Tasmania’s March 20 state election, which delivered the 10-10-5 conundrum for the next House of Assembly, delivers its coup de grace today when Governor Peter Underwood decides who will go to the new parliament as premier. It is not a lay down misere. Whatever his decision, the former Tasmanian Chief Justice will write constitutional history this day.
The incumbent Labor Premier David Bartlett would have you believe that he will tender political advice to the Governor that Labor is unwilling to govern in these circumstances, and Labor and the Greens (who have the five seats) have a historical enmity in Tasmania.
On November 18 last year both Liberal Opposition Leader Will Hodgman and Greens’ Leader Nick McKim supported a no-confidence motion in Bartlett (on his treatment of a former police commissioner) and, since “nothing has changed”, he cannot expect their support in forming a new government. The fallacy of this argument is within the quotation marks. What has changed is that there is a new parliament.
Plus, Bartlett omitted the fact the no-confidence motion was defeated. Plus, it was a motion of no-confidence in him, not in his government.
Throughout Easter, the ALP cognoscenti have been researching, discussing and comparing notes, not only on the options that Underwood has today, but also on the advice that Bartlett is able to tender him.
A common thread is developing. While Bartlett’s political advice, backed by his new Caucus, is that Labor is unwilling to govern and that Underwood should invite Hodgman to form a minority Liberal government, it is probably advice he should not tender. The premier has to tender constitutional advice, not political advice, today.
Solicitor-General Leigh Sealy presumably will have drafted that advice. It must say, claim the cognoscenti, that with a 10-10 standoff the incumbent government should go to the House of Assembly to test the numbers. To pass the buck to the Liberals is political advice, not constitutional advice.
As local political expert Professor Richard Herr has been arguing ever since election night, to advise otherwise, to do otherwise, places the Governor in an invidious position — if the Liberal government is tossed aside he has no nowhere else to go but to call a fresh election. It is untenable, says Herr, to deprive the Governor of as many opportunities as possible to administer an orderly transition of government. That implies not being party to Bartlett’s political strategies.
Underwood will have taken his own advice, from whomever he wants, not forgetting his own legal eminence. Sealy would be a primary source but, given Sealy is also advising the premier, Underwood will have gone further afield and he will have studied precedent, including the 1989 Tasmanian precedent when a written accord was deemed desirable for stable government delivered by two parties.
Incredibly, this intriguing situation facing Underwood, the interplay between head of government and head of state, has barely surfaced in the Tasmanian media.
There seems to have been an almost blind acceptance that what Bartlett and his Caucus have determined as their position will be adopted by Underwood and enacted today.
Having to teach public law, I’m as much in favour of constitutional kerfluffle as anyone else who likes a bit of political chaos to lighten their lives.
But the argument here is a bit thin. A ‘government’ is not commissioned: a Premier or PM is, followed by ministers on his/her advice. (For that reason, last year’s no confidence motion in Bartlett could have brought the house of cards down: his commission would have been withdrawn but he could have stayed on as leader, or a new leader refused a commission).
If Bartlett & friends effectively tender advice that they will resign because they are unwilling to work with Green support, only a fatuous Governor would say ‘prove it; vote no confidence in yourself in the Assembly”. At moments like this, distinguishing between ‘political’ and ‘constitutional’ advice is a distinction without a difference. What the Governor is entitled to is honest advice about facts and intentions, from the players mouths, from which he makes a ‘constitutional’ conclusion: which means he commissions who seems most likely to have the numbers. No point playing charades if there is a single and obvious answer.
Of course there’s a point to this: Labor wants to play Pontius Pilate, force the Greens hand and then let the Greens/Libs wear the opprobrium if the govt collapses in the short-medium term. The Libs could do the same thing today and then both major parties would share the blame for a fresh election. If the Lib-Green pact doesn’t last, the Labor leader will be invited to form a government. S/he can refuse and then Labor and to a lesser extent the Greens may wear blame for an early election…
Anyone considering a Liberal Minority government with quiet Labor approval (in other words a Lib-Lab partnership without them admitting it to the public)? They are the two most alike parties, after all. Even if they pretend otherwise.
Graeme Orr makes some good points. He makes it clear that what is currently occurring is a game of brinkmanship, concerned less with governing Tasmania now, and into the medium term, than with jockeying for positions in the next race. Whenever that is. This jockeying is about wearing the colours of opposition.
When we start discussing a republic again, I think an option will be to have no head of state – I previously thought the only think they really need to do is sort out in a Westminster system is co-ordinating minority governments.
It is quite clear this can be done by the parties alone on the floor of the fresh Parliament. I am even more convinced of no need to have one at all…
No head of state also obliterates the problems of defining reserved powers of an elected/unelected president.
I would be interested to hear from experts like Mr Orr on this proposition…
Reluctant as I am to disagree with Richard Herr, I think Graeme Orr is right on this one. If a premier resigns, he resigns; he can’t be made to serve against his will. And a resignation isn’t a promise to support someone else (although of course he might make that promise if he chooses): it’s perfectly coherent for Bartlett to say “My advice is that you should send for Will Hodgman and give him the opportunity to form a government, but I reserve the right to oppose that government on the floor of the House.” If Hodgman can’t put together a government, then the governor would offer Bartlett another chance: it’s his duty to exhaust all the options before agreeing to another election.