The outcome of the March 20 Tasmanian election should be known by tonight, but whatever the technical result — 11-10-4 to the Liberals or 10-10-5 — there is no certainty who will govern.

The forgotten element in this election is the role of Tasmanian governor Peter Underwood, the former chief justice.

Both major leaders appear to have adopted the premise that the party with the most seats or, in the case of 10-10-5, the most votes statewide, should form government.

It is a pledge that has come to haunt incumbent premier David Bartlett. Not only is he under pressure from within Tasmanian ALP ranks and those across Bass Strait to hang on to government, but also he would be doing the governor a gross disservice constitutionally by advising him to appoint Liberal leader Will Hodgman as premier.

Under the Westminster system a premier is the principal adviser to the governor, and, in normal circumstances, the governor accepts the advice of the premier.

The governor must retain one of the leaders as his adviser. If Bartlett tells Underwood that Labor is not prepared to govern in minority and that he should summon Hodgman, Underwood is placed in the invidious position that Hodgman could be ousted in a confidence motion if there is no agreement between the Liberals and the Greens. This could happen in a 10-10-5 parliament where the Liberals have to supply a speaker, who does not have a deliberative vote on the floor of the house.

If Hodgman were defeated on the floor of the house in those circumstances, Underwood would be left with no adviser. He would have no option but to call a fresh election.

Bartlett would place the governor in a far better position by advising him that Labor should go to the parliament to test its confidence. If the House of Assembly fails to provide confidence in the minority Labor government, then Underwood’s course is clear. He would summon Hodgman to determine whether he could provide secure government. Assuming Hodgman would confirm that, he would go to the house as premier (and Underwood’s new chief adviser) and, presumably, also face a confidence test at some stage.

This course of events also puts the acid on the Greens, who, with four or five seats, hold the balance of power. They will have at least one and possibly two opportunities to demonstrate to the voters of Tasmania how they will exercise that power.

It may be that the end result would be an early, if not fresh, election, but the constitutionality of what had occurred would leave the institutions untarnished.

There is grave concern in Tasmania that Bartlett should not have made the commitment to allow the Liberals to govern. That commitment was not his to give. It may be advice that Underwood cannot accept. Therefore, it should not be offered.

One can understand, in the heat of a campaign, why Bartlett would have given such a commitment. Outwardly it seems the fair thing to do and, strategically, Labor might be far better off sitting out this term and watching the fun between Liberals and the Greens unfold, but it may so compromise Underwood that the commitment has to be erased. There are several ways of doing that. Bartlett either changes his mind or he is replaced.