Tasmania’s March 20 state election, which delivered the 10-10-5 conundrum for the next House of Assembly, delivers its coup de grace today when Governor Peter Underwood decides who will go to the new parliament as premier. It is not a lay down misere. Whatever his decision, the former Tasmanian Chief Justice will write constitutional history this day.

The incumbent Labor Premier David Bartlett would have you believe that he will tender political advice to the Governor that Labor is unwilling to govern in these circumstances, and Labor and the Greens (who have the five seats) have a historical enmity in Tasmania.

On November 18 last year both Liberal Opposition Leader Will Hodgman and Greens’ Leader Nick McKim supported a no-confidence motion in Bartlett (on his treatment of a former police commissioner) and, since “nothing has changed”, he cannot expect their support in forming a new government. The fallacy of this argument is within the quotation marks. What has changed is that there is a new parliament.

Plus, Bartlett omitted the fact the no-confidence motion was defeated. Plus, it was a motion of no-confidence in him, not in his government.

Throughout Easter, the ALP cognoscenti have been researching, discussing and comparing notes, not only on the options that Underwood has today, but also on the advice that Bartlett is able to tender him.

A common thread is developing. While Bartlett’s political advice, backed by his new Caucus, is that Labor is unwilling to govern and that Underwood should invite Hodgman to form a minority Liberal government, it is probably advice he should not tender. The premier has to tender constitutional advice, not political advice, today.

Solicitor-General Leigh Sealy presumably will have drafted that advice. It must say, claim the cognoscenti, that with a 10-10 standoff the incumbent government should go to the House of Assembly to test the numbers. To pass the buck to the Liberals is political advice, not constitutional advice.

As local political expert Professor Richard Herr has been arguing ever since election night, to advise otherwise, to do otherwise, places the Governor in an invidious position — if the Liberal government is tossed aside he has no nowhere else to go but to call a fresh election. It is untenable, says Herr, to deprive the Governor of as many opportunities as possible to administer an orderly transition of government. That implies not being party to Bartlett’s political strategies.

Underwood will have taken his own advice, from whomever he wants, not forgetting his own legal eminence. Sealy would be a primary source but, given Sealy is also advising the premier, Underwood will have gone further afield and he will have studied precedent, including the 1989 Tasmanian precedent when a written accord was deemed desirable for stable government delivered by two parties.

Incredibly, this intriguing situation facing Underwood, the interplay between head of government and head of state, has barely surfaced in the Tasmanian media.

There seems to have been an almost blind acceptance that what Bartlett and his Caucus have determined as their position will be adopted by Underwood and enacted today.