AUSTRALIA HAS BEEN faced with a strangely familiar problem as the counting of votes in Saturday’s general election nears completion.

With the results in three seats yet to be finalised, both prime minister Julia Gillard’s Labour party and the opposing Liberal/National coalition have won 71 seats, with neither able to put together a majority government of 76 seats out of the 150 available.

As a result, with the country facing a hung parliament, it has had to turn its eyes to the UK, from where the bulk of its constitutional law is derived, to try and figure out what happens next.

In the UK, both Labour and the Conservatives had to try and woo the Liberal Democrats when neither was able to put together a parliamentary majority on their own – but Labour’s Gordon Brown, despite having seen his party decimated, was entitled to continue to govern until an alternative option presented itself.

Former prime minister Malcolm Fraser, who was the last to form a government after such a constitutional crisis, says the incumbent party – as it did in the UK – should be given the first choice to form the government.

Fraser – who has studied constitutional law in Britain – said the percentage of the popular vote, which was won by the Liberal/National coalition, should not be taken into account.

“Tradition has always had it that the leader of the party with a majority of seats will be asked to form government. If the number of seats were equal, then [...] precedent suggests that the incumbent will be given the first opportunity to form government,” he said.

As the Queen’s effective deputy in the country, it is up to the governor-general – who is not supposed to take political sides – to decide which of the two opposing parties is best prepared to lead a government.

Governor-General Quentin Bryce’s daughter, however, is married to a Labour MP – raising questions of her ability to remain impartial in the matter.