Why I Don't Support Fixed Four Year Terms For Tasmania

This is part of my 2024 Tasmanian state election coverage (link to main page here including link to effective voting advice), but is also a standalone article.

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The last two Tasmanian Parliaments have ended early.  The 2018-2021 parliament ended ten months early after independent-minded Liberal Sue Hickey was disendorsed and quit the party, and then-Premier Peter Gutwein argued the loss of the Liberals' majority meant an election was desirable.  The 2021-2024 parliament has ended thirteen and a half months early following trouble for the Rockliff Government with two backbenchers who moved to the crossbench in May 2022.  Tasmania is the only state that has not moved to fixed-term elections, but there had not been a seriously early election before these two since 1998, and there is a widespread lack of understanding about the historic conventions under which the Governor considers requests for an early election.   (A note that Tasmania's upper house does have fixed terms, but with elections on a rotating basis.)

I covered many of the misconceptions about calling an early election in 2021, and 2024 has seen a lower-level repeat of many of the same incorrect claims.  A Premier who holds the confidence of the House based on votes that have been cast on the floor - whether or not that looks likely to remain the case - is well entitled by precedent to be granted an early election in order to seek a fresh mandate based on newly arising issues or policies, because the workability of the Parliament is in question or for many other reasons.  It is not even clear that a Premier who is well into their term needs much of a reason at all.  The spurious idea that the Premier should test their support on the Parliament's floor before seeking an election has also been doing the rounds again - this confuses what happens at the start of a Parliament to the end.  

Together with this I'm starting to see a few calls to make early elections less likely by moving to fixed four year terms, a position that has been floated several times in the past, and I've been asked what I think about this.  The Field Government introduced a fixed-terms Bill in 1990 but it never got past the second reading stage.  In 1992 the then Groom Government passed a fixed-term Act for just their first term in office (it lapsed thereafter).  In 2008 there was at one stage in principle agreement from Labor, Liberal and the Greens to move to fixed terms, but there was soon a change of Premier from Paul Lennon to David Bartlett and the then Labor government never introduced the foreshadowed legislation.  (The Liberals introduced Bills in 2006 and 2008 and the Greens in 2005 and 2008).  

In my view, Tasmania should not move to fixed terms for the Assembly and the circumstances under which the last two elections were called - especially the most recent - show exactly why we should not.

The advantages of fixed terms are obvious enough.  The dates of elections are known years in advance, barring exceptional cases. This is good for business and investor planning and also good for those of us who work on elections and have to plan our lives around them.  Fixed terms also mean that a Premier does not have the advantage of being able to call an election at an opportune time in the term (for instance while benefiting from a crisis, or while the Opposition is in disarray).  And fixed terms mean that it's easier to manage the implementation of laws that require a leadup (like the government's electoral law amendments passed late last year), and also to manage the committee processes of Parliament.  It's also easier for MPs to arrange their constituency affairs, and it reduces the potential for Governors to have to exercise discretion.

Given these substantial advantages, why would I not support fixed terms for Tasmania?  The main reason that I do not support them is that I am concerned that fixed terms would lumber Tasmania with parliaments that lack a mandate for what they are doing, because of defections.  I think this matters far more than any of the advantages, because democracy is the ultimate value and the other factors are side-benefits.  If a Parliament has ceased to reflect the last election and the Premier wishes to seek a new mandate, I say let the people decide.  

The situation that developed prior to the calling of the current election is a case in point.  Ex-Liberal independents John Tucker and Lara Alexander had made explicit threats and very ambiguous comments, respectively, concerning whether the government would retain their confidence under certain circumstances.  However, no no confidence motion had been passed, and Tucker's threats had been withdrawn (albeit following a meeting with disputed outcomes).  The Liberal Party had been elected in majority with candidates running on a platform to which majority government was crucial.  But because of the defections, the parliament had ceased to represent the will of the electors - those who voted for or gave critical preferences to John Tucker or Lara Alexander would mostly not have done so if they had known that these candidates would defect if elected.  

Supposing that Tasmania had had fixed term laws, what escape would have been possible from the charade of this parliament with its balance of power altered by defections?  If the independents continued playing no-confidence chicken but never actually brought down the government, it would simply have to continue in a chamber that passed votes against the originally elected government's wishes  - unless a Labor government took over.  A Labor government would have been doubly illegitimate in terms of Labor having also run on a theme of avoiding minority government in 2021.  

To the extent that fixed term laws might have allowed an escape hatch (like the government voting no confidence in itself, or the parliament passing a law to allow an election anyway) it would have been a similar purpose-defeating farce to the UK Fixed Term Parliaments Act.  Supposed five year fixed terms in the UK were avoided by a parliamentary vote after two years in 2017, and then by a new Bill passable by simple majority in 2019; the Act was later rescinded. 

Another important Tasmanian example was the 1956 defection of Carrol Bramich.  At the time Tasmania had 30 seats and there was a requirement that in the case of a 15-15 result the party with the lower popular vote would provide the Speaker enabling the popular vote winner (in that case Labor) to govern.  Bramich defected from Labor to the Liberals giving the Liberals a 16-14 majority in the parliament and a 15-14 floor majority.  The Liberals passed a censure motion against the government.  Premier Cosgrove was able to obtain a dissolution based on a Liberal government being not what voters had wanted at the previous election.  Under any of the fixed-term parliament models I have seen the Bramich defection would have resulted in a Liberal government that the voters had not supported governing without any mandate for three and a half years of the government's then five-year term.  

The Tasmanian commentariat includes a fairly large groupthink-prone faction, mostly left-leaning, that I call Hung Parliament Club, which considers minority government to be both unproblematically good and perpetually likely.  (In contrast, I think that past minority governments in Tasmania have had both good and bad points and that there is no simple overall answer to which form of government is best for the state.)  Hung Parliament Club types hold that when a Premier who is having issues with the Parliament requests an early election, the Premier is trampling on the will of the Parliament which should be supreme.  But the Parliament should only be supreme to the extent that it remains a reflection of the voice of the voters.  An illegitimate balance of numbers created through defections is a rogue Parliament that has nothing to do with representative democracy in a system that in practice strongly features party endorsements and party-based policy campaigning.  

Whatever his reasons for doing it, Jeremy Rockliff's decision to put what was becoming a significantly rogue Parliament out of its misery so the voters could decide the Parliament's future was correct and good for democracy.  If (as polling strongly suggests if anywhere near accurate) the voters now give neither major party a majority, that will be a genuine minority parliament that has been chosen by the people.  It puzzles me that many of those who argue that "power sharing parliaments" are more democratic would go in to bat for the parliament of the last several months, which does not reflect the democratic will of the voters of 2021 that there be a majority Liberal government.  (I add that in any other state that will of the voters would have resulted in a massive Liberal majority, and that there is no evidence that the lopsided 2021 result had anything to do with bandwagon effects.)  

Even if there had not been defections to the crossbench, an early election would still have had some merit in this very particular case.  The Liberal Government's re-election campaign in 2021 was strongly centred around the image of one of Australia's most popular Premiers of all time and his government's responses to a public health emergency (and yes it was an emergency even if the same party now preselects at least one candidate who claims otherwise).  Come 2024 the Premier is different and the issues mix is different, in particular the contentious Macquarie Point stadium proposal.  I think it would have been reasonable for the Premier in this situation to seek a mandate for himself and his new policies.

It's probably no accident that those who support fixed-term parliaments tend to support Greens or left/centre independents (and I say this as one who has voted for plenty of the latter and from time to time the former).  The harder it is for a minority government to obtain a new election when it finds the parliament insufferable, the more power the crossbench has.  

Other States Are Different

Yes, other states all have fixed terms - and it's a nuisance as well as an advantage sometimes because federal governments can have their options limited by the fixed timing of state elections, and close federal and state elections sometimes affect voter understanding and the informal voting rate.  However, there are significant differences between Tasmania and the other states in terms of the strength of the arguments for fixed terms. While these differences were probably not that relevant to how the other states got fixed terms in the first place, I think they're very relevant to why Tasmania shouldn't have them.  

Firstly, all the other states have single-seat electoral systems and larger parliaments.  While results where a single MP defecting could change the government do happen in other states, they are relatively rare.  In contrast, there have been seven cases in the past 18 Tasmanian elections in which either the very formation of government or the support that the government relied upon, was determined by a single seat.  (In 1996 for instance one more Liberal seat would have given Bruce Goodluck a share of the balance of power with the Greens.)  There have been only a few governments in this time that could have survived a two-MP defection with their numbers and structure intact.  

Then, there are the different structures of the upper houses.  In four states, state elections habitually coincide with upper house elections (for half the upper house in NSW and SA and the whole in Victoria and WA).  In Queensland (and also in the Territories, although the ACT shares Tasmania's electoral system) there is no upper house.  The advantage for incumbents in calling early elections at the right time in all these states would be much greater because far more control over each state's legislative process is at stake.  In Tasmania, the calling of an early election has no effect on the upper house, so if a government does have to go at an opportune time and voters judge its decision to do so too kindly, there is still the upper chamber to review its efforts.  And I also think the opportunistic-timing advantage argument is overrated anyway.  Voters around the country quite often threw out governments that went early without any sensible reason.  If a government goes early and is re-elected strongly in spite of voter suspicion of early elections, I say good luck to it.  

Party-Hopping Laws Are Not The Answer

In response to my view that defections are a critical reason not to have fixed terms I am sometimes told that we should have fixed terms but ban defections via laws that entail that anyone who quits their party loses their seat.  New Zealand's on and off waka-jumping laws are often cited as an example.  I believe that party-hopping laws, depending on how they are written, would be either too useless or too dangerous in our system.  The key issue for such laws is whether or not they permit a rebel MP who wishes to notionally remain within their party to be kicked out of the parliament if they are expelled from their party.  If the answer is no, then there is nothing to stop a rebel MP from, for instance, claiming to be still a Liberal while continuing to vote against a Liberal government on legislation or even confidence and supply.  If the answer is yes then parties develop supreme power over their own incumbents' careers, which is grossly inappropriate in a state where voters choose which candidates will represent the parties that they vote for.  A party machine that did not like an individual MP who belonged to a party could expel them from the party, causing them to lose their seat, which the party would get back on a recount.  

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There is a separate debate regarding fixed terms for federal parliament that I may cover in a separate article should a serious proposal develop.  There is currently more debate about four-year federal terms, to which I'm totally opposed if they result in eight-year Senate terms.  I am also cautious about the proposal last rejected in 1988 (four-year unfixed terms with every election a double dissolution) though I think I'd be less so if the malapportionment of the Senate could ever be fixed.  I completely reject the Prime Minister's claim that the defeat in 1988 was caused by "misinformation" (of course there was some as there always is, but there were weighty arguments against it too in terms of it being a power grab by the lower house that would alter the balance of our system.)