ON the day after the election with around 83 per cent of the votes counted, the Canberra Liberals had won the largest number of seats, but the Labor Party had the highest number of first-preference votes.

For yet another ACT election, it comes down to who wins the balance of power. Even with a first-preference swing of 4.9 per cent against the Greens, they are still likely to decide government – unless the Motorist Party’s Chic Henry unseats Green convener, Meredith Hunter in the electorate of Ginninderra.

Zed Seselja has managed a significant swing of 7.1 per cent in favour of the Liberals and has already argued that the conservatives, as the party with the highest number of seats in the Assembly, have earned the right to govern. A neat argument with just one problem: it is not consistent with the Westminster system of government nor with the ACT Self-Government Act, which is effectively the ACT Constitution.

Katy Gallagher has responded using the argument that, with the highest number of votes of any party in the

election, the Labor Party has the moral right to claim victory. Both leaders have been wise enough to leave these as informal comments instead of trying to claim victory on an election night that saw a swing in favour of both parties.

The significant swing against the Greens will most likely halve their numbers in the Assembly leaving them with just two members. However, the swing against them was not enough to allow such a significant swing for the Canberra Liberals and the small swing in favour of Labor.

The reality is that most of the swing came from the non-sitting parties. In the 2008 election there was a strong showing by candidates such as 2CC radio announcer Mark Parton and former Queanbeyan Mayor Frank Pangallo. It was only Chic Henry, for the Motorist Party, in Ginninderra and across-the-board support for the Bullet Train for Canberra Party (4 per cent) that really picked up a proportion of these other votes. Otherwise, there was significant swing away from these non-sitting minor parties and candidates that allowed the major parties to both increase their first-preference vote.

Following the election of the Speaker at the first meeting of the ACT Assembly, elected members will vote on who will be Chief Minister. The member who has most votes in the Assembly will become the Chief Minister and will appoint the government Ministers. It is not a question of who won most of the first-preference votes any more than which party won more seats than another party. Under Westminster, the Prime Minister, Premier, First Minister or Chief Minister is the elected member who can command a majority of the votes in the Parliament.

The most likely outcome is that the vote of the Greens will determine the final outcome of the party that goes into government. The Greens have worked well with Labor since the 2008 election and are likely to support them in government again. Their differences with the Canberra Liberals seem to me to be an obstacle that is too difficult for them to surmount to have meaningful negotiations with Seselja and his team. Another reason the Greens will not be able to support the Liberals is that Greens support a more equitable system of taxation – the very antithesis of the “triple your rates campaign” of the Conservatives.

On the other hand, Gallagher has not taken the Greens for granted and is likely to conduct a sensible negotiation. She will not only want a guarantee of support should a motion of no-confidence be put by the Liberals, but a general commitment to the major goals of the Labor Party. In return, the Greens will expect sensible support for the sorts of policies that they have put to the electorate. The Greens’ policies at this election were well beyond the “aspirational”. They were costed and the costs analysed by Treasury. As such, negotiations should be on a firm and practical footing.

It remains unclear as to how the preferences will fall with regard to the Greens in Molonglo, but they will win one seat. It is also possible that Labor will win an eighth seat or Chic Henry will unseat Meredith Hunter to support a Canberra Liberal government. However, it is looking most likely that Katy Gallagher will be able to form government with the support of the Greens.

Michael Moore is a former independent member of the ACT Legislative Assembly and minister for health.