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That’s not how democracy works, Julia

Tony Abbott’s pledge to ditch this carbon tax is entirely justified on political and constitutional grounds

22 October 2011

11:00 AM

22 October 2011

11:00 AM

Tony Abbott’s pledge to ditch this carbon tax is entirely justified on political and constitutional grounds

Our Prime Minister has pushed her carbon dioxide tax through the House of Representatives. It will certainly also make its way through the Senate on the back of Green party support. So we know it will become law and take effect midway through next year.

But here’s the interesting question. Gillard is also asserting that the Opposition and Abbott will never be able to remove this new law. It’s here forever, she implies. It can’t be repealed, she suggests.

Let’s take a look at that claim, because on the face of things it is palpably ridiculous. We live in a democracy. The core notion of democratic decision-making is that we count each citizen equally and allow him or her to vote for representatives who will decide all issues in society, subject to federalism and some issues being for the States.

That means that we leave each generation to decide social, moral and political issues for itself. We don’t suppose that our generation has mysteriously been granted an extra dose of moral and political perspicacity or some magical pipeline to God so that we get to make decisions that will bind our kids and grandkids and
great-grandkids.

That sort of ‘we know what’s good for you bums better than you do for yourselves so we’re taking this decision out of your hands’ type paternalistic thinking runs diametrically opposed to even the most faint-hearted commitment to democracy
as a procedure for resolving disagreements in society.


So any assertions by a Prime Minister in Australia today that she can assure us that a future government won’t be able to do X, Y or Z looks implausible in the extreme. At least that’s the case if you take the claims literally.

But there’s another possibility. Maybe Gillard is not saying a future Coalition Abbott government cannot repeal the carbon dioxide tax in theory; rather she’s saying that it will be too difficult to do so in practice.

There are two intermingled assertions here. One is at the level of procedure. Gillard could be saying that with bicameralism in Australia Abbott might win the next election in the lower house but he still won’t control the Senate, and the Senate, with a future Labor party and the Greens working together, will block any and all attempts to repeal this carbon dioxide tax.

But that’s almost certainly wrong too. Of course if Gillard wins the next election the tax will stay in place. But on the more plausible assumption that Abbott wins, the scenario Gillard is explicitly envisioning, then it is clear to me that he will have little difficulty in removing this tax.

Here’s the scenario. In an election fought explicitly on removing this tax, Abbott wins, possibly by quite a margin. On election night (this is how I would do it were I Abbott) he tells Australians that he is calling back Parliament immediately and that he is going to have the House of Representatives pass repealing legislation. And that it will then go to the Senate and that if the Senate blocks it, the House will pass it again and there will be a double dissolution election as soon as possible.

 Abbott will make it clear that he doesn’t wish for a double dissolution but that if that is what is required for the people of Australia to prevail then he and the Coalition will take those steps as promptly as possible.
 
Under that scenario it is likely that a chastised Labor party would roll over like a dead dog in my view. Gillard would be gone, and the thought of co-operating with the Greens to frustrate a clear majority desire to repeal this law would be something less than appealing. Or at least that’s my reading.
Yet assume I’m wrong and the Labor party forces a double dissolution election half a year after a drubbing in the polls. Frankly, it’s hard to see any result from this other than Coalition control of both the House and the Senate.
But even if that’s wrong too, and the Greens and Labor keep a majority in the Senate while losing again in the House, the legislation would then move to a joint sitting of both houses and almost certainly have the numbers to pass. (That’s why the House was designed to have twice as many MPs as the Senate, to give the more democratically legitimate chamber the final say in a joint sitting.)

So Gillard is wrong there too. But that still leaves one other possible meaning to her claims about unrepealability. Can we take her to mean that the carbon tax legislation has been deliberately designed to be super-expensive to unwind? It’s like a corporate poison pill. You hand out property rights willy-nilly and promise money left, centre-left and centre, to such a degree that an incoming government can’t afford to repeal the legislation and pay out all those newly minted monetary claims.

In responding to this final understanding of the Gillard ‘you can’t repeal this’ line, I’m tempted to point out how disgracefully undemocratic it is for a leader who stood before Australians just before the last election and made an unambiguous promise not to do what she proceeded to do immediately after the election. And how it is doubly so to now gloat that her actions will be impossible to undo after
the next election.

Personally, and regardless of the party leader, I would vote against any political party situated anywhere in the political spectrum that was so contemptuous of democratic decision-making. At some point how you make decisions matters more than what they are, though I concede that for some of our inner city chardonnay-sipping elites all that appears to matter is getting their own way.

But leave even that aside. An electorally victorious Abbott will surely pay whatever is needed to unwind this law. Yes, he will continually remind voters how much it cost to do so. Yes, he will never miss an opportunity to lay this at the feet of the Labor party. Yes, he may look for ways to recoup some of the compensation dollars.

But there can be no doubt he would do that. And so there can be no doubt that Gillard is wrong in every single sense I can think of when she says this law can’t be repealed.

More to the point, all of us who are democrats should be mightily glad that we live in a country where today’s ruler cannot lock in tomorrow’s. These things are for tomorrow’s voters to decide, not today’s Labor and Green parties.

James Allan is Garrick Professor of Law at the University of Queensland.


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