Ministerial Speech
(73k)Senator the Hon Joe Ludwig
Minister for Human Services
30 October 2008
- Check Against Delivery -
Queensland University of Technology, Faculty of Law Mandate Theory and Senate Practice
Good evening ladies and gentlemen.
It’s a pleasure to be here at the Queensland University of Technology. I thank the Faculty of Law for giving me with the opportunity to share some of my thoughts on the Senate and its workings, with you. I’d also like to thank you all for coming here tonight.
This is a fitting place to speak on government theory. You are seated tonight in perhaps the first place in this State where indigenous people were permanently dispossessed. The land was used for the institutions of government in this state – the vice-regal residence of Old Government House, and the Houses of Queensland Parliament.
The people who lived on this land were a clan of the Turrbul people. Despite the fact the common law of this land determined they were British subjects, rather than enjoying the equal protection of the Crown through these institutions built on their land, they were forced out of town past the no-go line later named Boundary Street to live in what is now Victoria Park. Given that history, I think it is entirely appropriate to begin by acknowledging the traditional owners of this place.
Introduction
Before I start on the topic proper, a bit about my own experience might put some of this into context. I was elected to the Senate as a Labor candidate in 1998 and took up my place as a Senator for Queensland in July 1999, so I am not too far off a decade of service in the place.
In addition to that general experience as a Senator, since 2001 I have taken a more hands-on role in what actually goes on in the upper house, first as Manager of Opposition Business in the Senate and since the last election, as Manager of Government Business.
In this latest role, I am much involved with the practicalities of getting government legislation through the Senate. I understand from first-hand dealings, how a government might want the Senate to operate, as well as how far an Opposition may choose to accommodate that wish.
This lecture gives me the opportunity to stand back from the daily challenges of the Senate and reflect on the Senate within a framework of mandate theory, but let me assure you I don’t intend to be overly theoretical.
The Concept of a Mandate
According to Oxford, the term ‘mandate’ comes from the Latin mandatum meaning simply to give command1. As a governance concept the theory derives from Chinese culture. It held that natural disasters, attacks by foreign invaders or social upheaval were evidence that the Emperor had lost the favour or mandate of heaven and, as a consequence, could legitimately be rebelled against and replaced2.
Mandate is to my mind tied to the concept of where an authority draws its legitimacy from. As a modern democracy, we maintain the source of government authority is not a mandate from heaven, nor a divine right of kings, but rather the will of the Australian people.
This is affirmed in the preamble to our Constitution. It explicitly cites, albeit with God’s blessing, the agreement of the people of the various colonies to ‘unite in one indissoluble Federal Commonwealth’.
The concept of ‘mandate’ as the expressed will of the people is most often cited when governments change or there is a significant political controversy. This term is used in the context of providing legitimacy to an incoming government’s policies and its right to implement those policies.
Likewise, opposition parties argue the incoming government does not have such an all encompassing mandate to implement its policies or legislative agenda, and instead they argue they have a mandate to oppose.
The Question is: How can both government and opposition parties claim the mandate for their apparently contradictory positions? Roger Scruton wrote in A Dictionary of Political Thought that: “The doctrine of the mandate is highly influential in democratic politics, although it is extremely difficult to see quite what it means”3.
I want to turn now to examine this issue of conflicting mandates in more depth.
When mandates collide
To understand how mandate works and how conflicting mandates can arise, I will first confine my remarks to the comparatively simpler environments of lower houses. These are the House of Representatives and the various State Legislative Assemblies.
As I have stated, a mandate can simply be defined as the expressed will of the people. Election results have been for most of Australia’s history, conclusive. One party receives more votes than the others and takes Government. Rarely are there complicating factors, such as hung parliaments.
But even a single electoral event such as an undisputed election result for the House of Representatives can provide enough grounds for both the government and opposition to claim a mandate.
Government is formed from a working majority of the successful candidates assembled as the House of Representatives. Should those candidates withdraw their authority or mandate, the Government will fall.
So while the mandate or line of authority for Government in the House of Representatives is clear, the complicating factor is political allegiance. For example, a non-governing party achieving 40% of the vote and 40% of the seats, also has a mandate. It is a mandate to oppose.
It becomes more complicated when one party receives more than 50% of the vote, but fewer than 50% of the seats, such as in the 1998 election.
Our system recognises the concept of a loyal Opposition and the legitimacy of its mandate to oppose the Government in the people’s House – the House of Representatives.
To become law, a contentious bill has to survive the scrutiny of this mandated debate between government and opposition. But once debate ends and a bill passes the House, the House has spoken, it has spoken as a whole. In this sense, the outcome of the process is the result of the collected expressed will of the people.
Straight forward so far, I would argue the mandate given to both opposition and government in lower houses is not contradictory but complimentary. However, conflict of mandate can and does arise in two substantive senses:
- Where the upper house also claims a contradictory mandate
- Where, in those areas of shared responsibility, both State and Commonwealth claim a contradictory mandate.
I’d like to deal with latter issue first and quickly. The States and the Commonwealth do not hold their elections simultaneously and it’s reasonable to expect the public to change its mind on a particular issue in light of circumstances or events. And they do. The voters also have the right to choose seemingly contradictory mandates at separate elections.
The Commonwealth and States largely govern different spheres with different issues at the forefront. It does not follow that one government’s mandate has any more legitimacy than the other. There is nothing remarkable that the same group of people, acting collectively as an electorate, would issue a differing mandate to differing levels of government, even if elections were held at the same time.
The Extent of a Mandate – WorkChoices as a Case Study
At the core of the disputes that arise over mandate is the question: once granted by the electorate, how far does a mandate extend?
We have just experienced a remarkable case study – WorkChoices.
The Howard Government was returned for a fourth term in office in 2004. The election also gave the government control of the Senate. Not since 1981 had a government held a Senate majority.
During the 04 election campaign, nothing was said about a radical plan to use the corporations power to seize control of industrial relations from the States and replace it with a Federal scheme with fewer protections.
Yet, on returning to office, the Howard government claimed it had a general mandate as a popularly returned government – reinforced by a mandate of an absolute majority in the Senate.
The fatal mistake of the final Howard term was the failure to recognise mandates are held only on trust.
WorkChoices was rammed through, with a one-week Senate committee hearing.
Voters expect a government to respond to emerging issues that have not been foreseen in election commitments. The global financial crisis is an example of where change of circumstances requires governments to act decisively, in ways not envisaged during the election and therefore not contained in pre-election commitments.
What WorkChoices shows, is that there is a natural limit on mandate, even in the circumstance where there is no upper house, as in Queensland, or an upper house with no teeth, as in the last Howard Senate. What you cannot do with your mandate, is to dispose of the trust placed in you.
At the last election, Australians decided a mandate was not a licence to do what you want. For the second time in the nation’s history, they withdrew that mandate with such force as to dump not only the Government, but a sitting Prime Minister out of his seat.
In this instance, there was no conflict of mandate between the House and the Senate, because the Government controlled both. Let’s now turn to consider the more interesting matter - where conflicting mandate is claimed between upper and lower houses.
Upper Houses Generally
Can the Senate claim a mandate in conflict with that clear mandate expressed through the House of Representatives?
Traditionally, the concept of upper houses having a mandate has been anathema to the Labor side of politics. Upper houses or legislative councils at the state level have been viewed as relics of the colonial era.
Originally, election to these bodies was by direct appointment of the Crown, to ensure a measure of vice-regal control over the Parliament. As that power progressively passed from the Crown to conservative directly-elected administrations, they in turn appointed candidates to the legislative councils. Sometimes these were lifetime appointments, deliberately chosen to frustrate social reform emerging out of Labor and small-L liberal reformers.
For the early part of the twentieth century, much of the story of the ALP was about the struggle to abolish legislative councils. Only here in Queensland were they successful. Having failed in the other States, Labor settled for the less ambitious goal of democratisation, to make these bodies directly elected rather than appointed. The last successes were achieved as late as the 1970s.
Given the history of upper houses being used as a counter or brake on the will of the people, it is not surprising that the claim of an upper house mandate is treated with healthy scepticism by us. It is our historical experience.
The Senate
The Senate, however, is different from all other upper houses in Australia. Its members have never been appointed other than to fill a casual vacancy caused by death or retirement, and the means of election have been guaranteed and spelt out in the Constitution from day one of Federation.
While originally conceived of as a “States’ House”, the Australian people have almost uniformly chosen party political candidates. Party discipline in this country has meant a Senator’s individual State interests give way to what the particular party considers the national interest4.
Since 1949, Senators have been elected by proportional representation. Senators are elected for six year terms. This election method has significantly altered the way governments approach their legislative agenda. It has made it harder for governments to win a majority in the Senate. Since that time, government without a majority in the Senate has become the rule rather than the exception. This should be regarded as the norm in the Australian political landscape. Labor governments since 1948 have not had a majority in the Senate.
In practice then, the Senate has not served as a States’ house but instead has performed a more valuable role as a house of review and as a check on executive government.
This role has been consolidated and strengthened since the establishment of the modern Committee system in the 1970s. Again, this was largely the result of reformist Labor endeavour. The committee system allows the Senate to serve a constructive role within party political structures that may not have been entirely envisaged by those who founded Australia’s bicameral system of government5.
At first glance then, it would seem the Senate, the government and opposition parties, and the cross-bench members within it, do have a claim to a mandate similar to that of the House. But there are major differences:
- The Senate does not form the Government
- Electors vote collectively by state rather than locally
- Only half the Senate is elected at the same time all of the House of Representatives are elected. (Except in rare double-dissolution elections, and for the 4 senators from the ACT and NT who are elected for 3 year terms).
Before exploring that claim further I’d like to turn now to how the Senate operates in practice.
Senate Practice
It is tempting to try to explain the conflict of the houses as an “irresistible force meeting an immovable object”. But it’s more useful to consider how comparatively rare this is in practice.
History suggests most governments can operate successfully with a minority in the Senate.
It is interesting to look at some statistics. In 1995, the Keating Government operated with a majority of 79 seats to the Opposition’s 68 seats in the lower house (plus 2 independents). In the Senate, it held 29 seats to the combined non-government representation of 476.
The numbers were lined up, therefore, to thwart the Keating Government’s legislative objectives. This was not the case. According to the Clerk of the Senate, the Keating Government succeeded in getting 96% of its legislative program through the Senate. This indicates the government’s ability to turn policy into law was not greatly restricted by the Senate. Although these figures do not take into account several individual pieces of significant legislation7.
Further analysis by the Clerks on the legislation passed in 1995, shows the amendment rate of bills was high, with the vast majority of the amendments moved by the Government being successful.
Analysis of legislation passed through the Senate in years not truncated by elections suggests processes of negotiation and compromise are a characteristic of the Senate. For the Howard Government in 1997, 80% of bills introduced or already on the Notice Paper were passed through both Houses; in 2000 the figure was 81.6%; and in 2005 when there was a Government majority, the figure remained at a similar level, 81.9%.
Even then, this average of around 80% of a government’s legislation program being passed through the Parliament does not necessarily suggest the rest has been rejected. The 20% of government legislation remaining on the Notice Paper following the dissolution of the House of Representatives says more about the flow of legislation. There is in fact a “carry-over” of legislation to the next sitting period to provide for enough legislation to consider at the beginning of a sitting, and enough work for committees to review during a break. And some bills are not proceeded with for reasons other than a lack of opposition support. When these conditions are taken into account, the outcomes from 1995 to now are comparable.
The experience of the Rudd Labor Government
So how has the Rudd Labor Government fared in terms of implementing its legislative agenda?
Up to the end of June this year, the Senate operated with an Opposition majority. The Coalition had 39 of a possible 76 votes. Even with all 4 votes of the now departed Australian Democrat Senators, and 3 votes of the Greens, the Government could not get any legislation passed without the support of the Opposition before 1 July this year. This hard reality did not make much difference to the percentage of bills introduced or already on the Notice Paper passed by both Houses up to 30 June this year - 79%8.
Legislation that was passed included the major appropriation bills from the May budget. And more controversially, the first tranche of the legislation to put in place the Government’s Forward with Fairness workplace relations package replacing the Howard Government’s WorkChoices legislation.
The composition of the Senate from 1 July is: the ALP with 32 Senators, 37 Opposition Senators, 5 Green Senators, 1 Family First Senator and 1 No Pokies Senator. The reality of these numbers is that the Opposition needs only one vote to defeat a motion. A majority vote is required for a motion to pass; a tied vote is the same as an outright lost vote. To pass legislation, the Government needs either the support of the Opposition, or the support of all cross-bench Senators. Let me just say – that’s a challenging task.
There were three significant budget bills introduced but not passed by the end of the sittings in June this year. They were: the Condensate bill, the Luxury Car Tax and the Medicare Levy bill. These bills were all referred to Senate committees to examine the details of the bills and were not passed by June 2008.
The Opposition had indicated publicly that it had strong reservations about the Condensate bill and was opposed outright to the other two bills – Luxury Car Tax and Medicare Care Levy Surcharge.
These three bills can be seen as most testing the mandate of the Rudd Government. The changes these bills promoted were not in the Labor party platform before the election in 07, but they were major revenue bills for the new Government. I think it is legitimate to characterise them as a significant test of the Government’s mandate to shape its first budget.
The Government used the aims of the legislation to establish the legitimacy of its claim to have these bills passed. For the Medicare Levy Surcharge, it was tax relief should be provided through indexing income levels at which a levy applies; for the other two bills that raised considerable amounts of revenue, the argument was that the Government needed the revenue to maintain a considerable surplus and restrain inflationary pressures in the economy9.
These arguments were actively pursued in the parliament and complemented by discussion in the media. In the House of Representatives it was not unusual for the first four questions from Government backbenchers to go the issue of why these Government bills should be passed by the Senate. And the theme of containing inflationary pressures and the need for these budget bills was pursued in subsequent questions, media interviews and media statements by ministers.
The Government took every opportunity to present its case for the passage of these bills, to argue for its right to have its budget passed.
At the same time, the Opposition argued that none of the changes had been foreshadowed in last year’s election, and that the revenue to be collected was not necessary given the size of the surplus. By and large, they opposed the bills on the basis of their claim there was no mandate for them.
The Luxury Car Tax bill was passed with amendments to address concerns identified by the three cross-benchers. Senator Xenophon’s amendment saw the removal of the increased tax from cars bought before Budget night, but delivered after Budget night. Amendments to address concerns raised by the Greens saw fuel efficient cars excluded from the increase to the tax. Senator Fielding’s concerns were addressed through excluding farmers and tourist operators from the increase to the tax.
These adjustments to the operation of the tax still delivered the main intent of the bill yet meant that the bill could be passed.
The Condensate bill was passed without amendment, though extensive briefing occurred in addition to the Senate committee inquiry.
Compromise to accommodate a range of interests could also be seen operating when the Medicare Levy surcharge bill was considered by the Senate. With this legislation, the cross bench Senators agreed with the Government that some adjustment of the income level was appropriate eight years after the introduction of the levy. The Opposition simply opposed the bill.
In negotiating the passage of the bill, the discussion was about the nature of the indexation used to reach the income level at which the levy would apply. Various options were canvassed. In the end, the initial proposal of an income over $100,000 was reduced to $70,000 to reflect indexation of the original income level. An ongoing adjustment of income levels by indexation was also retained in the bill.
In reflecting on all three of these bills, it is clear that the Government had to work hard to ensure passage of the legislation. The aim was to get the Senate to do its proper job.
Senators get on with the business of the Senate – reviewing legislation, hammering out compromises and passing legislation. The reality is that Senators interpret their individual mandates as entitling them to exercise their say in the legislative process using their party or individual election commitments as a basis for negotiation.
As a Senator, my experience is that negotiation and compromise delivers outcomes both broadly acceptable to the electorate, and consistent with allowing a government to govern, that is, use its mandate to implement its key policies.
Mandate theory and Opposition private members bills
Mandate theory can also play out in Opposition private members bills. In September, many of you would remember, the Opposition introduced, and the Senate passed a bill to increase the weekly age pension rate by $30 for a single pensioner.
This was an unusual development. The Government’s view was that this bill was a “proposed law appropriating moneys” for the purposes of the first paragraph of s 53 of the Constitution. As such, the bill could not originate in the Senate. Further, the Government’s view was that s 56 would prevent passage of the bill in the absence of a message from the Governor-General recommending the proposed appropriation.
Using advice from the Clerk of the Senate, the Opposition and cross-bench Senators took a contrary view. The reasoning was that a bill to increase the rate of age pension does not need to contain an appropriation for money as age pension, and other entitlements under the Social Security Act 1991, are automatically paid under special appropriation of indefinite duration and unlimited amount in s 242 of the Social Security (Administration) Act 1999.
The Opposition bill passed the Senate, with the message reported to the House. The House declined to consider the message, and the bill went nowhere. This was not a bill on which compromise was possible.
There are conclusions to be drawn on the fate of this bill and the mandate of the Rudd Government. They reflect the reality that, in Australia’s bicameral system, it is the Government that has the mandate to set the control of the legislation program. No private members bill will progress without the support of the Government. This is a powerful expression of the mandate given by the electorate to any government.
The Senate, Senators and Mandate
I mentioned earlier that prima facie it could be said the Senate has a mandate. The question is to what extent is the mandate similar to that entrusted to the House of Representatives?
At the very least, the Senate has a mandate to review and act as a check on executive government. That is in a sense a negative or ameliorative mandate rather than a positive mandate.
There is something more – with exceptions of the appropriation of money power I referred to above -- the constitution states the Houses’ powers are equal. That means that Senators are positively mandated at the very least to introduce legislation to change or implement new policy without financial impact.
It is fair to say some of the minor parties, particularly the Greens, believe the proportional representation method of election that sees them elected in the Senate, but not the House, also bestows upon them a positive mandate to pursue minor party objectives, by the only parliamentary means available. This Green activist philosophy can be contrasted with the traditional Democrat “keeping the bastards honest” philosophy.
The Democrats are no longer with us – their demise serving as another contemporary example of the abuse of mandate. John Howard sealed his fate with WorkChoices, but before that, the Democrats walked into his trap on the GST. Australians who elect you for a purpose are unforgiving when you veer away from that course. The never-ever GST began for the Democrats their descent into oblivion.
The latest iteration of the Green Activist philosophy is the Liberal Party’s pension bill stunt I mentioned previously – a dangerous means of circumventing the constitutional primacy of the House of Representatives.
Contrary to Glenn Milne’s recent claims10, this is not about constitutional esoterics, but a new development that has serious implications should we ever find ourselves in the situation where we have a minority government in the House of Representatives and a hostile Senate. In the constitutional interpretation favoured by Malcolm Turnbull, we could, for example face a situation of two competing Budgets for social welfare with one developing in the Senate while another goes through the regular process in the House. Loss of budgetary control in this way is simply dangerous, when it comes to the question of a minority government, but that is the path Malcolm Turnbull has laid for all oppositions hence.
Beyond the constitutional favouritism of the House, there are many good reasons to insist that the mandate Senators and the Senate hold - though powerful - are not the equal of the House and its members. Convention insists that the Prime Minister (and usually the Treasurer) are drawn from (or, once elected take their place in) the House, not the Senate, and it is only in the House that the Government must secure confidence to survive.
In fact, the vagaries of Senate-type voting caused by convoluted calculation of preference flows at state level quite often leads to ultra fringe parties being elected with a miniscule proportion of the primary vote.
Conclusion
In considering all these factors, mandate theory and Senate practice, it is time to draw some conclusions. First, I believe a mandate, in the modern sense, to be nothing more than the authority of office, entrusted to an individual through the democratic process.
I believe that WorkChoices shows us that governments do have a mandate to govern and that oppositions have a mandate to oppose, but this mandate is held merely on trust, is both limited and conditional in its extent.
For government, this limit in part is the expectation that the type of ideologically driven wholesale and fundamental change to our society, such as WorkChoices, will not simply be sprung on the Australian people without being flagged in advance of the mandate being given.
When President Eisenhower entitled the first volume of his presidential memoirs “Mandate for Change”, he was stating that the electorate had endorsed the plans he had outlined to them11. His mandate applied both specifically to individual policies and generally to allow him to govern. Not to be a despot, but to govern. This means putting policy proposals embodied in legislation before the parliament, and delivering these proposals. Sometimes this involves processes of compromise and negotiation, but the policy intent should remain intact.
For opposition, this limit is the expectation that government will be allowed to govern. In the Senate, particularly where the government has no majority, this means properly playing the role of review, report, negotiation and amendment to achieve their policy aims, rather than the mindless oppositionism of the sore loser.
The Rudd Labor government respects the mandate of Senators. But it is my contention that this mandate must be used judiciously and in contemplation of the supremacy of the House and the government’s broader mandate to govern on behalf of all Australians and to deliver on its legislative agenda.
When it comes to irreconcilable conflict between the Houses, our Constitution fittingly recognises this through the means of the double dissolution election, which again comes back to competing for the mandate of the Australian people. To that end, and as the parliamentary prayer states, it is for the welfare and benefit of the Australian people, not sectional or political interest, that mandate must be exercised.
Thank You.
1 The Australian Concise Oxford Dictionary, Fourth Edition, Oxford University Press, 2004, 'Mandate, p.852,
2 Franke, Herbert, Twitchett, Denise and King Fairbank, John The Cambridge History of China, 1994, Cambridge University Press, 1994,p348
3 Scruton, Roger A Dictionary of Political Thought, Macmillian, 1982, p.282, cited Nethercote, J.R. Mandate: Australia’s Current Debate in Context, Research Paper No19 May 1999 1998-99 Australian Parliamentary Library, p.20.
4 Evans, Harry (ed) Odgers’ Senate Practice, 11th edition, Department of the Senate, Chapter 1, pp.1-22.
5 Senate Committees and Responsible Government, Papers on Parliament, Number 12, September 1991, pp.1-4
6 Elliott, Cleaver “Less than Optimal Outcomes” – Governing without the Numbers in the Australian Senate, paper presented at the 18th Annual conference of the Australasian Study of Parliament Group, October 1996, p.2.
7 Ibid, p.2
8 Unpublished figures drawn up by the Senate Clerks for this speech.
9 Many statements made on this by Government ministers and members. See, for example, Senator the Hon Chris Evans, in response to a Question Without Notice from Senator Hutchins, Senate Hansard, 26 August 2008, p.3649.
10 Milne, Glen ‘How Turnbull made buck stop at Rudd’, Sunday Telegraph, 28/9/08, p.82
11Dwight D Eisenhower, Mandate for Change, Heinemann, 1963, chapter 4, cited Nethercote, J.R., op cit, p.5.Media Contact
Joe Scavo — 0413 800 757.
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