Most Australians, and indeed many Tasmanians, will be confused by the constitutional imbroglio that surrounds the appointment of a new Tasmanian premier.

Two weeks ago Tasmanian voters delivered their verdict on the Bartlett Labor government by electing a deadlocked House of Assembly. Both the Labor Party and Liberal Party have 10 elected members, the balance of power held by five Greens MPs.

The parliamentary dead heat has been produced by Tasmania’s use of the semi-proportional Hare-Clark electoral system, but the odd custom of the Governor appointing the premier has nothing to do with the electoral system.

It is in fact a manifestation of the system of constitutional monarchy by which Australians are governed. What’s happening in Tasmania could easily be repeated in Canberra and in every other state capital were a similarly divided parliament elected.

The only place in Australia where the current impasse would not occur is the Australian Capital Territory, where the self-government regulations have moved away from the conventions of constitutional monarchy and specify that the Legislative Assembly elects the chief minister.

However, the introduction of fixed parliamentary terms in New South Wales, Victoria, South Australia and the Northern Territory has seen the introduction of mid-term ‘baton-change’ procedures. These allow for the parliament to play a role in the formation of a new government should the parliamentary numbers change during the course of a fixed term.

Baton-change procedures effectively force a form of positive vote of no confidence on to parliaments where the defeat of one government must be followed by some expression of confidence to the Governor on the formation of a new government.

If the ACT can adopt procedures to elect a chief minister, and if we have moved down the path of parliament expressing confidence in the formation of new governments mid-term, the question has to be asked why it is beyond the wit of politicians and constitutional lawyers to come up with a set of procedures that would allow new parliaments to elect the head of government.

Wouldn’t this be better than the current shadow play of party leaders being invited down to government house for a quiet chat?

Governors appointing premiers is the point in politics where the public’s understanding of democracy runs into the reality of Australia being a constitutional monarchy modelled on the United Kingdom’s parliament in Westminster.

How governments are formed lies in the realm of unwritten constitutional law, one of a series of established conventions about the formation and continuation of government within a system of constitutional monarchy.

Most Australians know we don’t elect premiers and prime ministers. Australians know they elect a local representative to parliament, and somehow out of that process a government is formed. But I would think the vast majority of Australians believe there is some sort of vote in parliament by which a government is formed. As I pointed out above, this is only true in the ACT.

Let me explain what really happens in vague constitutional language. In a system of constitutional monarchy, you do not have government, you do not have cabinet, what you have is a system where the Crown has advisers. The Crown appoints advisers, but those advisers must have the confidence of the lower house of parliament.

Once the Crown has appointed advisers, the lower house of parliament may express want of confidence in the advisers, and the Crown may act to appoint new advisers who have the confidence of the parliament. If it is not possible to finds advisers with the necessary confidence, than an election is normally called to resolve the impasse.

How much easier would it be for constitutions to specify that a parliament must elect a premier after every election and whenever the office falls vacant? Already every Australian constitution includes a provision for the election of a speaker after every election and whenever the speaker’s chair is vacant. In fact, the vote on the speaker has often become the de-facto method for a Governor to determine who has the confidence of the parliament.

There is nothing to stop a similar provision being included for an election of head of government. This is what Australian governments have written into the constitutional arrangements of the ACT and Papua New Guinea, and also partly applies with the states’ baton-change procedures. Something similar occurs with the election of chancellor in the German parliament.

Surely this would be better than what is going on in Tasmania, with the Labor and Liberal Parties engaging in obscure constitutional shadow boxing, refusing to talk to the Greens, while the Greens stand on the sidelines waving in the hope someone will take notice.

Currently Premier Bartlett is arguing he does not have the confidence of the Tasmanian electorate but is suggesting Liberal leader Will Hodgman does.

In fact the question for the Governor is whether either of them has the confidence of the House of Assembly. The Governor acts on the advice of a premier with the confidence of the House of Assembly, but as yet the House has not met to make any expression of confidence in the current government. Premier Bartlett is offering advice, and Liberal Leader Will Hodgman would be happy if the Governor accepted that advice, but the Governor does not have to accept Premier Bartlett’s advice if it is unclear whether the House of Assembly has confidence in Premier Bartlett.

In the past we have seen governments that have lost their majority trying to offer advice on staying in power to the Governor and being instructed to meet the new parliament. This happened with the defeat of the Tasmanian Gray Liberal government in 1989 when it was replaced by the Field Labor government in an accord with the Greens.

What is unique in the current case is I cannot think of another example where a premier has been offering advice about resigning from power. Ray Groom resigned as Liberal leader and premier in favour of Tony Rundle after losing his majority at the 1996 election, but a party seeking to hand power to another party seems to be without precedent.

How much easier would all this be if there was a basic parliamentary procedure where the premier was elected by the parliament? This would be much more straightforward than wading through the fog of the Crown’s reserve powers on the appointment of advisers.

There is also the vexed question of defining a vote of no confidence. For instance, in late 1991, Tasmanian Labor premier Michael Field lost a clear motion of no confidence in his government, defeated by the combined vote of the Liberals and Greens. His government survived because Field visited the governor, advised that he felt he still had the numbers to control the House of Assembly. Field returned to the House of Assembly and moved the procedural motion for adjournment and won the vote, demonstrating to the governor that Field’s government still controlled the day to day functioning of the parliament.

The classic vote of no confidence is to amend the appropriation (budget) bills. The Curtin Labor government replaced the Fadden Coalition government in Canberra in 1941 after the Labor Party successfully moved to amend the appropriation bills by one pound. That is the traditional method of displaying the government cannot guarantee the provision of funds for the normal operations of the Crown.

So why has no jurisdiction moved to electing the head of government? In the end, introducing a vote on head of government re-awakens the spectre of the 1975 dismissal of the Whitlam government. I wrote in an earlier paragraph about governments needing the confidence of the lower house of parliament. As the 1975 crisis demonstrated, Australia’s use of bicameral parliaments can complicate British constitutional norms, in certain circumstances making government responsible to both houses of parliament.

Governor-General Sir John Kerr’s action in withdrawing prime minister Gough Whitlam’s commission would be more difficult if procedures for electing the head of government were instituted. There are also questions of what would occur in the case of premiers or prime ministers being replaced mid-term.

None of these problems are insurmountable, just difficult to achieve without political good will. Electing prime ministers would be difficult to achieve because of the high hurdle placed by needing a referendum to change the Constitution. It may be a debate left until the question of a republic re-emerges.

However, it would be easier for each of the states to achieve, as has been shown by introducing fixed term parliaments.

As the strange case of Tasmania reveals, moving to having parliament elect premiers is an idea whose time might have arrived.