision be inserted. The committee accepted that it was a conventional rule and a “key aspect of Queensland’s constitutional system that ministers must be members of the Legislative Assembly”.