The Governor's Role In The 2021 Tasmanian Election

The 2021 Tasmanian election campaign (link to main guide) has seen various claims about the role of the Governor Kate Warner, both in calling the election and in resolving the aftermath should the election produce a hung parliament.  Not only are these claims incorrect, but some of them (concerning the calling of the election) are both unfair to the soon-to-retire Governor Warner and by implication anti-democratic.  

Calling the election

The first set of claims that have circulated concerns the Governor's role in calling the election.  The claims being made fall into two groups:

1. That the Governor may have made a mistake in accepting Premier Gutwein's advice to dissolve the Parliament and hold an election.

2. That the Governor made the correct decision, but that she must have relied on false or misleading advice from the Premier in so doing, and would otherwise have not called the election.

I first saw claims of type 1 in an April 2 op ed by Charles Wooley  (paywalled, and need to scroll down).  It's far from being the only thing I disagree with in that article:

" As an Australian Republican I am not in the champagne and canape set so I cannot tell you why Governor Kate Warner granted the Premier’s request for an election rather than sending him back to Parliament to test his support (or lack of) on the floor of the Lower House.

Given so many vital political loose ends, among them unintroduced legislation to control financial contributions to political parties, plus the yet to be clarified pokie tax, you could have thought the Gov might want to know just a little bit more before granting the Premier’s wish."

The two paragraphs above are riddled with misconceptions.  Firstly, the Governor had no reason to establish whether the Premier had the confidence of the House, as there was no reason to believe that he had lost it.  Rather, his party had lost its majority.  The suggestion that she should have sent him back to Parliament confuses the Governor's role straight after an election with the Governor's role at other times.  From time to time a Premier might lose their majority at an election and ask to be reappointed in order to "meet the Parliament" and allow it to make a decision on confidence.  Sometimes this is done just to force a crossbencher to nail their colours to the mast on the floor of the House, but in some cases despite the appearance of a deal with the Opposition, the crossbenchers could change their mind.  Robin Gray in 1989 and Don Dunstan (SA) in 1968 chose to "meet the Parliament" in this way. Both lost votes of confidence on doing so and then resigned.  

At other times, the Premier normally remains the Governor's advisor until they resign, lose confidence, or are dismissed for extraordinary reasons (sometimes involving inability to obtain supply).  Advice to call an early election might be ignored if the Premier seemed to be in the process of losing confidence (eg Joh Bjelke-Petersen after being removed as party leader, or Malcolm Turnbull had he gone to the Governor-General in the middle of a leadership fight), but in this case the Premier had the clear confidence of 14 of the 25 members of the House. 

The criticism here may have mistaken what Premier Gutwein was saying about "confidence".  When he has used the term "confidence" in the context of a supposed minority government that might have continued with support from independents, he has been making claims about business, investor and public confidence, not the confidence of the House.  These claims are very debatable because (i) there is no evidence a minority government supported by Madeleine Ogilvie at least would have been as turbulent as one supported by the Greens (ii) Ogilvie may well have joined the Liberal Party to recover its majority anyway (as she did once the election was called).  Nonetheless, they were not about the confidence of the Assembly.  

This criticism secondly assumes that the Governor was advised of and/or critically depended on all the same justifications that Premier Gutwein has been giving publicly.  The critics think that Gutwein's public comments about falling into minority were misleading, an issue I discuss further in the dates section of my main election guide.  We do not actually know what reasons the Premier gave to the Governor in requesting an early election - he may have given more reasons, different reasons, fewer reasons, no reasons at all (although the last seems unlikely).  The difference between what the Premier says publicly and to the Governor was stressed after the 2010 election. Will Hodgman tried to convince the Governor to appoint him Premier in minority, claiming that Labor would support this arrangement based on various things said by then Premier David Bartlett on the campaign trail and after the election (including Bartlett saying Hodgman should be given the first opportunity to attempt to form a government).  Then Governor Underwood took the view that even if he could draw that conclusion from Bartlett's public statements, what Bartlett had advised him personally via letter was different to the conclusion he was being asked to draw and would override it.

Greg Barns (The Mercury, April 19, may not be online) says a letter from Sue Hickey promising confidence and supply was sent by Hickey to the Governor but not received before the Premier called the election, and raises the question of whether Gutwein informed the Governor that Hickey had clearly stated her support on confidence and supply, or for whatever reason did not do so.  Assuming the Governor was unaware, she still had no reason to believe or even suspect that the Government had lost confidence on the floor of the House.  Had it done so this would have been demonstrated on the floor of the Parliament that week, for instance by the Parliament taking control of the business of the House and preventing the Government from adjourning at times of its choosing.  (The importance of this was demonstrated in 1956 when the then Labor Government was able to secure a new election despite a defection that had given the Liberals an outright majority of the parliament. Because the Government had been able to obtain an adjournment, it was in a much stronger position to advise the Governor that a fresh election should be called.)  If the Governor did have any concrete reason to doubt that Gutwein still had confidence, then she could have rejected the early election request until the matter was clarified, and then accepted it once it was.  However no such reason existed.  

The criticism thirdly ignores that Tasmania does not have fixed-term parliaments.  It is the last state left that doesn't.  Whether it should is another story.  Given that the state has not passed fixed-term parliament laws or referendums while other states have done so, Tasmanian Premiers remain at liberty to advise early elections, as do Prime Ministers - it just hasn't happened for a while, with the last three governments going four years and the one before it nearly so.  An election ten months early is unusual but far from unprecedented.  Doug Lowe, governing with a one-seat majority, requested and was granted a dissolution in 1979, just over two and a half years into a four year term.  He won a massive victory.  Robin Gray requested and was granted an early dissolution in 1989, eight and half months short of a full term, but was defeated by one seat.  Federally, Bob Hawke was granted a requested dissolution in 1984, less than two years into his first three-year term.  It would have been extremely inconsistent with precedent for the Governor to refuse Gutwein's request, whatever reasons Gutwein gave for it.

If a Governor did refuse an early election requested by a Premier who had the confidence of the House, the Premier could respond to the refusal by resigning.  Provided the Government stood with such a Premier, the Governor would be unable to appoint any alternative Premier who would have the confidence of the House, forcing an election anyway and most likely forcing the Governor to resign as well.  (Victorian Premier Albert Dunstan in 1940 explicitly advised the Governor that refusing a proposed early election could hence lead to the Governor "having to support an embarrassing responsibility".)  There are some views about that the Governor should refuse an election requested by a Premier who holds the confidence of the House if the election is requested extremely early (like, say, in the first 12 or 18 months), but even this is disputed.  See, eg,  Chapter 5 of Twomey's The Veiled Sceptre for many examples of arguments that a Premier with clear confidence of the House will be granted a dissolution on request in almost all circumstances.  

The criticism fourthly seeks that the unelected Governor should become involved in politics, and should judge whether or not the Government's request for an early election should be accepted based on a "have you done your homework?" type wishlist arbitrarily declared by the critic (in this case electoral donations law and poker machine taxes).  A different critic could arbitrarily declare a different checklist and get a different result.  Rather, in a system that does not have fixed terms, a government that calls an early election is accountable to the people.  If enough voters who voted for this government before think it should not have called this election and that it deserves to be thrown out for doing so, they will make that decision known at the ballot box.  This is the risk of calling an early election.  

Yes, I'm using a sledgehammer to crack a walnut again (Woolley's comments being short and somewhat flippant in their tone), but it's necessary, because this nonsense has been seen elsewhere and is clearly doing the rounds of Hung Parliament Club, the large section of the Tasmanian commentariat that believes hung parliaments are both uncontroversially wonderful and perpetually likely.  And likewise, those on social media who continually call for the Governors-General to sack Prime Ministers over political issues that do not even raise any issue of confidence or supply ought to cut it out.  What I find remarkable about these people is that I have never even seen one of them argue that Sir John Kerr was right to sack Gough Whitlam during a supply crisis. Yet when it's a government that they do not like in power, suddenly an unelected, unaccountable official intervening in politics to randomly sack Prime Ministers becomes a good idea.   It's especially bonkers that so much of this stuff comes from republicans.  

(The Mercury has reported Sue Hickey as expressing similar views to Woolley's, but the article does not quote what she said on the subject.)

After the election: minority scenario

As governments do in Tasmania, the Gutwein Government has continued to claim that only it can win a majority and that if it doesn't voters will get a minority government run by Labor and the Greens.  Recently they've added "and Independents" to the mix.  A Liberal claim that "To avoid a Labor-Green-Independent minority Government, you must vote for your local Liberal candidates" has been criticised on Twitter with some suggestions (I'm not convinced) that truth-in-political-advertising laws would prohibit such claims if we had them.  

At this stage, who would govern in the hypothetical case of no party winning a majority isn't clear, so the Liberals' scare tactic appears speculative.  Premier Gutwein has said he will resign if he does not win a majority, but this could lead to a different Liberal accepting the party leadership and becoming Premier, assuming an independent and/or the Greens were willing to support that.  Alternatively, in theory all of Labor and whatever Greens and/or independents were elected might form a government together.  Rebecca White has explicitly said Labor won't "work with The Greens" and that she won't lead a minority government.  However, it is also possible for White to resign and be replaced by someone else who might be willing to take government, should the party want to do that.  Looking at the policy positions of the two independents most likely to be elected (Kristy Johnston and Sue Hickey), I suspect both would work more naturally with Labor - especially in Hickey's case given the bad blood between her and the Liberals - but whether Labor wants to be worked with is another question.  If there is a hung parliament and Labor refuses to take government despite having the option to, then the Liberals would most likely govern.  How stable that would be would probably depend on how much ground (if any) they were willing to give to the crossbench's requests.

Anyway Greens Leader Cassy O'Connor tweeted that "If no party has a majority, the Governor will *first* require the Premier of the day to test his numbers on the floor of the House."  This again goes to the business of "meeting the Parliament" referred to in the Gray, Don Dunstan and Bartlett examples above.  The Governor needs to appoint a Premier and has a deadline for doing so, seven days after the return of the writ.  The Premier has the right by convention to be recommissioned pending any vote of no confidence by the House.  But they do not have to exercise that right.  They can resign and recommend that the Governor appoint someone else, as Ray Groom did in 1996, resulting in the appointment of Tony Rundle as the Premier who was sent back to the Parliament.  They can resign and recommend explicitly that the Governor appoint the Opposition Leader, who might then be appointed if willing and in some position to form government.  

Here the confusion probably arises because of what happened in 2010.  Bartlett initially advised the Governor to give Hodgman the first opportunity to convince the Governor that Hodgman could form government.  This situation arose because of noises made before the election regarding which party won the most primary votes, a foolish yardstick to employ in a three-cornered preferential contest.  Hodgman made no attempt to deal with the Greens, and could not convince the Governor that Labor would support him.  The Governor then recommissioned Bartlett in order to move the issue of confidence into the House for it to settle, but only on account of having not been convinced that he should appoint Hodgman instead.  He also considered whether he could appoint Greens Leader Nick McKim, and decided otherwise.  In the end there was no other option and Bartlett wasn't clearly unwilling.  The recommissioning of the existing Premier is not automatic if the Premier does not want it to be.  Aspects of Governor Underwood's reasoning have, by the way, been strongly criticised by Twomey, especially the Governor's unsourced claim that Bartlett had a "constitutional obligation" to accept his recommissioning.   

(Richard Herr in an op ed in The Mercury 30 March (not online) suggested that the requirement to appoint a Premier within seven days of the return of the writ - apparently a drafting error - obliged the Governor to recommission Gray in 1989 despite him lacking a majority.  In fact Gray wanted to be recommissioned to meet the Parliament and would have been recommissioned by convention whether that deadline existed or not. Also, while the op ed states that "the premier resigned in the face of certain defeat", Gray was defeated by the amending of the Address in Reply to include a clear statement of no confidence, and then resigned.)

In theory a situation might arise in which neither party was willing to govern in minority and anyone who the Governor might ask to be Premier would refuse.  If that ever happened there would be no alternative but a second election, with a caretaker Premier appointed in the meantime.  However, it's hard to see a government that loses its majority going to another election immediately to try to get it back, as this would be treated with derision and could result in the Opposition winning.  More probably, if Labor is able to form government but refuses, the Government will be left in office in minority as in 1996.

This section may well all be idle speculation should the Government win a majority again, which remains widely expected in spite of one commissioned robopoll claiming otherwise.  But sometime there will be a minority parliament again, maybe not this election but perhaps the next one or the one after.  Government in Tasmania has never switched from an intact majority of one party to a majority of the other at an election.  The major parties can only keep playing chicken with the minority government truck for so long.  

Update (16 May): I had not seen it when I wrote this article, but it appears that the nonsense about whether or not Gutwein had the confidence of the House actually commenced on March 30 with Labor, a few days prior to Charles Woolley's article:

"PREMIER Peter Gutwein may have misled Governor Kate Warner when he asked her to call an election by claiming he was in a minority government, Labor says.

[..]

But Labor MLC Sarah Lovell said Mr Gutwein had not faced a motion of no confidence that might have unseated his government — and would have won one easily at any rate.

“The reason that he has given in terms of wanting to avoid being in a minority government is based on a mistruth,” she said.

“He’s had Sue Hickey, who has publicly and privately assured him that she would continue to offer confidence and supply, and he also had Madeleine Ogilvie, who was clearly lining up to join the Liberal Party.

“His majority would have actually been stronger than it was when he was elected in 2018 at the last state election.”

The Labor claims here blatantly confuse having a majority on confidence and supply with being in a majority government.  At the time the Premier went to see the Governor it is true that he had a majority on confidence and supply and it is also true (however artificial the situation, and it was very artificial indeed) that he was not in majority government.