April 8

Tasmania: proposal to remove crucial vice regal power

A proposal that lower houses of parliament elect prime ministers and premiers may seem sensible. It would remove an important power vested in the Crown. (Antony Green, “Why should governors appoint premiers?” ABC: The Drum, 7 April, 2010.)  But the  consequence would be to remove an important protection to prevent the abuse of power, one which is an intrinsic part of the Westminster system.

This proposal is being made in the light of the current and exceptional situation in Tasmania where no party has a majority in the newly elected House of Assembly.  If the Premier resigns, the Governor will no doubt commission a new Premier. In the event of the House expressing a lack of confidence in the Premier, he must then resign and may offer advice to the Governor on the next step.


…Tasmania not "in limbo"…

The Governor would not be bound to accept that advice. Much is being made of the fact that the Governor did not immediately accept the outgoing Labor Premier Mr. Bartlett's advice to invite Liberal leader Mr. Hodgman to form a government on Wednesday 7 April. Government House said the Governor was "in a position at this stage to make a decision" and it would be inappropriate for him to make a comment.

According to Matt Denholm in The Australian, “ Tasmanian governor stalls on new premier” 8 April, 2010 , it was unclear on Wednesday evening whether the Governor, Peter  Underwood, was taking time to fully analyse the situation and possibly take detailed legal advice — or whether he was giving Mr Hodgman time to approach the Greens for a commitment of support.

…no running commentary…

Mr. Denholm points out that the Governor, a former state chief justice, must make a decision within seven days of yesterday's declaration of the poll.  

But he is under no obligation to give a running commentary, indeed it would be undesirable for him to do so.  Tasmania is certainly not “in limbo” as some are claiming.

Sky News reported on 8 April that the Greens have now decided to support Labor ( see postscript, below) . The situation is volatile and the Governor was wise not to rush in.

As to the rather facile proposal to remove this function from the Governor, State constitutions are usually relatively easy to amend. But the Federal Constitution would require the approval of the people in a referendum.

In the debate on such a proposal the point would be made – and not only by ACM –  that such a provision would make the dismissal of a prime minister or premier behaving illegally or unconstitutionally difficult, if not impossible. 

…case study: 1975….

In 1975, a dismissed Mr. Whitlam would probably have been re-elected by the House.

The only serious debate about Sir John Kerr’s action is not about the power to dismiss. If it were, the Hawke government would surely have proposed an amendment to remove the power. It did not.

The only debate is about the timing of Sir John’s action and whether he should have given Mr. Whitlam notice. The timing was resulted from Mr. Whitlam’s action in advising a half Senate election on 11 November 1975. The Governor-General believed this would not have solved the problem as the new senators would not have sat until 1 July, 1976.

As I understand it, David Marr argues that Sir John’s action was peremptory as supply had not run out. But Mr. Whitlam had already tried to borrow funds to circumvent the delay in approving the Supply bills.

He did not give notice that absent advice to call a general election, he would dismiss M. Whitlam because believed the Prime Minister would have advised The Queen to remove him, thus involving her.

Whether she accepted the advice immediately, asked for more information or rejected it, she would have been accused of being partisan. (No one knows how The Queen would have acted. On an earlier occasion, the Sovereign did not act immediately, suggesting the vice regal officer be allowed to resign with dignity. This took several months.)  

There would be few people who would say the power to dismiss should be removed, which would be the consequence of this proposal.

….ACT example…

Acknowledging such a change would be difficult to achieve, Mr. Green says this could be left until the question of a republic re-emerges. I doubt that. Those who campaign for a politicians’ republic argued in 1999 that the model would change nothing other than removing the Crown. Conservative republicans would take the same position in any renewed debate.

Mr. Green makes much of the Australian Capital Territory arrangements under which the Legislative Assembly elects the Chief Minister.

The ACT is a bad example. The financial excesses of the Carnell government in relation to the Bruce Stadium would not have occurred if the constitutional system forced on the people of the Territory against their wishes had properly respected the essence of the Westminster system.

  

A reasonably diligent administrator or governor would have sent that one back. And if the Carnell government had persisted it would have faced the fate of the Lang and Whitlam governments.

…changing Westminster?…
   

We should be wary of proposals to change the Westminster system. The promised consequence of fixed four year terms was to be a significant improvement in the quality of governance. Few Australians would say this has been delivered; indeed many would say there has been a decline. We should be wary of a proposal which will undoubtedly remove a significant check and balance on the politicians.

 

An earlier Lieutenant Governor's admonition to the indigenous people on the rule of law follows as well as a report on the Governor of Tasmania considering the appointment of a Premier after the election in Tasmania.

 

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….Postscript…

 

 

 

The report from Sky News TV concerning the changed position of the Greens follows:

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