Antony Green dissects the constitutional issues surrounding Rudd's return to Labor leadership

By holding its leadership ballot with one more parliamentary sitting day before the winter break, the Labor Government has simplified the constitutional issues faced by Governor-General Quentin Bryce.

An important constitutional point is that the Labor Party caucus did not elect Kevin Rudd prime minister at its meeting on Wednesday night.

The prime minister is appointed by the governor-general, and continues to hold office while remaining alive, holding confidence, until they lose an election, or until they resign under other circumstances.

What Labor has elected is a new party leader that it believes should replace Julia Gillard as prime minister.

On Wednesday evening Julia Gillard visited Quentin Bryce, handed in her commission as prime minister, and advised that Kevin Rudd be sworn in as her replacement.

If the parliament were not sitting, then in the current minority parliament, the Governor-General might demur from such advice.

However, as parliament is sitting, Mr Rudd can be sworn in, and can then have his position tested by a sitting of the House of Representatives.

The Government also has to finalise the passage of the budget bills through the Senate on its final sitting day. This is required before an election can be held.

Presumably the Opposition will move some form of no-confidence vote in the new prime minister on the final day of sitting.

If the Government and new prime minister-elect in Mr Rudd can survive such a vote, then he can be judged to have the confidence of the House, and with supply having already passed the Parliament, any constitutional issue for the Governor-General will be resolved.

Mr Rudd could hold the election as timetabled on 14 September, bring it forward to as early as August 3, or hold off as late as November 30.

If Mr Rudd loses a confidence vote tomorrow, he would return to the Governor-General and advise her of the result. He would presumably then advise that an election be held as early as possible, the first possible dates being August 3 or 10.

Because in those circumstances Mr Rudd would not have the confidence of the House, the Governor-General would be entitled to seek other advisors to see if an alternative government could be formed in the current Parliament. Effectively this means that Tony Abbott could become prime minister before the election.

However, such a course of action would not normally apply this late in the term of a parliament.

If the only advice offered by the Opposition would be to hold an election, then it is entirely within the conventions of Governors and Governors-General to grant the dissolution and election to the existing prime minister, rather than appoint a different prime minister and grant a dissolution and election.

Once the dissolution is granted and writs issued, the prime minister would be in caretaker mode pending the election, so issues of no-confidence no longer matter.

If the House of Representatives were to pass what is sometimes called a positive vote of no-confidence, advising that a particular person such as Mr Abbott be appointed prime minister, the Governor-General may pay attention to such a vote.

However, the comments by the cross benchers seem to indicate that if they do not back Mr Rudd in a vote, they are more likely to prefer an immediate election.

This late in the parliamentary term, there is little point having a constitutional crisis over who should be the prime minister to request the election, when going to the election will allow the public to resolve the issue.

Under Section 13 of the Constitution, writs for a half-Senate election cannot be issued before next Monday, July 1.

This would give the first possible election date on August 3. A House election must be held before November 30, and while it is not required that a half-Senate election be held in conjunction with the House, no previous government has ever called a separate House election at a time when a half-Senate election could also be held.