I read Mike Adams (#20) comment in the TT editor’s “Bartlett gives up power” (HERE)and found it quite interesting. Mike asked a number of thought provoking questions. His remarks set me off on a bit of a google binge beginning with an attempt to find out whether his understanding “that government must command 50% plus one of the members” was correct. I found it very difficult to answer that on-the-face-of-it simple question.
My wobbly answer is that a government must in the House of Assembly, command 50% plus one on motions of no-confidence, supply bills and other bills – these last if the govt deems then to be of such importance as to justify a trip to Government House should they be defeated.
Richard Herr in “The possibility of minority government” (HERE)has demonstrated that since WWII minority governments have been formed at 42% of our elections. This figure seems certain to increase in the coming days. Herr has elsewhere written on the question of so-called ‘hung parliaments’ and his Feb2006 TT article “The truth about ‘hung parliaments’ ” (HERE) is well worth reading again as a special Easter treat. My guess is that the His Excellency is doing that right now!
I stuck an inquisitive toe into the (chill-to-some) waters of the Constitution Act 1934 (HERE) and read s25 (HERE). Quorum of the Assembly with interest. Subsection 2 and 3 caught my attention:
“(2) Except as provided in subsection (2A), all questions shall be decided by a majority of the votes of the Members present, exclusive of the Speaker.
(3) In the event of an equality of votes, the Speaker or such person as aforesaid shall have a casting vote.”
Somehow, I don’t think that s2 (above) deals with the initial formation of a government, this –from what we read in the dailies etc – is done by the Governor, following advice from the Premier when he appoints the incoming Ministry. It is from this point that Mike Adams’s question about a government needing to command ‘50% plus one member’ comes into play along with the said s2. Apart from Supply Bills, I wondered, does an appointed Government need a majority-on-the-day in the House? Seems to me that the Government only needs the Parliament’s support for its legislative program, to avoid motions of no-confidence and for supply. If it’s not particularly a reformist govt, then could it not get on with the simple job of administering its various portfolios?
Unrelated to these questions, I came across the following pieces of information when I was strolling through the “Standing Rules and Orders of the House of Assembly” [ copy and paste if link is dodgy: (HERE) http://www.parliament.tas.gov.au/ha/SO&Sessionals.pdf ] While interesting, they didn’t reveal the practical relationship between a government and its support on the floor of the House:
1 A secret ballot will be held should more than one nomination be received for the position of Speaker.
2 The number of Ministers is limited to 9 [A little riddle that I can’t solve is how the Constitution Act 1934 appears to limit the number of Ministers to 9, but by my count, there were (woops! nearly wrote ‘there are’) 10 in the last government. Was Doug Parkinson a ‘ring-in’?]
3 Where the Standing Orders do not otherwise indicate, the Assembly is guided by the practice of the House of Commons and other Australian Parliaments.
4 The Governor’s website (HERE) lists his Constitutional powers and duties, as well as reserve powers.
Regarding 4, these Governor’s (self-stated) powers include:
-the appointment of a Premier;
-the dismissal of a Premier, if he or she has lost the confidence of the Assembly or unable to secure supply, or is acting illegally;
-as a corollary to the last, to dissolve the House of Assembly and call an election &
-refuse to dissolve the House of Assembly if the Premier has lost the confidence of the House but there is another who can gain that confidence.
AND
In exceptional circumstances according to the Governor’s website, the Governor is authorised, indeed required, to act notwithstanding the absence of advice from his Premier or even contrary to that advice. This involves the exercise of the “reserve powers”. Following the enactment of the Australia Act, it would seem that the Governor’s reserve powers are restricted to:
-the appointment of a Premier;
-the dismissal of a Premier, if he or she has lost the confidence of the Assembly or unable to secure supply, or is acting illegally; [and we recall in these last days that the Premier, in stating his intention to advise the Governor to ask Will Hodgman to form a government, claimed he was forced to do this by the fact of the ‘No Confidence’ motion moved in the House by Nick McKim and Will Hodgman 18 Nov 2010 – the second last day of sitting before this election: (Video File HERE)
-as a corollary to the last, to dissolve the House of Assembly and call an election &
-refuse to dissolve the House of Assembly if the Premier has lost the confidence of the House but there is another who can gain that confidence.
Elsewhere, I found this morsel:
“After a general election the political party (or coalition of parties) with the support of a majority of Members in the House of Representatives becomes the governing party and its leader becomes the Prime Minister.”
(HERE)[http://www.aph.gov.au/house/info/infosheets/is19.pdf] It is albeit a Federal document, and while mindful that it is arguably more descriptive than prescriptive, I focus on the phrase “with the support of a majority of Members”.
And here my lurching through the legalese echoes the 2nd and questions the 3rd law of Thermodynamics and brings me to a point of apparent conclusion:
CONC: It seems that the Government is that group of Parliamentarians, one of whom who has the implied support of the majority of the House of Assembly, and comprises 9 members who are appointed by the Governor as Ministers. You’d expect that this must follow advice from the man commanding the most votes, (the Premier-to-be). These Ministers then govern as an Executive Council under the ‘supervision’ of the Governor and are controlled by the legislation that the Parliament – from which they were drawn – enacts. As seen earlier in my comments, the Governor as stated on his website, has the power to appoint the Premier and seems free in our particular situation, to choose either Will or David. Bit like a game of ‘two-up’ really.
Happy Easter Everyone
PS That’d be ok, n’est-ce pas, a Green Speaker with a casting vote?
PPS Mike’s comment in full:
“Bartlett with thirteen MPs was at full stretch to find ministerial material and as we know some were faced with jobs much bigger than they were.
How, therefore, is Hodgman going to find enough talent in a gene pool of just ten lower house members to provide ministers, plus, it seems, a Speaker?
And should Hodgman decide to recruit MLCs to his cabinet, what right of appeal does anyone have when the LegCo is deemed a House of Review and said ministers are unquestionable?
And what will the Governor decide, when, in my limited understanding, the constitution states that government must command 50% plus one of the members.
And if the Governor accepts Bartlett’s advice, albeit advice that is misplaced according to Richard Herr, what avenue of appeal is there, and who will appeal it?
Although the Governor owes his position to Bartlett’s party, it may be time for him to look towards a much higher duty.”
PPPs I am the only member of Parliament does not ever vote on matters before either House – Who am I?
