A constitutional law expert has urged the Tasmanian Governor not to look behind advice he is given following the state election, according to the ABC (“Governor urged to stay out of politics,” 23 March)  This is tantamount to telling the Governor not to do his duty.

The decision on the commissioning of a Premier  in unclear situations brings into play the reserve powers. The convention is that the outgoing Premier continues in office until Parliament meets. If he resigns, the Governor will listen to his advice but is not bound by that advice. He may ask him to continue as caretaker. If he refuses, or the Governor decides not to appoint him, the Governor can decide how he will proceed.

…1941 : the Governor-General ensured stable government…

In 1941, the Governor-General Lord Gowrie called in the independents who had brought down the UAP- Country Party Coalition led by Robert Gordon Menzies. With an impressive  military and vice-regal record, and willing to continue in office during the war, Lord Gowrie knew what to do.  He sought an assurance that if he called on Labor’s John Curtin to form a government, they would support him.  They agreed.

Gowrie did not enter politics; he gave leadership beyond politics as only a viceroy can. 

Doing this was and is an intrinsic part of the function of the Crown in ensuring that The King’s or The Queen’s government continues.

…the Tasmanian situation…

  

In Tasmania it is likely that no party will gain a majority with 10 seats each for Labor and the Liberals and five for the Greens, and two seats in doubt. This will be what is called a ‘hung’ parliament, which is rare in our country but common in continental countries. Conventions have been developed in all – in many countries The King appoints an informateur to gain information and then a formateur to bring the parties into a coalition.

Hung parliaments now arise in New Zealand because of the adoption of the continental MMP election system. At a recent conference in New Zealand, the Summer Sounds Symposium, I took the liberty in my address of suggesting they restore the upper house and choose an electoral system for the lower house which will normally result in one party or coalition obtaining a majority.

…an alternative view…

Michael Stokes from the University of Tasmania says once the result is finalised it will be up to the Parliament to test any deals or arrangements made between parties, and not the Governor.

He believes the Governor should not ask for any formal evidence of any deals and should remain at arm’s length from the process."If he says that, in my opinion, because the Governor acts on advice, that's political advice and the Governor really should accept that and shouldn't go behind that to make enquires say with the Greens to see if they are in agreement," he said."Because the Governor should try and avoid making his own political decisions and it really is a very political question."