April 2023


Dial ‘M’ for mandate

By Rachel Withers
Climate Change and Energy Minister Chris Bowen speaking in the House of Reps, March 20, 2023

Climate Change and Energy Minister Chris Bowen at Parliament House, March 20, 2023. © Mick Tsikas / AAP Images

The idea that governments must not pursue policy they didn’t take to an election is political nonsense

Changing superannuation tax concessions, banning new coal and gas projects, committing to AUKUS deals… These are just a few things over the past month the Albanese government has been told by politicians past and present it should not be allowed to do, due to its lack of mandate.

“The government didn’t take any of this to an election,” whined shadow assistant treasurer Stuart Robert, after Labor decided to slightly lower tax concessions for earnings on super balances above $3 million. “So it has absolutely no mandate and is thrusting this upon Australians.”

“We can talk issues through but within parameters,” Climate Change and Energy Minister Chris Bowen said, ruling out acceding to the Greens’ fossil-fuel demands. “And the parameters of which I’ll discuss these issues is the election mandate we sought and received.”

“There’s no mandate inside the Labor Party,” former prime minister Paul Keating declared, as he tore shreds off the AUKUS submarine deal, arguing that the decision had been made without the approval of the rank and file. “No mandate for what Prime Minister Albanese, Foreign Minister Penny Wong and Richard Marles are doing.”

“No mandate,” he added a third time for good measure.

Mandates have once again become the flavour of the month, as political opponents argue over what this first-term government is and isn’t allowed to do with its power. As with those crying about broken promises, wielders of the mandate theory seek to control the agenda, whether or not they control the votes in the House and Senate. But can specific mandates really exist in our system of government? And who gets to decide what constitutes an electoral edict?

In theory, a democratic mandate is conferred upon a government by the fact that voters have endorsed its platform at an election, giving it their blessing, imbuing it with some kind of moral authority. But it’s hard to imagine a concept more slippery, more open to interpretation, and less persuasive in our partisan environment.

Australian politicians have long squabbled over mandates, spinning or spurning them as is required. As outspoken, long-serving Senate clerk Harry Evans once wrote, the dubious mandate theory “is sure to re-emerge whenever there is an election which a government can claim to have won”.

Robert Menzies was an early advocate of the idea of a lower house mandate, when his government faced a hostile Senate in 1949 – one of the first, with the voting system having recently changed to one of proportional representation.

Gough Whitlam, who was forced to call a double dissolution election just 17 months after securing government, argued that the Opposition had been denying the “clear mandate” conferred upon Labor at the 1972 election. “You had given us a clear mandate for every one of these proposals they have opposed and obstructed,” he said, imploring the people to do it again.

John Howard became known for wielding the concept like a bludgeon – never mind that he had rubbished the idea of mandates after Labor won the 1987 election (electoral mandates, after all, are in the eye of the beholder). Following his 1996 win, Howard demanded the Senate allow the Coalition to push ahead with the partial privatisation of Telstra, because it had a mandate; Democrats leader Cheryl Kernot insisted the Senate had its own separate mandate, one that called for blocking the sale. Howard later used the principle to push contentious domestic reforms, claiming his emphatic 2001 victory extended a mandate to his entire political philosophy, even though domestic politics played little role in the Tampa-centric campaign.

Further down the track in 2004, the then Opposition leader, Mark Latham, argued that the Howard government was “mishandling its election mandate” by allowing health minister Tony Abbott to broach the subject of abortion – something it hadn’t raised at the recent election. Latham’s motion on the misuse of the mandate – one of his last – was leapt upon by the Coalition as confirmation that it did, in fact, have a mandate – one that Labor ought to respect.

Of course, it’s clear that mandates are only invoked when convenient, to pursue a political agenda (we don’t see today’s Opposition extolling the virtues of mandates when the Albanese government is trying to pass policies the Coalition ran on). But the very concept is dubious, especially in our bicameral system, in which one party rarely wins control of both houses, or even a majority of the vote (Labor, let’s recall, won less than 33 per cent of first preferences). Academics and commentators have repeatedly questioned the legitimacy of mandates, arguing that it is impossible to determine which elements of a party’s platform received voters’ approval; as often as not, people vote against something, repudiating rather than endorsing policies or indeed leaders (see: Scott Morrison).

Former Rationalist Society of Australia president Ian Robinson has repeatedly debunked the idea that there could be a mandate for specific policies: not when Howard tried to claim one in 1999, nor when Tony Abbott tried to claim one in 2013, nor when Bowen tried to pre-emptively claim one before losing in 2019. “The notion of a specific policy mandate is a myth,” Robinson wrote in 2013, declaring that it was mostly used to “bully” the Opposition and independents into passing government legislation.

And while a governing party has no doubt received the approval from a large number of voters, so too have other parties and independents, who often lay claim to their own mandates, bestowed by their own voters. Indeed, this is what both the Greens and the Coalition have done on climate policy following the 2022 federal election, insisting – rightly or wrongly – that their position has been endorsed (never mind that only one of those parties saw its vote go up). Minor parties, nevertheless, have the right to speak for their voters, with the Senate under no obligation to wave through a government’s agenda. As Harry Evans asked in 2005, “if the government has a mandate, what is a parliament for?”

Ultimately, the only mandate a winning party receives at an election is the right to govern for three years, to pass whatever legislation it can get through both houses. One might argue that there is another implicit mandate: to govern in the best interests of the people, whatever that means at the time. That is a charge that fewer and fewer politicians seem interested in recognising, with far more focus on what’s in their own political interests.

So what does all this mean for the three policy areas – tax on super, coal and gas, and AUKUS – listed above? It’s curious that all three are arguments for negative mandates – arguments that the Albanese government cannot do something because it does not have the express approval of the people. This is perhaps the most ludicrous use of the mandate theory, suggesting leaders don’t have the authority to come up with policy while in office.

A broken promise would be one thing – and some have argued that is what Labor has done with its superannuation changes. But to suggest an elected government doesn’t have a mandate to govern is simply daft. Leaders need to be able to respond to changing circumstances (COVID, anyone?), especially if an action has the backing of the people – as Labor’s new superannuation changes apparently do. ​​Citizens elect politicians to legislate on their behalf; imagine if a government had to wait for an election to rubberstamp each new idea.

It’s little wonder Stuart Robert claims Labor doesn’t have a mandate when it comes to tax concessions, or that Chris Bowen is refusing to negotiate outside his supposed climate mandate. These are not things they want to see done. Does the government have a mandate to embark on the AUKUS deal, committing Australia to decades of paying billions? It may not have a specific mandate for purchasing submarines, but it certainly has the power to do it, whether Paul Keating likes it or not.

The government does not have a specific mandate for its policies, but nor does it lack one for the changes at hand. It has a mandate to govern, to pass whatever legislation it can get through both houses of parliament, ideally in the national interest. Unfortunately for Labor, this means it cannot force its policies through – it means negotiating with the parties that hold a balance of power.

As Labor national president and former deputy prime minister Wayne Swan tweeted, when arguing that other parties had to accept Labor’s mandate on its climate policy, “It’s called representative democracy. If you can’t accept or understand this basic democratic principle, don’t pretend to believe in it!”

Unfortunately for Swan, it is a representative democracy. And hardly anyone believes in the myth of the all-powerful government mandate anymore, if they ever did.

Rachel Withers

Rachel Withers is the contributing editor of The Politics.


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