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Q&A on mandates

February 15th, 2008

The culture wars must really be over when I’m getting my ideas favorably cited by Janet Albrechtsen. Admittedly it’s prefaced by “even leftwing academics like John Quiggin …”, but her opening para follows my analysis almost exactly, and I agree with her on the point of principle.

Albrechtsen is quoting this Online Opinion piece on mandates, in which I argue that the idea that a government with a majority in the House of Representatives has a mandate obliging the Senate to pass legislation implementing its election policies is misconceived. Since both houses are elected, and since no party in recent decades has received a majority of first-preference votes for the Lower House, there’s no general reason why the views of a majority of Senators should be regarded as less legitimate than those of a majority in the Lower House.

Albrechtsen applies this argument to defend the decision of the Senate to delay, or maybe block altogether, the government’s legislation repealing WorkChoices. While she’s right in rejecting the mandate idea, there are still some good reasons why the Senate should not block this legislation.

The first relates to the lame-duck nature of the current Senate, half of which will be replaced in July with the senators we elected in November. If we had fixed terms for both houses, this kind of nonsense would be avoided, but as it is, I think there’s a case that the outgoing Senate would be wise to take some account of the results of the election, in which the Coalition lost its Senate majority in an election where WorkChoices was a key issue. It doesn’t make much sense to hold up transitional legislation preparing for changes that can be shown to have majority support in the new Senate.

The more relevant point though is political. You don’t need to count seats in the House of Representatives, or parse the text of Labor’s policy statement, to know that the Australian electorate rejected WorkChoices at the last election, and that they haven’t changed their minds since then. If the Coalition parties choose to ignore that fact, they’ll pay a steep political price, as they should, in future elections for both House and Senate. That’s how the mandate of the people is delivered in modern Australian democracy.

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  1. Ikonoclast
    February 15th, 2008 at 22:04 | #1

    I can’t help but agree on the Senate analysis. However, I disagree that the culture wars are over. They are never over. The global rich and powerful are not going to roll over and die just because of one election in one minor country. They are not finished with us or the planet yet.

  2. observa
    February 16th, 2008 at 06:52 | #2

    Bishop’s right about a mandate on AWAs, given their long history and Labor’s hosing down of concern about dumping them in the mining industry, particularly WA. That said the electorate was clearly concerned that some AWAs were on a take it or leave it basis and Labor has a mandate on that point. The obvious solution is to allow workers to opt for AWAs or collective bargaining as they wish, so to facilitate that it would be a simple matter to allow workers to endorse their existing AWAs or opt out for collective bargaining. Neither side could really object to that.

  3. mugwump
    February 16th, 2008 at 07:02 | #3

    the Australian electorate rejected WorkChoices at the last election

    Portions of the Australian electorate rejected portions of WorkChoices. For example, I don’t know a single small-businessperson who thinks reinstating wrongful dismissal laws is a good idea.

    There’s a difference between democracy and populism.

  4. Spiros
    February 16th, 2008 at 08:23 | #4

    The strange thing is, the coalition is going to cop even more political pain for this, and for what? They lose their Senate majority in a few months anyway. They are just being petulent. Some of the smarter operators in the shadow cabinet reportedly argued the government should be allowed to get its way on IR, and then if things go pear-shaped, the government can get the political blame. But they got outvoted by the “we’ve the numbers (for now) “nyah nyah nyah” brigade.

    The government’s popularity is likely to hit stratospheric heights after Rudd’s masterful performance on the apology. This is the worst time politically for the coalition to be blocking the de-Workchoices legislation. They risk locking themselves into the kind of permanent uber-unpopularity that the state oppositions have found themselves in, which portends hyper-landslide at the next election, as the NSW, Queensland and Victorian Liberal National parties have found to their immense cost.

  5. observa
    February 16th, 2008 at 08:43 | #5

    You’re right Spiros, insofar as Nelson has no reasonable story to tell, or tells it badly and gets rolled. He has a reasonable story to tell on AWAs and he needs to be careful in the telling. If I were him I’d do it this way. Basically come clean publicly and accept Labor’s proposition that some AWAs may have been forced on workers, but ‘we’ as reasonable Australians don’t want to throw the baby out with bathwater by denying ourselves free choice in these matters. Australin workers need free choice between collective bargaining or AWAs. That said he calls upon the Govt to legislatively recognise workers rights to choose freely and also calls upon all employers in that spirit, to allow workers to either re-endorse their AWAs or tear them up for collective bargaining. That leaves the ball fairly and squarely back in Rudd’s court. Is he a man of free choice, or beholding to his union masters?

  6. Hal9000
    February 16th, 2008 at 10:00 | #6

    Hang on. The legislation they’re talking about blocking has the primary effect of re-imposing the ‘no disadvantage’ test on new AWAs (henceforth to be known as Individual Transitional Employment Agreements, but essentially the same as AWAs). Check it out at http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=2840&TABLE=EMS

    You might remember the line the discredited former regime ran was that it was all about higher pay and better conditions. If the Opposition reckons it’s good politics to block the ‘no disadvantage’ test, they can look forward to a long long time sitting on the Speaker’s left.

  7. Ian Gould
    February 16th, 2008 at 10:09 | #7

    “Portions of the Australian electorate rejected portions of WorkChoices. For example, I don’t know a single small-businessperson who thinks reinstating wrongful dismissal laws is a good idea.”

    You do now.

  8. gerard
    February 16th, 2008 at 11:49 | #8

    bwa ha ha, let them keep digging their way out of the hole they are in! The Libs are divided about whether to dump WC. Of course, they know it cost them the election, Hockey absolutely hates it, but Julie Bishop and the WA Libs don’t want to lose face over it, and in the rump Liberal party, the WA base counts for a lot. I’m sure Rudd and Gillard are going to milk this 6-month obstruction for all it’s worth. “Sorry” Nelson’s leadership is not looking to be a very distinguished chapter in Liberal history. I’m not on speaking terms with any Lib members, but I can’t imagine he is any more popular with them than he is with the general public, probably even less so.

  9. The Doctor
    February 16th, 2008 at 14:46 | #9

    Given that the Coalition filled their chalice with Hemlock, and tattooed a target on their backs when they implemented WC this sort of thing is just gving the target a fresh coat of paint!

    Incidentally, saw an article in Policy, the CIS magazine – the author was wondering why the surveyed population did not believe that WC would create jobs when the unemployment rate was dropping. Apparently he could not work out what Henry Ford clearly knew!

    1. The poorest consume the most, therefore
    2. A drop in their income, which was the aim of WC
    3. Will be followed by a drop in consumption.
    4. A drop in consumption will be followed loss of jobs.
    5. Steps 2->4 will repeat until a new equilibrium is found.

  10. observa
    February 16th, 2008 at 22:06 | #10

    My bet is Australian vorers would go for my scheme of choice and the Howard Govt could have largely defused the issue had it chosen that option when the bridge too far criticism arose. That option is open to them in Opposition now, to let Australian workers choose between the two systems by voting with their feet, providing it’s fair free choice. Workers are the best judge of any true disadavantage test here, rather than more taxeaters and they should be allowed to choose freely. The Opposition should put Rudd and the unions to the test here. After all what have they got to lose?

  11. Jill Rush
    February 17th, 2008 at 09:36 | #11

    The problem for the Opposition is that they have no logical thinkers who are able to make a clear case. Julie Bishop is turning out to be a great disappointment and if she continues will lose her job at the same time as Brendon Nelson. AWAs stink because of the lack of a no disadvantage test and also because they are used to undermine enterprise agreements. Workers keen to take advantage of AWAs use collective agreements as a benchmark whilst contributing nothing.

    The Opposition will stay that way as long as they are seen to be living in the past – the nineteenth century where workers knew their place and took whatever crumbs fell off the bosses’ tables. At this stage it looks like it will only be a loss for the Liberals as the rest of the country moves on in a way that uses a values system of fairness not privilege.

  12. Hal9000
    February 17th, 2008 at 10:58 | #12

    Uh, Observa, the whole point of WorkChoices was that workers’ choices are entirely circumscribed by their employers’ ability to sack them for any reason or for none. Yes, you can freely choose to go on an enterprise agreement, and your employer can freely choose to dispense with your services. That isn’t some peripheral part of the deal, it’s the whole deal.

    The electorate’s entirely correct perception about it, as has been stated by others, was the principal causal factor in the coalition’s removal to the Opposition benches.

    As a long-term Observa-observer, I’m betting your prescription doesn’t include re-instituting the old unfair dismissal provisions. However, in their absence the concept of ‘freedom of choice’ to retain AWAs is meaningless. The Ruddster is stuck in a difficult policy conundrum in ditching AWAs while retaining most employers’ ability to sack at whim – this conflict will lead to a whole lot more pages of legislation than might otherwise be the case.

  13. observa
    February 17th, 2008 at 23:38 | #13

    You’re right Hal that I don’t want to see us go back to the bad old unfair, unfair dismissal days. That has always had poor implications for permanency and now giving more marginal workers a crack at it too in the current labour market. Let’s be quite clear about what we’re talking about here. We’re not talking about structural change or falling market demand causing economic adjustment and retrenchment a la Mitsubishi car-making, although that often gets bound up quite wrongly in the argument about unfair dismissal. Well not unless you seriously think blacksmiths should be kept on the payroll until natural retirement, when Henry Ford happens along. Besides the Soviets, et al decided that one categorically, quite some time ago. We’re focussing on an infinitesimal number of dismissals, whereby presumably the firm is doing OK in the marketplace and presumably the boss or supervisor takes an unfair disliking to some poor hardworking soul(violins now please). That is dwarfed by the annual numbers of employees who up and sack their boss and fellow co-workers, with nary a thought about their replacement or how the group will manage after they leave. I’ll bet London to a brick we’ve all worked in more firms where some lazy, useless time server gets carried by the rest of the group, rather than some poor innocent being booted unjustly out the door. The public circus has more than it’s fair share of these lazy time servers, simply because noone has the incentive to give them the flick and wake their bloody ideas up. The best unfair dismissal laws you can have is a full employment economy with employers grumbling about the calibre of some of the workers they have to endure nowadays. The rest is leftist balderdash.

  14. observa
    February 17th, 2008 at 23:54 | #14

    Actually it’s more like liberal madness and they should just very topically say sorry and go and see a shrink about it. Preferably this well credentialled and experienced veteran-
    http://www.worldnetdaily.com/?pageId=56494

  15. observa
    February 18th, 2008 at 00:03 | #15

    Yeah I know, I’ve never been a big one for these shrink types, but perhaps I’ve been a little hasty?

  16. Ian Gould
    February 18th, 2008 at 00:17 | #16

    Well obviously if it’s in the World News Daily, it must be true.

  17. mugwump
    February 18th, 2008 at 01:23 | #17

    I am curious Ian, how many permanent employees do you have?

  18. Peter Pan
    February 18th, 2008 at 09:08 | #18

    To Ian Gould with respect to the statement:

    “I don’t know a single small-businessperson who thinks reinstating wrongful dismissal laws is a good idea.â€?

    This is a very absolutist statement. Actually, in the Darwinian environment in which most small businesses operate, there are some small business people that take a longer term view on things. They realise if they impose sub-standard employment terms compared with larger business, they will not be able to compete in the employment market for talent.

  19. Chade
    February 18th, 2008 at 13:37 | #19

    How do you miss the bile and vitriol in Albrechtson’s columns towards the left long enough to find content in them worth reading?

  20. Ian Gould
    February 18th, 2008 at 15:23 | #20

    Mugwump, eight currently – probably adding another soon.

  21. mugwump
    February 19th, 2008 at 04:08 | #21

    And Ian, how many times have you dismissed an employee for poor performance? And how many of those employees you dismissed for poor performance have threatened wrongful dismissal action against you? And how many times have you just given them 3 months salary to go away, rather than face the hassle and expense of dealing with a wrongful dismissal suit?

  22. Graham
    February 19th, 2008 at 11:02 | #22

    Regarding the term ‘mandate’ JQ says “there is no general reason why the views of a majority of Senators should be less legitimate than those of the Lower House”
    I believe there are at least two good reasons that suggest the converse is true! These reasons follow simply from the nuances of our parliamentary system.
    First, notwithstanding the (Constitutional)fact that the Senate has similar powers to the House of Reps (other tha money bills), it is the party with majority support in the Reps which forms the Government; inpractice, most legislation is initiated in the lower house; the accountability of the Government is tested in the lower house …
    The second point goes to ‘representative’nature of the Senate vis a vis the Reps. Equal number from each of the States; six year terms; proportional representation voting system; etc undermines any Senate mandate theory.
    To say definitively what is a specific mandate is clearly difficult, but to equate the two houses in terms of mandate legitimacy is clearly wrong.

  23. jquiggin
    February 19th, 2008 at 11:26 | #23

    Graham, on your first point, the mandate is to form a government. I agree that this implies not blocking Supply, but that’s where it stops.

    The state-based nature of the Senate is balanced by the winner-take-all nature of Reps elections. Proportional voting makes the Senate more representative than the “Reps” not less as you imply.

    Chade, I don’t read JA regularly, but I make the occasional check, and found my name at random.

  24. Ian Gould
    February 19th, 2008 at 12:58 | #24

    Mugwump. since you delight in telling us how you’ve fled the hated reviled shores of this socialist dump, I assume you answer to all those questions is “zero.”

    My answers:

    And Ian, how many times have you dismissed an employee for poor performance?

    Three

    And how many of those employees you dismissed for poor performance have threatened wrongful dismissal action against you?

    None

    And how many times have you just given them 3 months salary to go away, rather than face the hassle and expense of dealing with a wrongful dismissal suit?

    Zero

  25. Graham
    February 19th, 2008 at 14:09 | #25

    John, I suppose the essence of my argument goes to questioning your assertion equating the Senate with the Reps in terms of mandates.
    It is, I believe, an apples and oganges comparison. In both practice and voter perception the Senate does not have mandates. Additionally,the theoretical underpinnings – some of which I previously mentioned – would support this view.
    Re your point concerning PR voting v preferential systems being more representative I accept. However, that hardly makes the Senate with membership based on a fixed number per state cf to Reps 150 plus members representing separate electoral divisions across the country “more representative than the Reps”
    Whatever, the issue of mandate for the Lower House still remains problematic. To tease out a mandate for a specific policy from the aggregation of individual voter preferences that have been bundled together in a single vote is perhaps asking too much from the system.
    I have just now heard on the radio that the Opposition will no longer oppose the Government’s forthcoming ‘work choice’ legislation – so maybe some amongst us recognise a mandate when they see one!!

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