Legal puzzle behind scare tactics

Sometime during the next six months Tasmanians will go to the polls to elect a new House of Assembly.

However, this is not what the two major parties want the voters to believe they will be doing.

The parties have managed to develop a shared assumption among voters and the media that the real purpose of the ballot is to elect a government.

The Hare-Clark electoral system, however, guarantees that the Parliament cannot be overlooked entirely.

Tasmania’s system of proportional representation has resulted in non-majority government on average in one out of every three elections since it was adopted in 1907.

Since a political party needs to control a majority of seats in the House of Assembly to be certain of forming a government, our electoral history is replete with postballot executive uncertainty.

For some time, Tasmanian opinion polls have suggested no party is likely to secure majority support in its own right in 2018. Consequently, the two major parties are already putting out warnings against the instability of minority government.

While these campaign scare tactics have become fairly predictable as a feature of Tasmanian elections, they are a more recent development than you might think.

Until 1977, the risk of minority government and the resolution of any post-election uncertainty was less evident prior to the election and significantly less urgent afterwards. There was no particular urgency before 1977 because Tasmania operated within the Westminster conventions that provided a ministry remained in place after an election until a new administration could be formed.

These conventions, still observed by all national and state parliaments in Australia, ensure there is stable and reliable transfer of authority from one government to another.

What was so important about 1977 that changed the nature of Tasmania’s electoral rhetoric to make managing a minority outcome a key campaign issue?

Sadly, the reason was a reaffirmation of Otto von Bismarck’s warning that lawmaking was like sausagemaking; you would not accept either one if you knew how they were made.

There is absolutely nothing to suggest that the legislative change in 1975 and the attempt to repair it in 1977 should improve public confidence in their laws or their law-makers.

Lacking a Hansard at the time, the full story is cloaked behind a veil of half remembered events and some fragmentary documents.

The story begins in 1975 when the Ministers of the Crown Act 1923 was amended to change numbers and salaries of the ministry.

Inexplicably, it provided that “if a member appointed as provided by this section ceases to be a member, he shall cease to be a Minister of the Crown.”

As we had no Hansard to record the debate we really cannot know all the ingredients that went into making this legislative sausage. More importantly for public confidence in our lawmakers, it is almost beyond comprehension that the legislators of the day failed to understand what this provision meant. The effects of the dissolution of Parliament is that ... well, it is dissolved; it does not have any members — backbencher or minister.

A judge pointed this out when later a regulation under the Poisons Act was appealed and he found the “minister” had acted without authority because the minister apparently had not been recommissioned after an election. Hastily, all too hastily, the Government rushed to correct the error it had made by amending the Tasmanian Constitution Act 1934. Section 8B (3) was added to provide that a minister “may continue in the office ... until the expiration of the period of seven days following the day of the return of the writs.” Again, without a Hansard, the original purpose is shrouded in the mists of time but it was clearly unwise and unwarranted in 1977 and events since have realised its potential for partisan mischief.

The 2010 election campaign was particularly egregious as both major parties attempted to use the Governor in wedge politics by

saying they would not govern in minority. Their desperation reached a level that both major parties committed lesemajeste of a sort by daring the other side to make explicit the advice it would give the Governor in the event of a hung parliament.

This cavalier and disrespectful attitude to the Queen’s representative would not have been contemplated had the Queen herself been resident in the Domain.

It would not even have been possible but for Section 8B (3). As we have seen in 1989 and 2010 particularly, the Governor has no choice but to make a decision on commissioning a government without the benefit of knowing how the forces in the Parliament will line up.

This situation is an embarrassment and the political parties ought to be ashamed of trying to exploit it.

The Section is the result of a stuff-up and it serves no democratic purpose. Let’s return to constitutional propriety, join every other jurisdiction in Australia and remove Section 8B (3) from the Constitution Act.

Then perhaps we can get on with other necessary constitutional reforms such as restoring the Parliament to a workable size. Richard Herr is the academic coordinator of Parliamentary Law, Practice and Procedure Course, at the University of Tasmania’s Faculty of Law.

This cavalier and disrespectful attitude ... would not have been contemplated had the Queen herself been resident in the Domain.