The M Word; the looming election and the right to legislate

On 29 August 2019, the Forty-Fifth Parliament of Australia will expire. Under the provisions of the Commonwealth Electoral Act 1919 (and section 28 of the Constitution), the latest date for the election of the House is 2 November 2019. Of course, the actual date will be sooner; half of the Senate expires in 2019, and the law requires that the half-Senate election be held and completed in time for their replacements to take office on 1 July 2019 – practically, this sets a date of 18 May 2019 at the latest for that.

A double dissolution cannot take place within six months of the expiry of the House – no later than 28 February 2019 – and we all know how well the government didn’t do the last time they called one of those.

Historically the electorate has tended to treat a separate half-Senate election as an excuse to kick the government without kicking it out; Australian governments have been very reluctant to let the houses get out of sync, so we can expect to see the next election be a House and Half-Senate – the sort we usually get. This must happen between 4 August 2018 and 18 May 2019[1].

Antony Green observes that, when we take into account Victoria and New South Wales’ impending elections, factor in the timing of the Easter/ANZAC Day holidays in 2019 (they are in the same week), and the rarity of elections in December through February, the most likely period for an election is September-October 2018[2].

Despite Turnbull’s assertion that there won’t be an election this year[3] there’s a long-established history of politicians, well, lying about this. Only once in Australia’s history has an election taken place after the parliament expired, in 1910[4].

We can, as the ALP is doing, proceed under the assumption that this is an election year.

Regardless of the outcome, no matter who wins, we can expect to be bombarded with the dreaded “M” word; mandate. The winner will claim a mandate to implement their policies to their heart’s content, as though handed the right to rule by God, and will hurl all sorts of insults at any obstructionists in the Senate or the Opposition benches. We’ve seen it happen after every election.

Here’s a funny fact; there’s no such thing. Not in Australia. If you hunt through the Constitution, you’ll find no mention of it. Odgers’ Australian Senate Practice uses the word three times – and never to imply the government has such a thing[5]. It appears once in the House of Representatives Practice – when detailing the reasons given to the House by the government of the day for the dissolutions of the House in 1917, 1955, and 1963[6]. It does not appear anywhere in the sense of the government being allowed to just implement its policies.

It’s the same in America[7].

For use to find such a thing as a mandate, it is to Mother England, with her Salisbury Doctrine, that we must turn. Simply put, the Doctrine states that the House of Lords will not block any tabled bills listed in the election manifesto of Her Majesty’s Government – they can only be “reasonably” amended (no amendments designed to sink the bill are allowed). The manifesto is a publication containing the policies a party stands for and would implement if they form government – we’d call them a collection of “core” promises. Any policies a party wants to implement that are not in the manifesto it cannot claim to have been elected for; these policies are fair game[8]. (This is not to ignore the Parliament Acts that allow the Commons to overrule the Lords – but circuit-breakers for disagreement between the houses is not the focus here.)

There is no Salisbury Doctrine in Australia. All policies and bills are fair game in either House of Parliament – especially given how prone our governments are to designating promises as “non-core” after the fact or just outright breaking them.

In Australia, the only mandate a government has is that it may try. No-one is under any obligation to let it succeed. Indeed, as Arthur Fadden found out in 1941, a government doesn’t even have a mandate to be the government if enough members of the House decide they don’t want it there. And we needn’t revisit the events leading up to the Dismissal to recall that, in the absence of a government majority, the Senate has never behaved as though anything like the Salisbury Doctrine applies here.

So when you hear a government on Canberra’s Capital Hill getting shouty about a mandate, think “bullshit”.


Citations

[1] Lundie, “‘So When Is the next Election?”

[2] Green, “Federal Election Timing.”

[3] Tillett and McIlroy, “Malcolm Turnbull Says the Election Won’t Be until 2019.”

[4] Lundie, “‘So When Is the next Election?”

[5] Odgers and Evans, Odgers’ Australian Senate Practice.

[6] Wright, House of Representatives Practice.

[7] Youngberg, “There’s No Such Thing as a Presidential Mandate.”

[8] Dymond and Deadman, “The Salisbury Doctrine.”


Sources

Dymond, Glenn, and Hugo Deadman. “The Salisbury Doctrine.” London: House of Lords Library 30 (2006). http://www.parliament.uk/documents/lords-library/hllsalisburydoctrine.pdf.

Green, Antony. “Federal Election Timing and How to Move the Dates of the Next NSW and Victorian Elections.” Antony Green’s Election Blog (blog), May 4, 2017. https://web.archive.org/web/20170707022545/http://blogs.abc.net.au/antonygreen/2017/05/federal-election-timing-and-how-to-move-the-dates-of-the-next-nsw-and-victorian-elections.html.

Lundie, Rob. “‘So When Is the next Election?’: Australian Elections Timetable as at 1 September 2016.” Australian Parliamentary Library, September 1, 2016. https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/AustralianElectionsTimetable.

Odgers, J. R, and Harry Evans. Odgers’ Australian Senate Practice. Edited by Rosemary Laing. 14th ed. Australia: Department of the Senate, 2016.

Tillett, Tom, and Tom McIlroy. “Malcolm Turnbull Says the Election Won’t Be until 2019.” Australian Financial Review, January 22, 2018. http://www.afr.com/news/malcolm-turnbull-says-the-election-wont-be-until-2019-20180121-h0m0do.

Wright, Bernard C., ed. House of Representatives Practice. 6th ed. Australia: Department of the House of Representatives, 2012.

Youngberg, David. “There’s No Such Thing as a Presidential Mandate,” January 10, 2018. https://fee.org/articles/theres-no-such-thing-as-a-presidential-mandate/.

 

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Helsinki and Canberra: A Brief Follow-Up

As a follow-up to last night’s piece on the Finnish vs. Australian electoral systems, I was asked if I thought Australia was over-governed.

My short answer is; kind of.
The long answer is; more poorly-organised than over-governed.

Let’s pretend for a moment that I have the absolute power to reorganise the Federation as I see fit; here’s what I’d do.

First, I’d redraw the boundaries of the States and Territories; there’d be more of them, and they’d be drawn according to both the current population distribution, and likely corridors of population growth. According to, well, everyone I know who lives there, the State Government of New South Wales frankly only really cares about an area centred on Newcastle, Sydney, and Wollongong; so let’s let them focus on that, and shear away the rest, redistributing it based on regional areas of focus. Same deal for all the rest (having Albury-Wodonga split asunder by a state border is rather silly, no?), with the possible exception of Tasmania.

Second, the municipal councils would all go. All of them. Every one. What would replace them is the ACT’s system – where the territory government has the functions, responsibilities, and powers (ignore the federal relation for a moment) of a state government and of a municipal ones. The regional government would look after e.g., both garbage collection and education. It seems to work quite smoothly in Canberra.

Third, to ensure that outlying areas aren’t neglected, each one of the legislatures of these new regional governments would be elected on the same system as the ACT’s – the Hare-Clark proportional system, with several multi-member electorates ensuring that all parts of the region have a voice in the legislature.

At the Federal level, the apportionment of the House of Representatives would be the same – single-member constituencies allocated by population, with each region getting a certain minimum (at least two). The number of Senators would need to be recalculated, but I’d either keep the principle behind the Senate the same (equal representation for each region so that the lower-population ones don’t get screwed) or I’d make it a single nation-wide multi-member constituency. Voting systems would be unchanged (I like the single transferable vote as well as instant run-off voting), as would the means of forming government.

An important caveat: this is just something I’ve sketched up in notes on my phone during lunch, a thought exercise. I’d need to do quite a bit of research to check how feasible it would be (political considerations aside), and what the effects on the economy would be.

This is, of course, utter fantasy; the States will never consent to being carved up like this (well, Tasmania might – because it gets to watch), and if I recall the Constitution correctly, they have to agree to any such thing. But I doubt I’m the only one who has considered this idea.

The Senate Voting Reforms in 600 words

So I’ve been reading Antony Green’s blog on the proposed Senate voting reforms, and from that, here’s a nice little rundown of the proposal as it stands right now.

I am assuming you know how the single transferable vote system used in the Senate works. If not, click here and brush up.

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The ALP, the Plebiscite, and Marriage Equality

A couple of years ago I wrote a piece about Kevin Rudd’s support of marriage equality. It was, frankly, over-dramatic and painfully self-righteous and looking back on it I cringe a little. I’m leaving it up, instead of hiding the old shame, because although my presentation was awful, the argument itself I fully stand by.

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Three Circles and People on Boats

So the High Court did a thing with people seeking asylum today. In case you were asleep or stoned.

And people are quite outraged.

I’m not.

Before we go into why, we need to check this pretty picture out. It’s my rendering of the “spheres of control” diagram, done in five minutes in MS Paint. Behold my elite graphics skills:

spheres

Stop laughing. Let’s look at them.

First; the sphere of control. This is what you directly control; within this sphere, your will shall be done. At its very core is you; your body, your mind, and so on. Granted, some of us are at the mercy of things like brain chemistry gone awry or an immune system in revolt, but for the vast majority our selves are under our direct control. Further out but still here are the people who answer to you at work, things you have direct authority over, etc. The point is that here, you control the outcomes.

Next is the sphere of influence. You can persuade, lead by example, support others, and so on, to influence outcomes you don’t directly control. You can help push things in a particular direction, but the result isn’t certain and you won’t always get what you want. Other people fall into here, unless they answer to you in some capacity.

Third comes the sphere of interest. These are things you are aware of, or interested in. They may impact you, but, most important, you actually have bugger all say in them (or what say you do have is negligible). Some of these things can be crucial; such as the economy. Others are of curiosity only, like the mapping of Pluto (unless that’s your job – in which case why are you reading this? Go do science!).

Outside of this is irrelevancy.

Now the problem is that too many people allow the sphere of interest to become a sphere of concern, or a sphere of worry, and that leads to stress (which, I hardly need tell you, is a great way to screw up your mental and physical health).

Which leads me to the asylum seeker ruling from the High Court.

It lies in my sphere of interest; I found it interesting. But I am not concerned or worried by it. Nor am I outraged. First, the High Court was not asked to rule on whether this was moral or just, but if it was constitutional and legal; they found that it is. So be it. Second, and more importantly, I can do nothing at all to change that outcome, nor can I do anything to prevent those people from being sent to a remote island in the South Pacific. I could act in my sphere of influence to talk to those around me, but everyone I know is outraged already; preaching to the choir when it’s already singing is a pointless exercise. It is outside my sphere of influence in any meaningful sense of the term, and as I do not set immigration policy in Australia, it is far outside my sphere of control.

That all changes on Election Day; democracy affords us the chance to tell our leaders that this was unacceptable. If you truly feel so strongly about this issue, if you think Something Must Be Done, then take note of this. Look at the various political party’s websites; examine their policies in the lead-up to that day.

Then cast your vote accordingly; on that day, the issue moves into all our spheres of influence.

For what it’s worth, no, I don’t think this will be a big enough issue to actually change things. After 2013, ALP is terrified of being seen as soft on this issue, and the Coalition has more intention of legalising same-sex marriage than of softening their stance. And the reason they do this is because it still wins them votes. It will take a major upset to break either party out of their stance on this.

And when the chips are down, the plight of asylum seekers is not uppermost in the minds of voters; it’s the economy, stupid.

Captain Logic and the Polygamy Argument

Some people, who I will charitably describe as “offensively moronic”, keep claiming that legalising same-sex marriage will lead to polygamy.

Two things before we go further. First, a note on terminology; when most people use the word “polygamy” they mean “polygyny” (one husband, multiple wives), but the term “polygamy” does cover all the combinations (polygyny, polyandry, and group marriage).

Second, there’s a limit to the discussion; I am not making a judgement, one way or another, about whether or not polygamy is OK, desirable, or if the “social/legal equality” argument requires polygamy to be legalised as well. Those are beyond the scope of discussion; they are irrelevant. I am dealing with a specific claim.

This claim is;

legalisation of same-sex marriage will lead to the legalisation of polygamy.

There are two important things to note;

  1. The inevitability of polygamy; the claim is nearly always worded so as to present the legalisation of polygamy as an inevitable, unavoidable, consequence of the legalising same-sex marriage; and
  2. This is a positive claim; it is proposing that something will occur. It is not saying something won’t happen or doesn’t exist; it is asserting that something will happen or does exist – that x will lead to or result in y.

Let’s explore this, shall we?

That argument is horseshit (a technical term meaning that the argument “is groundless and baseless, lacking any factual supporting evidence”).

Look at the map of nations that recognise or permit polygamy, and compare it with the nations that recognise same-sex marriage. The United Kingdom and South Africa are the only two crossovers; the former recognises polygamous unions created abroad where they are already legal for welfare purposes, and the latter recognises them in customary law. In South Africa, the customary law recognition predates same-sex marriage recognition in that country – and the civil law prohibits it. The nations that do recognise polygamy (my research indicates it’s polygyny – group marriage and polyandry aren’t legal anywhere in the world) do not recognise same-sex marriage – in fact they are usually nations extremely intolerant of homosexuals. Even South Africa is patchy there.

That’s all she wrote.

There is no evidence whatsoever that legalising same-sex marriage will lead to legalising polygamy. If anything, the opposite is true; there is evidence of a strong correlation between the legal recognition of polygamy and anti-gay laws – but remember that correlation is not causation.

The argument is horseshit. But it still gets used, often with “you can’t prove it won’t!” – enter Captain Logic, stage left.

Because that’s where it falls down; reversing the burden of proof by demanding that I demonstrate that same-sex marriage won’t lead to polygamy. But if you’re making a positive claim, it’s up to you to demonstrate its truthfulness or accuracy. You have to show evidence for it. It is not up to your opponent to prove a negative. To reverse the burden of proof is to commit a logical fallacy on par with an ad hominem (where you attack my character, not my argument).

On closer examination, the argument bears the hallmarks of a slippery slope, an appeal to fear, and an appeal to consequence. It states x will lead to y without showing how (and against the evidence), and it tries to invalidate x through appeal to fear of y, without showing why y should be feared.

The same-sex-leads-to-polygamy argument’s logic is false on multiple levels, and it’s not even remotely true.

Things could change in the future, but for now it is completely invalid.

If you use the polygamy argument, you fail logic forever; shut up, the adults are talking.