Last week, the Lower House of the Tasmanian Parliament, the House of Assembly, passed a motion of no confidence in the Premier, not in the government per se. The Premier, Jeremy Rockliff, has indicated that he will not resign as Premier, but will ask the Governor to call a new election.

The Premier is blaming the Leader of the Opposition for forcing another election within little more than a year from the last one. This suggests that the passage of the no confidence motion left him with no option but to ask for an election. This is not true.

The passage of the no confidence motion left the Government and the governing Liberal Party with other options:

Firstly, interpret the motion according to its words as a motion of no confidence in the Premier, rather than as a motion of no confidence in the government.

On this interpretation, if the Premier resigns as Leader of the Liberal Party and Premier, the government may be able to continue under a new leader.

Secondly, interpret the motion as a motion of no confidence in the government, not just in the Premier. On this interpretation, the government cannot continue in office, as a government must have the confidence of the House to continue in office.

But that does not mean that there must be another election. The government has the option of resigning without asking for another election, giving the Leader of the Opposition the opportunity to attempt to form a government.

Given that these other options exist, should the Governor require that they be explored first before agreeing to call another election?

The Role of the Governor where the Premier seeks a new election after being defeated in a motion of no confidence

Where a Government is defeated in a motion of no confidence or similar vote, there are cases in which the Governor must grant an election to the defeated Premier and there are cases where the Governor must refuse an election. If the motion of no confidence is passed about eighteen months or less before the next election is due, the Governor should grant a new election. To refuse would be unreasonable because Parliament has run most of its four-year term.

If the motion of no confidence or similar motion is passed within a few months of the previous election, the Governor should refuse an election and commission the Leader of the Opposition to form a government.

If the Governor allowed another election within a few months of the previous election, it would allow a defeated government to seek to overturn the election result in a new election. This case falls within the middle as parliament has only run about one year of its four year term. In such a case, the Governor must decide whether a new election is warranted.

Although there are arguments in favour of granting another election, in my opinion the Governor should refuse an election until the other options mentioned earlier have been explored. The Governor should only grant an election if, after exploring the above options, it is clear that no other government is likely to be able to command the support of the House of Assembly.

Resignation of the Premier not the government

If the motion were interpreted as expressing no confidence in the Premier rather than the government as a whole, Rockliff could resign as Premier and Leader of the Liberal Party, the Liberal Party could elect a new leader and see whether the government could, under the new leader, command a majority in the House.

If the government under a new Premier could command a majority in the House, it could continue in office without an election. The Governor would simply commission the new Leader to form a government which would remain in office until it was defeated in the parliament or until the next election.

It is well accepted in Australia that there is no requirement to go to an election simply because the Premier or Prime Minister has resigned.

Resignation of the government without seeking a new election

Once the government, not just the Premier, has resigned, the Governor must commission a new government as the Constitution requires that there be a government responsible to parliament for the governing of the State of Tasmania. Normally, if the government resigns without seeking a new election after being defeated in a motion of no confidence, the Governor will call on the Leader of the Opposition and offer him or her a Commission to form a new government.

The Leader of the Opposition may need time to negotiate with minor parties and independents to see if they would support their government before accepting the Commission. The Leader of the Opposition must accept the Commission unless, after discussions with the minor parties and independents, it is obvious that their government would not have the confidence of the House: that is they would not have sufficient support to have a majority on Supply Bills, which are Bills authorising the spending of government money, and motions of no confidence.

If the Leader of the Opposition is likely to have majority support on supply bills and motions of no confidence, he or she is under an obligation to accept the Commission, especially after initiating a motion of no confidence. The Constitution requires that there be a government and that the government must have majority support in the House of Assembly on supply bills and motions of no confidence.

Therefore, all parties who are elected to the Lower House have an obligation to form or participate in government if able to do so, whether that is in coalition or on their own.

A Leader of the Opposition cannot decline a Commission because they may not be able to command a majority to enact their legislative programme or because the only way they can govern is by reaching an understanding with other groups with whom they would prefer not to cooperate.

We occasionally hear statements from party leaders that they will govern in majority or not at all. These statements are inconsistent with the constitutional requirement that there must be a government, because if all parties adopted this approach, it would not be possible to form a government if no party had a majority after an election.

To refuse an election and call on the Leader of the Opposition cannot be said to defeat the will of the people in a case such as this. In the last election, the people did not give one party a majority. The largest party in the current parliament is the Liberals with 14 members, followed by Labor with ten, the Greens with five, five independents and one member of the Jacqui Lambie network.

More than one possible government could have been formed. First, as happened, the Liberals could have formed a minority government relying on support from independents to form a majority on issues such as supply and motions of no confidence. Secondly, Labor may have been able to form a government relying on Greens and independents for support on the crucial votes. As both outcomes were open in the aftermath of the election, neither is inconsistent with the will of the people.

After the election, Rockliff, consistently with established practice, was given the first opportunity to form government because he was the Leader of the largest party and because he was the outgoing Premier. He took that opportunity but has now been defeated in the House on a motion of no confidence.

In the circumstances, the Governor should explore the other outcome available immediately after the election and call on the Leader of the Opposition, Dean Winter, to form government. The Governor should only call a new election if Winter is unable to form a government.

The position is different if the people had elected a majority government, but that government was defeated on a motion of no confidence because members of the governing party voted against the government. In this situation, to allow the Leader of the Opposition to form a government could be seen as defeating the will of the people because the people chose one party to govern but end up being governed by a different party. In this case, there is a much stronger argument for granting the government which lost the motion of no confidence an election.

Conclusion

The recent motion of no confidence in the Premier has not necessitated another election.

There are other options available and these should be explored before the Governor agrees to a new election. Firstly, given the wording of the motion, which expressed no confidence in the Premier rather than the government, the Premier should resign as Leader of the Liberal party and as Premier allowing the Liberals to elect a new leader who may be able to command a majority in the parliament.

Secondly, the government could resign without seeking another election. In this case, the Governor should commission the Leader of the Opposition to form a government. He has no option but to accept the commission unless it is clear, after negotiations with the independents and minor parties, that he cannot command a majority on supply and motions of no confidence. The Governor should only agree to call another election if it is clear that the Leader of the Opposition cannot form a government.

Michael Stokes LLB (Hons) UTAS, M Phil (Oxon) taught Constitutional Law at UTAS from 1980 until his retirement in 2014.

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