The 43rd Parliament faces an extraordinary moment.
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The combination of hung Parliament and a leadership change in the governing party so soon before an election has produced what could amount to the nation's biggest constitutional crisis since the dismissal of the Whitlam government, as the 43rd Parliament enters its final day.
University of New South Wales constitutional expert George Williams said while the Labor Party could choose its leader, in a hung Parliament its leader would not necessarily be Prime Minister.
Kevin Rudd would need the support of crossbench MPs to deliver him a parliamentary majority to keep Labor on the Treasury benches.
Should the Coalition or any other MP move a motion of no-confidence, Mr Rudd would need the support of five of the seven crossbenchers to survive. As things stand he could only be confident of four crossbench votes, those of Bob Katter, Craig Thomson, Adam Bandt and Andrew Wilkie.
Mr Katter – who supported Tony Abbott over Ms Gillard to form government after the 2010 election – said on Wednesday if Mr Rudd became Labor leader he would provide a vote of confidence. He said this was not in the interests of his fledgling party but was in the national interest.
"To do otherwise would be to condemn Australia to a landslide election, which would certainly not be in the interests of our country," he said.
Greens leader Christine Milne said on Wednesday the party would not do anything to facilitate Tony Abbott becoming prime minister.
Mr Wilkie said he had written to Mr Rudd indicating he would give him "confidence in the House of Representatives in the event that her excellency the Governor-General commissions him as prime minister."
"It's not my business to takes sides in the Labor Party leadership."
Tony Windsor – one of the kingmakers who installed Ms Gillard as Prime Minister in 2010 – indicated he would be more inclined to support Mr Abbott to form government over Mr Rudd.
The two remaining crossbenchers – Rob Oakeshott and Peter Slipper – have refused to be drawn on how they would vote on any no-confidence motion.
If Mr Rudd lost a no-confidence motion on the floor of Parliament, Governor-General Quentin Bryce could commission Mr Abbott as Prime Minister, if she thought he had the support of the House.
If Mr Rudd won a vote of no-confidence, he could stick to Ms Gillard's plan for a September 14 poll, or hold an election as late as November 30.
A Labor Party source said the Rudd team was confident the constitutional issues could be managed.
Professor Williams said another option open to Mrs Bryce would be to commission Mr Rudd as caretaker Prime Minister.
Professor Williams said when previous state and federal parliaments had faced similar circumstances, they had done so much earlier in their terms. The present situation was unique because it had arisen so soon before Parliament was due to rise for the election. It was possible Parliament could be recalled so support for the government could be tested.
Another complication is that Mrs Bryce is Bill Shorten's mother-in-law. But in 2010, Mrs Bryce sought advice from the then Solicitor-General, Stephen Gageler, SC, who concluded
that political relationships were a reality of office and had no legal bearing on her work.
But Anne Twomey, a professor of constitutional law at Sydney University, said if Mrs Bryce was accused of a conflict of interest she could be forced to leave the country and appoint NSW Governor Marie Bashir – as the governor of the largest state – to do her job.
