Tasmanian Times

The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. No price is too high for the privilege of owning yourself. ~ Friedrich Nietzsche

The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. No price is too high for the privilege of owning yourself. ~ Friedrich Nietzsche

Richard Herr

The Party Political Dance

IT IS MORE than a little strange that the prospect of forming a Government from a Parliament where no single party controls a majority of seats seems to cause widespread alarm in Tasmania.

Minority Government is scarcely a novelty in many democracies in Europe. Even more importantly for Tasmania, the Westminster conventions that are presumed to keep a Government accountable to, and responsible to, the Parliament all derive from a time when Governments did not enjoy the security of a disciplined party majority.

Yet, two party control of the political agenda has become firmly established across Tasmania and, indeed Australia, as a putative ideal of the Westminster system. As a result, today, many of the democratic virtues of the Westminster system have been transferred to political parties.

When there are objections in the media that Ministers are not compelled to account for their actions, it is merely a shorthand code for saying the Parliament does not have the capacity to over-ride the majority party’s control of the House of Assembly. Similarly, when members of the public complain they cannot get any politician to act on their complaints, they are in fact saying that party discipline is too tight to allow outside opinions onto the political agenda.

There is much more that could be said about the misconceptions surrounding minority Government but this brief article addresses one issue currently abroad regarding pledges by some politicians not to serve in a minority Government.

There is a rather cute irony in that some of the same politicians have argued that instructing an MHA what he might say to a parliamentary committee is a breach of privilege yet, without embarrassment, turning to the public and instructing the electors on the only votes that they, the politicians, will allow to be counted.

Actually, the promise not to form a minority Government or to accept a cross bench arrangement to govern if the party does not have a majority of its own is really part of a two-step electoral dance.

The second step in this dance is rather more like a game of “passing the parcel” than actually a waltz or fox trot.

The current step is nothing more than a pre-campaign (not long to become the campaign) posturing of the two major parties trying to bluff and counter-bluff the electors into voting for them as the only path to “stable” (i.e. majority) Government.

The promises are just so much electioneering at this stage.

This is not to say that the promises are not meant — they may well be but they are still only pledges. They only come into play after the election.

While not really binding, there is a question of the prudence of making such promises without a specific electoral result actually on the tally room board. If an acceptable independent were elected, perhaps as the Liberals found with Kevin Lyons in 1969, the current promises could prove unnecessarily embarrassing.

The second step in this dance is rather more like a game of “passing the parcel” than actually a waltz or fox trot. Contrary to some claims around town, only the party out of power, currently the Liberals (the Greens have not made such a pledge) can make the promise and stick to it.

The reason is this:

We live in a constitutional monarchy. This has meant that the Governor should act on the advice of Ministers drawn from the Parliament. However, Ministers enjoy their executive authority under commissions bestowed by the Crown (the Governor). The circularity of this arrangement is something of a trap when a governing party loses its majority at an election.

Provoke an unnecessary constitutional crisis

The Premier’s commission is the “parcel” since he/she is the Governor’s first adviser. When the electoral music stops and the votes are counted, if the party holding the parcel loses its majority, it cannot merely drop the parcel because it said it would. The Governor needs to act on advice and that places an obligation of the governing party’s leader to offer advice right up to the point that a new premier can be found to accept the commission to govern.

The Opposition can refuse to accept the parcel if it does not have a majority but doing so forces the Government to continue to hold the parcel even if it does not wish to do so, having lost its majority. Should it try, the Government would provoke an unnecessary constitutional crisis, for which it would have to answer at any subsequent election.

This is not to say that a Governor cannot exercise some discretion in such uncertain circumstances. There are some very rare and unusual options that a Governor might consider but the one that has occurred elsewhere is the appointment of a “caretaker” Premier who might exercise minimal executive powers in the event of a deadlock pending new elections.

However, this is highly controversial and, in Tasmania’s case, despite numerous cases of non-majoritarian Government, it has never occurred.

Richard Herr is Associate Professor, School of Government, University of Tasmania

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  1. Antony Green

    January 18, 2006 at 8:02 am

    Richard Herr is right in describing the commissioning of government as being like pass the parcel. Labor will get stuck with the parcel. The question is, how does Labor get rid of it, and how hard is it prepared to play in creating a crisis to bring on another election?

    If the Labor Party lost its majority, the Liberal Party refused to take office, and Lennon and any other possible Labor Leader (remember how Ray Grrom resigned in 1996) continued to refuse to take office, then it is entirely possible that a minority Green government could form. It was in similar circumstances that the first Labor governments formed in Queensland, Victoria and Tasmania at the start of last century.

    However, in each case, the new government lasted little more than a week. A minority Green government could be allowed to form by the major parties as part of the process of proving the parliament was unworkable. It would almost certainly be terminated quickly by a vote of no confidence.

    It is extremely unusual for a Governor to accept advice for an early election within a year of an election. If the Lennon government lost its majority and was bent on forcing a new poll in the hope of regaining its majority, it would require the engineering of a constitutional crisis.

    One way would be to create havoc on electing a speaker. On first meeting, the House of Assembly must elect a Speaker before all other business. If Labor does not nominate a Speaker to preserve its numbers, the opposition may do so. If the Opposition does not, the Greens may, and as the only nominee, would be elected. However, the major parties could promptly vote them out in a no confidence or dissent motion. The whole process would then have to be repeated. There are precedents (Newfoundland 1908) of early elections brought on by the inability to elect a Speaker.

    The second would be for the Labor government to recommend a new election, and on rejection of this advice, recommend the Governor ask the Liberal party to form government, and if the Liberals refuse, suggest the Greens. If the Greens accept, Labor would leap out of office as quickly as possible and work to bring down the new government. Once defeated, Labor would have achieved its constitutional goal of proving the Parliament unworkable, and only be prepared to re-accept office on the basis of agreement for an early election. How early an election would be a matter of negotiation.

    If the Governor did not accept first advice from Labor for an early election, and a Green government was appointed and defeated, by convention the Governor would not grant the Greens a dissolution to govern until an election, but rather offer the reigns of office back to the Premier who first offered that advice. There are many Australian examples of governments knocked back for an early election, being handed back their commission and granted an election after the defeat of a short term government.

    So, a full on constitutional crisis, and if both sides hold true to refusing to govern in a minority, it could produce a brief Green government.

    We haven’t seen a one week administration since Victoria in the early 50s. The steps I outlined above are based on past constitutional precedent, but given we are today so unfamiliar with the processes, and there is such a pressure for stable government from the business community, it may be that the sequence of short-term governments may be side-stepped.

  2. phill Parsons

    May 28, 2005 at 7:43 am

    And if, in the interests of ‘stability’ in Tasmania, the current Premier continues in the caretaker role, is another election called or has the will of the people elected a parliament and if money bills pass the lower house then defacto we have a minority government without wishing to be sworn in as a new government.

    Or is that against statute law.

    And if, in the interests of ego, Lennon refuses to caretake and Hidding is, because he is the leader of the next largest group of members asked, and he also refuses, is the Governor bound to ask the smallest party to take care until an election can be called.

    And if the Greens were to accept and caretake with a very small ministry, are they able to continue until the money runs out and a new money bill needs to be passed or do they fall when the parliament refuses confidence on the first sitting day.

    Surely they are the caretakers until we vote again and if there the same result do we go on and on, the business of government arrrested in time.

    And what is the role of the colonial anchronism.

    Whilst convention has it that the lower house is the one from which the head of government is selected, is it writ in law or can a group of ‘independents’ from that house try out the levers.

    They could certainly flesh out a ministry even though Whitlam and Barnard, the Federal Member for Bass in 1972 formed a 2 person Federal ministry

    Is this a joke played on the supposed importance of stability for the maintenance of a favourable investment climate in the intersts of pay and perks.

    It is clear that neither Lennon or Hidding feel confident about their capacity to put a convincing argument for a majority government to the electors opf Tasmania.

    Bonham has put some numbers up, giving plausability to a parliament without a majority party and so agreeing with the number crunchers of the old parties.

    Otherwise a pledge is only a scare tactic to gather votes and surely that is below the upright men leading the old parties.

    I look forward to seeing precedents set or somebody blink in a standoff that would do a Mexican proud and make a joke of a minature 2 house parliament again.

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