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As I earlier reported, the Greens were close to winning the balance of power in the lower house in both Tasmania and South Australia as at election day. The votes have been counted in SA and the Liberals have conceded defeat, with the Rann Labor government holding a clear majority of seats. But in Tasmania, the Liberals and the Labor Party are currently tied with 10 seats each, and the Greens holding the remaining 5 seats. Obviously 10 is less than 50% of 10+10+5. Neither Liberal nor Labor wants to form a coalition with the Greens, making this a very interesting state of affairs. A constitutional issue arises with the appointment of government – in a situation where the seats are precisely balanced, who will the Governor appoint? The political complications come from the fact that the future Government will have to deal with the Greens (or the future Opposition) in both the lower and upper house.

The constitutional issue is interesting because who the Governor appoints is not clearly set out in the Constitution and there is little judicial exegesis of the point because it is a non-justiciable matter. It’s all governed by strong constitutional conventions which suggest that the one who has the “confidence of the lower house” be appointed and that usually means the party or coalition of parties with the majority of seats. Apparently it is possible to form a minority government, where the party with the most seats (but still less than 50%) will form government without the need to formally declare a coalition and that has happened throughout Australia’s history. I say apparently, because I wasn’t aware of any such governments (though one currently exists in Victoria, and in Canada, and existed just ten years ago in Tasmania) and I only know about it after a bit of research. But to my very limited knowledge and research, an evenly split situation has never occurred.

Currently, the media focus is on pre-election comments by Bartlett, the Tasmanian Labor leader that in the event of exactly this situation, he would advise the governor to appoint the party with the highest number of votes in Tasmania overall. This is currently the Liberal Party, and the Australian reports that he is under pressure from within the Tasmanian Labor Party as well as the Federal Labor Party to change his mind. Kevin Rudd feels that a Liberal victory now would give the Federal Liberal Party momentum as we race towards a Federal election later this year with two marginal Tasmanian seats up for grabs.

I think this is so fascinating precisely because of all the scenarios that could play out. The simplest scenario (constitutionally speaking)  is that Bartlett will advise the Governor to appoint the Liberals, in which case he will. But that is also the least politically plausible, because that would mean he loses all power. If however, Bartlett advises the Governor to appoint him as Premier contrary to his pre-election comments, the Governor can either listen to his advice or not. Strictly speaking, those comments are irrelevant to the constitutional test (whoever has confidence of the lower house), but because the Governor is not bound by reasons or precedent, he can take whatever he wants into account. Furthermore, the test itself surely demands that the Liberal party be appointed. If the primary criterion of “most seats” is unavailable, then surely the secondary criterion of “most votes” kicks in.

I don’t think its as simple as that. Another convention demands that the Governor take the advice of the current caretaker Premier, who is (again by convention) the pre-election Premier – ie Bartlett. The Governor may only ignore the advice in certain circumstances, namely when appointing Premiers or in the event of illegality. And yet, I would argue, the very fact that there is a formality where Bartlett must advise the Governor means there is a certain barrier that must be passed before the Governor can ignore his advice. The power to ignore advice, in my humble opinion, isn’t contingent on the mere fact of an election, it is contingent on ‘confidence in the house’. Whilst having more votes indicates more support, I wouldn’t say that shows sufficient confidence. There is a strong argument that the House itself should be allowed to decide, by letting the Greens choose who to side with and allowing Bartlett to continue governing in the meantime.

Even more interestingly, I would ask, what if the Governor does the “wrong” thing? The consequences will be absolutely zilch. Given the uncertainty of the constitutional conventions, there is no “wrong answer”. There is a strong case for listening to, or ignoring Bartlett’s advice. Even if something were objectively and unambiguously wrong, only two people can fire the Governor – the Premier (who was just appointed by the Governor) or the Queen (probably on the advice of the Premier). The courts cannot get involved in an inherently political matter. The people cannot vote out an unelected official, nor demand another vote for the Premiership. The Queen herself has shown little desire to fire her representatives in Australia contrary to the advice of the Premier/Prime Minister (to my knowledge, it has never happened). The Parliament had requested she fire the Governor-General during the Whitlam dismissal, but she declined. It’s hard to imagine her taking orders from anyone aside from the appointed Premier in this much more Republican climate. The only deviation from the Governor’s choice for Premier were if the Greens were to turn around after his appointment and declare their support for the Opposition to form government.

So then, given that scenario, what would you do if you were a Green? As I have argued, forming a coalition and becoming part of executive government is a double-edged sword that is perhaps too sharp to handle. You can do one step short of that however – just write a letter to the Governor, advising him that you will support the Labor or Liberal Party in passing the Supply Bill. The Governor is then obligated to appoint that party as Government, you won’t sully your hands with power, and you still maintain the balance of power. A far more appealing option is to wait for the Governor to appoint a Premier, then wait for the first contentious legislation to pop up and then declare your support for the Opposition. You can wait several years for the right legislation to pop up – perhaps a bill banning gay marriage, or cutting down trees – something you know your base will love. It’s the perfect way to keep your grasp on power, whilst not being sullied by the sausage-making that you will inevitably be involved in. Just white-wash your crimes with a Messianic crusade against [evil conservative bill]!

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