49th Alfred Deakin Lecture
Wednesday 29 August, 2018
David P Derham Theatre,
The University of Melbourne
(check against delivery)
As a former trustee, it is a little daunting giving this address, the more so as a joint event with my colleague and friend and fellow former trustee, the Speaker.
The times call for a strong voice to articulate those approaches and values that have made our nation the success that it undoubtedly is, that have delivered us one of the world’s most successful democracies and recent decades of unbroken economic prosperity – even though at the moment they seem further away than they should.
The rationale for parliamentary democracy and one of the threads of the success of ours has been liberal-driven compromise in pursuit of our values, and use of the parliamentary process to generate consent for policy, as well as implement it.
By compromise I do not mean simply the lowest common denominator, a simple policy of common ground as a summary of current views. It is not making a deal for the sake of it.
I mean the prosecution and implementation of policies that have addressed the concerns of the majority of Australians;
Accepting that politics is not winner-take-all with one narrow view solely prevailing; and,
Most importantly, including compromise within the political parties and Parliament as the forum for this to be achieved and delivered.
It is understanding that a step forward, even smaller than hoped for, is progress, and allows you to move onto the next challenge or priority.
This approach began prior to Federation.
It is well established that our constitutional arrangements are themselves the result of detailed and lengthy compromise between the interests of larger and smaller colonies, to nominate just one fissure of the federal movement.
The result is a Westminster system of government grafted onto a federal system with a uniquely strong bicameral system and a constitutionally constrained central power.
This structure even today leads to aspects of politics in Australia that are unique amongst nations to which we often compare ourselves, particularly in regard to the role of the Senate.
In the early years of federal government, Deakin personified the use of Parliament as a forum to implement policy and generate and maintain popular support.
Particularly in his first two administrations, governing without a parliamentary majority, Deakin managed to deliver the agenda about which he was passionate – compromising and navigating the difficult politics of the first decade prior to The Fusion.
As our first Attorney-General, second Prime Minister and dominant figure of the era, Deakin put not only flesh on the skeleton of the constitution, but its nervous and cardio vascular system as well, via the policies that defined the new country and the relationship of citizens to the new government.
Not only did he erect the institutional architecture of the commonwealth itself, the policies he implemented defined the nation for the next seven decades.
As in the UK, the argument against Gladstonian free trade was victorious; protection was seen as a means, amongst others, to address economic class tension and deliver greater economic utility and fairness. Arbitration took on a role rarely if ever seen elsewhere as its economic policy fraternal twin.
As Judith Brett has outlined in her recent biography, Deakin negotiated an unstable political system throughout this period and, in a notable parallel given current circumstances, she points out there were seven changes of Prime Minister after Edmund Barton was sworn in as the first Prime Minister, only the last of which was the result of the government clearly losing an election, to Andrew Fisher in 1910.
Outlasting him, his parties and his successors, the policies of Deakin have variously been described as the Australian Settlement, or the Deakin Settlement.
Only in my teenage years were the final elements of these interned, with the end of centralised wage fixation, arbitration and explicit protection as defining elements of our economy.
Given his recent reconsideration in the Great Republic from which our founding fathers drew so much constitutional inspiration, I have long thought we should consider Deakin as being as significant as Alexander Hamilton.
Credit for drafting the US and Australian Constitutions primarily went to others: in the United States to James Madison; in Australia, to Sir Samuel Griffith.
But they were both leading prosecutors of the case for the adoption of the new national constitution, both seized the levers of power and built the new nation, dominating institutions in the early years.
Deakin is without parallel in our nation’s formative era, he brought the Commonwealth to life.
And while times have moved on and we no longer have his ideas at the centre of national life, his approach and the means by which he delivered these is, in my view, more relevant than ever.
The idea that negotiation and compromise in furtherance of an agenda is a positive.
That sacrificing some objectives for others, prioritisation and trade-off, is not giving up one’s principles, but can represent progress in implementing them.
The liberal agenda that has delivered for Australia has always entailed compromise to navigate political and parliamentary obstacles, or to generate wider public support for initiatives.
Finally, that the parliamentary process that sees broad support for an initiative is not a sign of compromise going too far, but can develop a national consensus.
It is worth highlighting here that this approach is not to diminish the role of activists. Those who hold public office can be as motivated by values, but our role is different to activists. Deakin of course was both.
It can be best summed up in the words of a founding trustee and Patron of the Trust, David Kemp.
In responding to George Brandis’s 2009 Deakin Lecture, he said “It is very important…to move the debate beyond values to policy. Policy is when Liberals have to determine what their values mean in practice.”
That is as good a summary as any of the subtle difference of role of an elected official representing and implementing liberal values, and those outside who rightly seek to influence wider debate.
Too often in recent times, compromise and negotiation is positioned as somehow in conflict with values, when it is actually an important part of achieving them in practice.
Not only does an approach open to compromise allow a government to progress the agenda it is elected upon, and thereby validate elections, it also generates consent for the establishment and settlement of those policies.
In Deakin’s terms, they made the resulting policies more than simply partisan, it made them the product of the nation, of the entire political system.
Australia’s unique governing arrangements are a product of compromise – and they draw a direct line to the challenges we face today.
The power of the Senate itself is a result of compromise.
In short, its composition and legislative authority are the product of the tension driven by fears of the smaller colonies being swamped by Victoria and New South Wales and the competing commitment to popular government, where the popularly-elected and composed house formed government and retained the legislative and financial initiative.
This sees our Senate have powers that are foreign to other upper chambers in parliamentary systems.
Our constitution was drafted, ratified and then legislated prior to the 1909-10 budget crisis in the UK, and the great clash between the Commons and Lords. A century ago the Lords lost powers the Senate takes for granted today over financial matters, and since then it has effectively lost its legislative veto.
Whether a constitution developed a decade or two later would have granted the Senate such powers is a moot point, but it is worth noting that in all our states the Legislative Councils have had their powers over supply and money bills constrained, in some cases legislative power itself has been limited, and in further cases like Queensland or fellow Westminster nations like New Zealand, upper chambers have been abolished completely.
The power of the Senate over supply led to the clash of 1975. And while it is unlikely but not impossible for that conflict to occur again, it is the Senate’s power over all legislation that is much more significant.
The constitutional strength of our Senate is a defining feature of our democracy.
Our Senate might not regularly block supply, but budget initiatives and measures, critical to government, are another matter altogether.
In the first decade, the Deakin era, prior to the formation of the modern party system, negotiation was necessary due to the composition of the House of Representatives. The Senate was not a prime player.
Nowadays, while we have had the two closest elections in my lifetime in recent years, the norm is likely to remain that the House of Representatives is not the place where this negotiation must occur – it is in implementing policy via legislation through the Senate.
There have been several phases in the life of the Australian Senate, and this is relevant because of our constitutional arrangements and how the role of the Senate has evolved through these.
Prior to 1949, the electoral system did not guarantee stability of the Senate, nor regularly see crossbench parties with the ‘balance of power’ between government and opposition. Change to a single-transferable vote model of proportional representation in 1949 began major evolution in the composition and activity of the Senate over time.
The development of the modern committee system in the late 1960s and 1970s saw the Senate develop into a more familiar form, operating as a stronger house of review.
The arrival of the Australian Democrats in 1977 saw the beginning of the composition with which we are familiar nowadays.
Since July 1981, the government of the day has only enjoyed a Senate majority for just over two years – from July 2005 until the defeat of the Howard Government in November 2007.
And I contend that since the demise of the Democrats, the rise of the Greens and now a more diverse crossbench, the role of the Senate has changed again.
The Senate has partially evolved from a place of process seeking to negotiate the passage of legislation, to the Senate as a stage for expressing alternative views, and even occasionally seeking attention.
From being a primarily house of review, to one that can often be a forum for entrenched positions, or explicit unrelated trade-offs, this is more familiar to the operation of the United States Senate, where consent for legislation is generated through concessions on unrelated policy objectives of individual senators or small parties or groups of senators.
Recent examples in the public domain include firearms registration, euthanasia and funding of apprenticeships all being discussed as trade-offs for support on unrelated legislation.
This change has brought the role and function of the Senate into question from governments of both parties.
For most of the past century, hostility to the power of the Senate has been from the Labor Party.
This predates the events of 1975, and reflects the hostility to powerful upper houses that Labor experienced at the state level, sometimes with an explicitly more restricted franchise than the popular houses.
Of course, this has never been the case for the Senate, which has always been elected on the same basis as the House of Representatives.
But Labor’s hostility has always been partly driven by the fact that the labour movement and its political wing was not a driver of federation and our constitutional settlement.
In recent years, hostility to the Senate has also been expressed by its traditional defenders, Liberals and self-proclaimed conservatives, frustrated at the Senate in its current form blocking substantial parts of a legislative agenda which, to be entirely frank, were both part of an election manifesto and not.
Whether it was the Howard Government’s floated proposal to amend the constitution to allow a joint sitting of the houses without an intervening dissolution of both houses, or the words of a former Prime Minister who claims a Senate can lead to a government in office but not in power, this frustration is now expressed by executives and leaders of both parties in government.
That said, electoral results in the Senate betray the different position of voters.
An increasing minor party and independent vote is a trend in elections for both chambers, although consistently larger in the Senate. This is not surprising given the electoral system used that, even with changes recently implemented, provides both an opportunity and dividend for such voting patterns by citizens.
As a senator who has been in opposition and a minister in government, I haven’t seen any popular outrage that shares the frustration occasionally expressed by those of us in the executive.
Despite election results delivering changes of government, “the Senate stands”, maybe not quite in the way Robert Caro describes it in the United States, but as close as can be in any Westminster world.
Staggered elections and the electoral system make the Senate a potent counter majoritarian force, partially immune from the electoral tide that sweeps a governing majority to power in the House of Representatives.
When I reflect on the achievements of governments I can directly recall, some of the greatest successes have been through compromise and negotiation, or the use of the parliamentary process to generate consent and acquiescence, if not always loud support, for contentious policy.
The idea that compromise is wrong, that negotiation to achieve one objective and move onto another, represents a lost political opportunity for a contest or ‘selling out’ is not one that has been rewarded in Australia.
Who would think that the country would be better off if John Howard and Peter Costello had not negotiated successful passage of the GST following the 1998 election? Or that we would be better off still arguing about it?
Peter Reith’s reforms to workplace relations, the product of compromise with the Democrats, no natural fans of labour market deregulation and now sadly wound back, were a driving force in our economic boom that saw record low unemployment, productivity growth and substantial real income growth for the first time in more than a decade.
Over the last two years, tax reductions, industrial relations changes and even contentious trade agreements have all been legislated through negotiation across the Senate.
Similarly, a parliamentary process itself can generate consent even where compromise or negotiation is not necessary.
The landmark Howard gun law reforms were contentious for part of the population, and placed a burden on a small number who had committed no offence.
But the overwhelming support across parties, the parliament and people ensured that, in the phrase of Deakin we created ‘organic Australian policy’ that accordingly accrued a higher status.
So why has this become more difficult in recent times?
Media fragmentation cannot be ignored in considering this.
Whether it drives electoral behaviour, simply reflects the diffusion of the once powerful gatekeeper role of the media or reflects diverging experiences and perspectives, or more likely a combination of these factors and more, even senior media figures consider that it can’t be just a coincidence that political fractiousness is increasing at the same time as the modern mass media model of the twentieth century that we all shared in is breaking down.
John Howard and Tim Fisher bore an enormous political cost amongst many of their traditional supporters when instituting national gun laws, but they weren’t relentlessly attacked as “abandoning the base” simply by virtue of challenging supporters, even on such a difficult issue.
But I want to turn to the role of Parliament.
For as long as the Senate is a forum or a stage for the expression of demands that make compromise more difficult, our legislative process will not function as it needs to.
The Senate needs to focus more intently as a forum for compromise, rather than assaults on compromise as “sellout”, whether that be publicly, or inside political parties.
There are some legislative successes as I have outlined above, but these represent only a part of a government’s necessary program.
I am not a fan of extended terms for parliament, I don’t believe they would address this problem at all, and I remain a sceptic of granting more power to executives.
Governments need to be able to legislate the agenda they take to elections, otherwise we will see frustration at democracy increase.
Democracy needs elections to work, people need to see their vote matters and does change things, in order to avoid the frustration we see in other democracies.
But at the same time the public, in my view rightly, do not want to trust the fate of a nation to a handful of people in a ministry that usually control a single chamber of parliament in one of the most tightly disciplined party systems in the world.
There need to be consequences to electoral outcomes, with the balance inherent in our strongly bicameral system that grants people two ballots, one to form government and another that explicitly acts as a check upon it, albeit not necessarily in the state-based form originally envisaged.
I recall after he became Prime Minister, in the midst of the campaign over Fightback!, Paul Keating made it clear that if the Coalition won the election, Labor would let the GST through the Parliament.
Now I have no idea whether a newly-defeated opposition would actually have complied with that, but I distinctly recall it crystallising the electoral choice. And the final decision was made by the people.
An approach that facilitates this will also lead to a more honest political debate – with explicit consequences from election results, and the implementation of policies subject to electoral determination and the consequences of these being judged in future years.
So what is the solution?
Former senator Stephen Loosley beat me to the punch suggesting adopting a principle such as the Salisbury Convention that has been in the place in the United Kingdom since the late 1940s.
This explicitly states that the Lords will not block a policy that is explicitly part of a party’s election manifesto.
Any such arrangement in Australia would need to be by agreement between the parties, ideally all of them, given the constitutional power of the Senate and the fact it has a direct electoral mandate, unlike the House of Lords or a comparable body such as the Canadian Senate.
To make it work here, there would also likely need to be uniquely Australian characteristics, such as the timing of such announcements, given that millions vote weeks before polling day itself, and even full publication of policy details and explicit costings by the independent Parliamentary Budget Office to ensure the details were clear and not subject to obfuscation.
It would of course require an understanding that by not blocking a government’s program, senators are acquiescing rather than supporting.
It is often a source of friction when the members of the House vote against a policy then specifically require their Senate colleagues to vote for the same measure or to not oppose it, despite it being opposed vociferously in the other place.
As senators are often closer to party members, this can pose unique challenges.
This behavioural change in Parliament may lead to a better understanding of this principle in parties and the electorate, knowing that casting a ballot will have a specific consequence in these matters.
A second alternative is something we have historically not been as willing to use as in the United States, although it has been used in recent years in parts of national security law – the application of sunset clauses in legislation.
These would ensure that issues are debated again at a future time, and overcome the fear that a new status quo is established that is very difficult to unwind no matter an electoral outcome, as arguably occurred in the UK following the Atlee nationalisation program.
These could be undertaken for a range of policy areas that are contentious, to ensure an electoral and democratic assessment of policy at a future date.
Those who sometimes complain about the written and difficult-to-change constitution being a ‘dead hand’ should keep this in mind as there is no reason to assume policies legislated decades ago do not take on the same status.
But this would require an acceptance by politicians that matters are constantly subject to debate; that a policy settlement lasts only as long as it retains public support.
As a liberal and democrat I believe that providing for public debate strengthens our society, and the position of the values that drove me into politics.
Whether there are those, like me, who view state activity with scepticism, or others who propose an expanded role, this is rightly for democratic determination. Parliament has to be at the centre of determining this as the expression of popular will.
Of course, this doesn’t mean a simple one-off electoral majority can disregard the interests of minorities, but our constitutional arrangements provide more protection for this than many others – a federal system, an entrenched judiciary with constitutional authority and a Parliament that allows voters to place their own democratic check on a governing majority in the House of Representatives.
But democracy needs to produce outcomes that respect public wishes, desires and priorities.
The role of parties and those of us who nominate and seek election is to generate support for our means of addressing public priorities.
Failing to do so will lead to people turning away from democracy.
Already there are those who propose citizen juries and the like to replace democratic decision making with a sample of the correct quotas of various identities to make decisions on behalf of the wider community.
To grant a demographically representative sample of citizens the same mandate as all citizens acting via the ballot box represents a real threat to the liberal value of an individual and to our democracy, but one that is gathering some momentum.
Our constitutional arrangements have served us very well, from the days of Deakin until today.
But particularly when it comes to the evolving role of the Senate, some thought needs to be given to ensuring it is a facilitative mechanism.
And part of that is renewing a spirit of compromise and enabling democracy to deliver, as this approach did when founding and building our nation.
[ENDS]