Barring a last-minute turnaround, it looks likely that Campbell Newman will lose his inner-city Brisbane seat of Ashgrove. However, as our very own William Bowe has predicted, his party looks set to win the election. And theoretically, that means he could remain premier of Queensland.

A column in The Conversation by Sydney University professor of constitutional law Anne Twomey has quickly made a splash after suggesting there was no legal reason Newman could not continue as premier. The argument goes like this: calling an election doesn’t mean the position of premier is vacant. Leaders continue to lead through an election and sometimes after, if the result is uncertain. And only a change in government necessitates a new premier. If the LNP wants to keep Newman, there’s no reason it couldn’t, even if he were no longer in Parliament. South Australia and Victoria have provisions indicating an office bearer cannot hold office for more than three months without a seat in Parliament, but Queensland has no such provisions, despite attempts by former premier Peter Beattie to bring them in in 2005. So if Newman can keep his party room on side, he could theoretically continue to be premier for the whole of the next term, despite losing his seat.

Twomey has support for her interpretation. Speaking on ABC Brisbane local radio yesterday, former lecturer in constitutional law at the Queensland University of Technology John Pyke said that was his understanding as well. Laureate Professor Cheryl Saunders, of the Melbourne Law School, also agrees. “Anne Twomey’s views are right,” she told Crikey, although noting it would be odd for a person who had lost his or her seat to hang on to office in the absence of some explicit constitutional authority for this.

And as Twomey told Crikey today, it’s happened before in other Westminister systems. In Canada, it isn’t even that unusual.

In British Columbia in 2013, for example, the British Columbia Liberal Party won its fourth election, but new leader Christy Clark didn’t win her seat. She stayed premier and was subsequently elected in a byelection after another MP stepped down on her behalf.

And if you go back further, to 1984, you find circumstances somewhat similar to Newman’s. John Turner was elected prime minister of Canada by the party room after the resignation of Pierre Trudeau, even though he didn’t hold a seat at the time. Instead of contesting a byelection, he then advised the Canadian governor-general to dissolve the Parliament. He then won his seat — but the party as a whole was comprehensively defeated in one of Canada’s biggest ever political landslides. Turner was prime minister for 79 days.

But public attitudes here are very different to those in Canada, Twomey concedes. “Over here, the attitude is you’re a loser for not winning your seat, so why should you get a second chance?” she told Crikey. “But when you read the news clippings about the same events in Canada, there’s this idea that the leader is a victim who led their party to victory and who is thus deserving of a seat. In fact, sometimes when it happens there, the opposing party will choose not even to run someone against a leader of the other party. So there’s a totally different attitude over there.”

It’s uncharted water for Australia. Any attempt by Newman to remain premier despite losing his seat would likely put the Queensland’s governor, currently former chief justice Paul de Jersey, in a difficult position. But it’s unlikely to come to that. Despite Newman yesterday insisting there’s no “plan B” for his party should he lose his seat, it’s hard to see the party room defering to someone who doesn’t even have a vote in Parliament. Not when there’s a premiership for the taking.

Peter Fray

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