As I have been critical of the reasons which the Governor, Mr Underwood gave for commissioning Mr Bartlett rather than Mr Hodgman to form a new government, I should publish my reasons in more detail. Firstly, I would like to express my congratulations to the Governor for publishing his reasons (HERE).
Such reasons have rarely been published in the past. It was a win for transparency and open government and enables public discussion of the appropriate way to handle a difficult situation. The rules governing the Governor’s responsibility to commission a new government when no party has a majority in the lower House of parliament are neither clear or well understood and the governor’s publication of his reasons can only help clarify them and increase understanding of them.
Secondly, although I have been critical of the Governor’s reasons, I do not believe that he was partial in any way. The rules governing the choice of a new government are not clear cut, leaving plenty of scope for honest differences of opinion. Thirdly, I should make it clear that I disagree with the process and not necessarily the ultimate outcome. If Labor and the Greens reach any accord or power sharing agreement which enables Mr Bartlett to govern with Green support, the result may be a Labor government regardless of the decision of the Governor. Similarly, if the Greens and the Liberals reach an agreement, that may lead to a Liberal government regardless of whom the Governor commissioned.
I disagree with the Governor because I am of the opinion that he gave too much weight to incumbency. The essence of his reasons was that the Incumbent Premier, Mr Bartlett, had the responsibility to accept a commission to form government in order to test its support in the House of Assembly unless Mr Hodgman was able to demonstrate to the Governor’s satisfaction that he was able to form a stable government with a guarantee of support from one of the other parties. That in my opinion is wrong because it judges the Opposition’s claim to form government against a different and higher standard than it does the incumbent’s. The Governor did not require Mr Bartlett to show that he was able to form a stable government or that he had the support of any other party in the House of Assembly.
It may be objected that Mr Bartlett was only commissioned because there had to be a government both to carry on the business of government and to test its support in the House, where governments are ultimately made and unmade. However, that ignores the reality of the situation. Unless two of the parties entered an agreement, whomever the Governor commissioned was likely to be able to form a government which commanded the support of the House. If Mr Hodgman had been commissioned, it is unlikely that Labor would have moved a motion of no confidence because that would have been inconsistent with Labor’s electoral commitments to allow the party with the most votes to form government. But if Labor had moved a motion of no confidence, it is unlikely that the Greens would have supported it because they did not want to be seen as agents of instability. Labor and the Greens may have negotiated a power sharing agreement of the type they are now considering, but that may have been less likely if Mr Hodgman had been commissioned. If they had negotiated an agreement, the Hodgman government would have fallen on the floor of the House just as the Bartlett government could fall if no Labor Green agreement is negotiated and the Greens turn to the Liberals. Whether there will be any agreement between any of the parties is in the realm of speculation and was wisely ignored by the Governor.
The Governor acted on the view that convention requires the Governor to commission the incumbent to test support in the House if the Leader of the Opposition is unable to demonstrate to the Governor’s satisfaction that he has the support of the House. I disagree. In my opinion, that view of the conventions, by requiring the Governor to satisfy himself that the Opposition can form a stable government, leads to the Governor’s intervening too much in the process, thus opening up the possibility that he will be seen to be partial. Instead, I adhere to the view of Sir Ivor Jennings that if the incumbent Premier is unable to form a government after a general election, the Governor’s duty is to invite the Leader of the Opposition to form a government. Convention requires the following where after a general election no party or alliance of parties has a clear majority in the House:
1. The Governor meets with the incumbent Premier to determine if he is in a position to accept a commission to form a new government. As the incumbent Premier is entitled to test his support in the new House, if he had advised the Governor that he was able to form a government, he should have been recommissioned. The Governor correctly indicated that he would have recommissioned Mr Bartlett if he had given that advice in order to enable him to test his claim to govern on the floor of the House. It would have been wrong for the Governor to have asked for Mr Bartlett to demonstrate that he could control the House by producing commitments from other party leaders to support his government. Nothing in the Governor’s reasons indicates that he would have asked for such commitments and he would have been wrong to do so.
2. When Mr Bartlett indicated that he did not believe that he could or should govern, convention required that he resign there and then. If he had been unwilling to do so, the Governor should have asked for his resignation on the grounds he had only two choices, to accept a commission or to resign. If Mr Bartlett had resigned, it would have made it clear that an incumbent Premier has only one advantage over the Leader of the Opposition, the advantage of having the first opportunity to be commissioned to form a government. If he does not accept that advantage, he resigns and as he is no longer incumbent, he has no other advantages. In my opinion, the Governor was wrong to allow Mr Bartlett to remain in office while he talked with Mr Hodgman. However, the Governor was correct in not considering the adequacy of Mr Bartlett’s reasons for not accepting a new commission or asking him to reconsider his decision at this early stage in the process. To have done either of these things could have created the perception that the Governor preferred Mr Bartlett to Mr Hodgman as Premier.
3. I expressed the opinion last week that the Governor should have acted on the advice of Mr Bartlett to offer Mr Hodgman a commission to form government. I am now of the opinion that that is wrong. The outgoing Premier has no right to advise as to his or her successor in such a situation because, as the outgoing Premier, he cannot be held responsible to parliament for that advice and because no advice is needed, as there is only one appropriate course of action available to the Governor. When the Premier declines a commission or resigns, convention requires the Governor to offer the Leader of the Opposition a commission to form government.
4. After the Premier resigns, convention requires that the Governor call on the Leader of the Opposition to accept a commission to form government. Convention requires, if the Leader of the Opposition states that he or she is in a position to form government, that the Governor commission him or her. Just as the Governor should not enquire into the claim of an incumbent Premier that he or she will be able to control the House, the Governor should not enquire into a similar claim by the Leader of the Opposition. To require the Leader of the Opposition’s claim but not the Premier’s claim to be supported by commitments of support from other parties is to apply different standards to the two claims and to set the bar much higher for the Opposition than for the Government. That is wrong. Therefore, when Mr Hodgman stated that he could form government, the Governor should have commissioned Mr Hodgman to form a government in order to test that government on the floor of the House. The Governor should not have required Mr Hodgman to produce evidence that he could form a stable government.
5. If Mr Hodgman had declined the commission, the Governor would have had a much more active role to play in ensuring that a government was formed. At this point he would have needed to talk with the party leaders, including the leaders of the small parties, such as the leader of the Greens, to remind them of the duty and need to form a government and test the adequacy of any reasons they gave for declining to do so. As a government must be formed, the Governor would also have been entitled to talk to other members of the major parties, such as Deputy-Leaders, to see if they were willing to accept a commission.
At the end of the day, if no one had expressed a willingness to accept a commission, the Governor was required to make a judgment as to who was most likely to have the support of the Lower House. In making that judgment, the Governor could have talked to experts, elder statesmen and members of parliament who were not party leaders. He could also have taken into account, in my opinion, the perceived legitimacy of any new government as that is likely to affect its capacity to control the House in the long term. Legitimacy may be affected by the number of seats won, the number of votes received, perceptions as to who were the winners and who were the losers in the election etc.
6. If no one could be found who was willing to accept a commission to form a government and test its support in the House, the Governor had to commission a government for the sole purpose of advising another general election and of carrying on the necessary functions of government in the interim. That government would necessarily be a caretaker government and the Governor would need to take care to ensure that it gained no political advantage from its commission.
7. In my opinion, there is nothing in the conventions which suggests that the previous incumbent is the default option who must accept a commission if there is no obvious alternative. It is true that members of the lower house are under a duty to form a government if they are in a position to do so, and party leaders have particular responsibilities in this regard, but the duty is the same for all members and leaders. In my opinion, the Governor was wrong in assuming that if there was no obvious alternative, the previous incumbent had a special constitutional responsibility to form a government and to test its support on the floor of the House.
To sum up, convention required the Governor to commission Mr Hodgman once he indicated that he believed that he could form a government which could command a majority on the floor of the House. The Governor should not have enquired into the basis of Mr Hodgman’s claim to govern or required undertakings from other party leaders to support a Hodgman government.
Once the Leader of the Opposition stated that he was in a position to govern he should have been commissioned to do so in order to test his claim on the floor of the house. Just as it was not the responsibility of the Governor to test any claim the Premier may have made to be able to command a majority in the initial interview, it was not the Governor’s responsibility, once the Premier said that he did not believe he could command a majority, to test the Leader of the Opposition’s claim to be able to do so. The appropriate action at that point was to commission the Leader of the Opposition to test his ability to control parliament on the floor of the house. That ensures an even playing field for both sides.
When the Governor spoke to Mr Hodgman for the first time and even when he commissioned Mr Bartlett, he did not know that Mr Hodgman could not succeed in forming a stable government. If he had commissioned Mr Hodgman, the Greens may well have supported a Hodgman government because they did not want to appear to be agents of instability. Even later, when the Governor rejected Mr Hodgman’s claims, all he knew was that Mr Hodgman did not have a guarantee of Labor support. That left Labor free to support a Liberal minority government if and when they chose to do so. So on two grounds it is wrong to say that the Governor knew that Mr Hodgman could not succeed:
1. Mr Hodgman may have obtained Green support with or without guarantees
2. Labor may have supported a Hodgman government without any guarantees as to that support.
Hence there was no good reason not to commission Mr Hodgman on the same basis that the Governor would have commissioned Mr Bartlett but for the advice he offered, that is to see if he could make good his claim to be able to govern on the floor of the house. For the Governor to test Mr Hodgman’s claim to govern was to apply a different standard to him, a higher standard than that applied to Mr Bartlett. But once having decided to do that, the Governor should have applied that higher test even-handedly. Before appointing Mr Bartlett, he should have tested the assurances of Green support for a Bartlett government in the same way he tested Labor assurances of support for a Liberal government. He may well have found those assurances wanting on a number of grounds.
Incumbency is relevant but only marginally so. Under the Tasmanian Constitution, incumbency after an election is a formal device lasting a week after the declaration of the polls so as to give time to commission a new government. The only advantage it gives in a situation such as this is that it gives the incumbent the first opportunity to form government and test its support in the lower house. Having declined that opportunity, Mr Bartlett lost any advantage that incumbency conferred. That would have been much clearer if he had resigned when he first declined a commission as I now believe he should have done.
I think the Governor made a mistake, but I certainly do not believe he was partial. That mistake was the result of his belief that he had a responsibility to ensure stable government if possible to do so. Although the Governor’s duty is to secure the strongest government in the minimum time, in my opinion that does not require the Governor to seek to ensure stable government. I do not believe that that is his responsibility mainly because governments stand or fall on their ability to control the lower house, something over which the Governor has no control. Undertakings given to the Governor not to support motions of no confidence are of little value in this regard because they are always qualified and the qualifications can be used to justify almost any support for such motions. Therefore the Governor should not seek them but simply rely on the judgment of the party leaders as to whether they can control the house. In this way the Governor can avoid any appearance of partiality.
If the Governor does enquire into the degree of support which a party leader may command, or does seek undertakings of support for a minority government, he or she risks being seen as partial. That risk is heightened, where, as here, the Governor is not satisfied that a party leader can control the House and refuses to appoint him or her on that basis. It is much safer, because it involves less intervention and less need to judge the merits of a claim to be able to control the House, for a Governor to take such a claim at face value and commission the claimant to test it in the House. The Governor does not abdicate his or her responsibilities by adopting such a course, because, for reasons outlined above, attempts by the Governor to ensure that a party leader has guarantees of support from other parties is not likely to increase stability.
bart appointment – critique.doc
