Garrick Professor of Law at the University of Queensland James Allan addressed a recent gathering in Budapest, where he introduced his hosts to the sad peculiarities of a nation which, to cite but one oddity, is built on coal and gas yet inflicts ruinous electricity prices on one and all
This address was delivered to the Danube Institute in late May, 2018
Back when I was a teenager, so a good few years ago, I used to love reading Alistair Maclean novels – he was a huge bestselling author and wrote the sort of thrillers which included The Guns of Navarone and Where Eagles Dare and Ice Station Zebra, all of those later being made into big Hollywood movies. Maclean’s first-ever spy thriller, The Last Frontier (I think it was titled Secret Ways in the US), was set in Communist Hungary. He wrote it little more than half a century ago. MacLean’s protagonist is a British secret agent on a wintertime mission inside Hungary at the height of the Cold War. He is supposed to rescue an elderly British scientist who is being held by the communist government against his will. Maclean paints a cruel and highly efficient Hungarian Secret Police. The British agent is helped by a heroic Hungarian underground led by the mysterious Jansci and his friend “the Count”.
There are all sorts of twists, turns, and betrayals of the sort in which MacLean specialized, but what stayed with this particular young Canadian reader was the awfulness of life under the Communists.
Of course you will all know the truth of that far better than I, so I simply thank you for tonight’s invitation and for the chance it has given me to see this successful democratic country some half century after Alistair Maclean was writing about it back when things were a lot less cheery.
It is also a pleasure to be here with such sensible people. I’m reminded of the story of the conservative voter, call him John or better yet Melissa, who came upon a genie. Now Melissa asked the genie if she would grant Melissa three wishes. ‘Yes , of course’, said the genie ‘but only if you’re feeling generous and magnanimous. You see whatever you wish for I’ll give you, that’s true, but I’ll also give every far left Democrat and loony left Labour Party voter in the US and UK two of it. All of them will get double what you get. So what’s your first wish Melissa?’
Melissa thought long and hard and then asked for a million dollars.
‘Okay, you get a million’, the genie told Melissa, ‘but remember, every hard left voter gets two million. What’s next?’
‘For my second wish’, said our Melissa, ‘I’d like a top of the line German sports car’.
The genie blinked, and it was done. ‘But remember’, reminded the genie, ‘every far left voter in the US and Britain now gets two German sports cars. Okay, so what’s your third and final wish?’
‘Well’, said Melissa, ‘I’ve been thinking about that very carefully and I’ve realised that I’ve always wanted to donate a kidney’.
My assigned task tonight is to give you an overview of Australia’s current political scene, maybe with a bit of context from around the other main English-speaking democracies. So let me give a bit of that context pre-emptively by reminding you all that US President Donald Trump in his short tenure has already pulled out of the Paris Accords on global warming; he’s moved the US Embassy in Israel to Jerusalem; he’s killed the Iran deal; he’s appointing interpretively conservative judges down the line; he’s ushered in big, almost massive, tax cuts. Is there anyone who thinks any mainstream Republican politician – had he or she been President – would have pulled out of the Paris Accords? Moved the Embassy to Jerusalem? Killed the Iran deal? I can imagine a Ted Cruz or a Scott Walker maybe doing one of those. I can’t believe anyone at all other than Trump would have done all three, though all were campaign promises. Sure, maybe there is a longer list of Republicans who would have delivered the massive tax cuts, but only maybe.
My point is that Trump is a disruptor. (And let me lay my cards on the table and tell you as I said in print before the US election that had I been an American I would have voted for Trump, which makes me rarer than the dodo bird as a law professor. Trump’s press coverage has recently been documented to have been over 90 % negative. In law schools around the English-speaking world it would be 98 % negative today, down a tad from before the election.)
But if you happen to think the political class has become pusillanimous and too self-serving, a good dose of disruption may well be called for. And here’s my larger point. In the Westminster world of the British-style parliamentary democracies (think the UK, Canada, NZ, Australia and more) this sort of disruptive force getting to the top of the political heap is near on impossible to imagine. Trump would never have been able to become Prime Minister in Australia, or Canada, or Britain. And I don’t mean people wouldn’t have voted for him as leader of a major party, though in those jurisdictions that may be true too, I mean the parliamentary system would have made it impossible for him to get into that position in the first place. The US Presidential system with today’s version of its primary system makes it possible for a wild card candidate to finance his own campaign and in effect take on the entire hierarchy of that same party. You wouldn’t bet such a wild card campaign would work, well not unless there was deep dissatisfaction with the party hierarchy. But it’s a possibility.
By contrast in a parliamentary set-up it is simply not possible however unhappy voters on one or other side of the political divide might be with their party establishment. Remember, in a Westminster system to become PM you have to get elected to the legislature and lead the winning party in an election. And you need to take most of your legislative colleagues with you to keep your majority in the parliament. Even if you believe half or two-thirds of them are, say, ‘Conservatives In Name Only’ you still need them at least as much as they need you.
And that brings me to Australia. My wife and I arrived there at the start of 2005. John Howard was Prime Minister leading the right of centre Liberal party in coalition with a small country or National Party. Howard was an immensely successful PM, probably Australia’s second greatest PM. At that time Australia had no government debt. Zero. Zilch. No debt at all. Other than perhaps Hong Kong or the odd oil sheikdom this was unique. Howard was a gentlemanly conservative with classical liberal inclinations, although not so unworldly that he would totally refrain, now and again, from splashing a bit of cash around. And he was a very good retail politician. But he had been in office as PM for over a decade by the election of 2007, and had been in politics for ages. During that election campaign, and in its lead-up, the left wing Labor party promised up and down that it would be economically conservative. It would be Howard but with a heart. And so the Labor Party’s Kevin Rudd won – with the bit of luck for him that the year 2007 allowed him to campaign with the slogan ‘Kevin 07’.
RUDD, it turned out, was a disaster. Just about everyone in Australia regrets the outcome of the 2007 election. Spending went through the roof, in part because of the 2008 global financial crisis but equally because Labor wanted to spend big and this was a good excuse. So spending blew out. Then there was all the politics around supposed refugees coming by boat (Howard had stopped them and Rudd more or less let them come flooding in); and there were the fights over carbon dioxide emissions and a possible carbon tax or emissions trading scheme. Though he only ever trailed in one poll his own party knifed Rudd, in large part due to the ferocious effectiveness of then Opposition Leader Tony Abbott (who had replaced Malcolm Turnbull as opposition leader because the latter would not fight Labor on a carbon tax and the politics of global warming) and in greater part due to the sneaky plotting of his successor, a union lawyer faction operator.
Who was this? Well, Rudd was replaced by his party (the voters had no say) by Australia’s first woman PM Julia Gillard. Many people today would say that Rudd had been one of Australia’s worst-ever PMs. Gillard proved to be worse. She was an unmitigated disaster for Labor, though like Hillary Clinton she has made a post-politics career of complaining that it was all because she was a woman and because of deplorable-like segments of voters. Gillard was so bad that just before the 2013 election the Labor party (and again, this was all done by the elected MPs over the heads of the members of the party), well, they ditched Gillard and replaced her with the previously knifed Rudd. He then took Labor to the 2013 election and lost, but there is no doubt he lost by less than Gillard would have lost by. If you’re counting that’s two political assassinations in a couple of years, the sequence going Rudd-Gillard-Rudd.
The winner of the 2013 election was Tony Abbott, a Jesuit-educated social conservative Catholic PM. By now Australia’s budget trajectory was awful and Mr. Abbott wanted to rein it in. He also had a number of other campaign promises to legislate for. But despite winning a relatively massive mandate and election win, Abbott had incredible difficulty doing anything much at all. Yes, he had signature wins in stopping all the boats full of supposed refugees; he saw to it that the boats were completely stopped – because he simply told the head of the navy to turn them around, come what may. Before the election Labor and the public broadcaster had been claiming it was impossible to stop these boats. Abbott proved them wrong. And he repealed the Gillard introduced carbon tax. But everything else was blocked by the Upper House Senate.
Here’s what you need to know about Australia’s legislature – it’s bicameral and has an incredibly powerful Upper House, one of the three most powerful in democratic world along with the US and Italy (the latter recently trying to curb its Upper House but failing due to the EU overtones). The resemblance of Australia’s Senate to the American one is no accident because Australia’s written constitution, one of the democratic world’s oldest by the way, dating back to the very beginning of the 20th Century, is largely a copy of the US Constitution. And like the US, the Senate in Australia though elected has a good deal fewer democratic credentials than the lower House from which the PM must be chosen. The Senate works on a federalist basis with equal numbers chosen per State regardless of a State’s population (so voters in some States have votes effectively worth 12 or 15 times more than voters in other States – not as egregious as the US where Californians voting for the Senate have a vote worth about 1/76th of those in Wyoming voting for the Senate). This problem in the Senate is compounded, made worse, by the use of an idiotic proportional STV voting system used for Australian Senate elections, one not unlike Ireland’s. Anyway, one effect is that people garnering a couple hundred first preferences can sometimes end up being elected to the Senate. And this Australian Senate is so powerful it can block anything, unlike in Canada or the UK. It can even block money Bills. And block all sorts of things, including budget items, it did. All sorts of things that Tony Abbott had taken to the election and won a mandate on were blocked by the Upper House. He wasn’t able to cut spending. He wasn’t able to repeal hate speech laws. The Senate just wouldn’t let him. The Opposition Labor Party and the Greens completely refused to recognise any election mandate, and a handful of independent Senators were against anything that hinted at being ‘tough medicine’. So the Senate was a huge problem.
And then in September of 2015, only two years after delivering the party a huge election win and a substantial majority in the Lower House of the legislature, the House of Representatives, the left-wing members of Mr. Abbott’s own supposedly right-wing party (the Liberals) then executed a coup against him – again without any input from voters generally or from members of the Liberal party who would definitely have supported Abbott. If you’re counting that’s coup number three in Australian politics in about 8 years. To say Australians had become cynical about the political class is putting it mildly.
Now the man who deposed Abbott (and whom we now know had been plotting to do so for some time) was the man Abbott had earlier deposed as Opposition Leader, one Malcolm Turnbull. Turnbull you can think of as a sort of Angela Merkel, albeit he’s better looking and a lot richer. Turnbull’s a centre-lefty with no strong convictions (early in his life he mooted running for Labor) other than a sort of strong commitment to climate change action. If he had had to win a vote of the Liberal Party membership to become leader, well, he would have failed. The party base would never have picked him. But he was a successful business man, very rich, but in my view the most left wing leader of this supposedly right-of-centre Liberal party ever. He’s a sort of Davos Man crossed with Angela Merkel’s ‘pragmatism’ but without her retail electoral instincts. The taxpayer-funded public broadcaster, the ABC, which had attacked Abbott relentlessly, loved Turnbull. (I think you’ll all understand why, given he was as left as the leader of the Liberals could possibly ever be.) That said, the base of the Liberal party – the paid up members – hated him. But all he had to do was to convince a majority of sitting MPs, of Liberal Party legislators, to knife Abbott and choose him instead. And he did, through a well-executed coup. Once in place, Turnbull’s strategy was to move the party left, shrink the political divide, give up on trying to get difficult matters through the Senate and rely on what he saw as his own charm and business nous. If he’d called an immediate election after the coup I think he would have won a huge mandate. But he waited. He hesitated to pull the election trigger. And he became more and more unpopular. It turned out his charm wasn’t what he’d thought it was.
In the 2016 election that he eventually had to call (because Australia has a three year election cycle) Turnbull took the massive Abbott majority and squeaked home by just one seat. On election night Turnbull was so shocked as the losses piled up and by the reality that he might even lose the election that he took hours and hours to come out from his house to give a short Leader’s speech thanking the volunteers and the rest, which by convention is always done much earlier than that on election night. Worse, the eventual Turnbull speech was a graceless and self-pitying one at that.
Pretty much immediately since the 2016 election Turnbull and the government have been behind in the polls. Recently they hit 30 losing polls in a row, which was significant because this was the nominal reason Turnbull had given for knifing Abbott – that Abbott was not sufficiently popular to have a chance to win the next election. That claim has come back to haunt Turnbull himself as now the losing poll tally for him is up to 32 losing polls and looks to keep rising. The Liberal party room or caucus – the elected MPs in the Liberal party who have the sole power to choose their leader – are like a deer in headlights. They know another political knifing would look awful; but they suspect they’ll be slaughtered with Turnbull at the helm come the next election. Many of the long-time Liberal party members hate Turnbull. It’s pretty clear the Liberals will even have trouble getting the usual party volunteers to help out with the election campaign and to volunteer on election day because, as I said, the preponderance of hard core party members loathe Mr. Turnbull. Plus, the caucus of this supposedly right of centre party is basically split into thirds. One third of Liberal Party MPs is conservative. One third is a sort of progressive lefty mix, not at all socially conservative and not at all against Big Government spending, but with a dislike of unions. For many voters like me they don’t look remotely right of centre. The other third of Liberal Party MPs floats between the two others, mostly just hoping to keep their jobs and pretty ideologically flexible – if I can put it that way. Oh, and I suppose I should add that a good many of these elected Liberal Party legislators – all nominally in the same political party remember – basically can’t stand each other.
Now let me step back for a moment and give you a more faraway picture of the political scene in Australia. You can think of the two main political parties in Australia these days in these terms. The left-wing Labor party is no longer the party of redistribution of wealth so much as it is the party of public service bureaucrats, university lecturers (and believe me, I see these sort of progressive lefties every day in my working life in a university law school); it’s the party of all those who staff the vast edifice of the various human rights brigades (so most definitely the preponderance of lawyers, and a big majority of young lawyers), and it’s the main choice of party for those who genuflect at the altar of internationalism generally. As a digression, and I refer now to Australia, but these sort of Labor-voting people, with the Greens, were all appalled by the Brexit vote, as was Prime Minister Turnbull, let me note. I, on the other hand, was delighted.
Then on the other side of the political divide Mr. Turnbull has done his best to turn the Liberal party into the party of big business. Davos Man types. Hence on social issues and on the desire for government to spend big you’d be hard pressed to put a piece of paper between the views of Labor and the Liberals. The Liberals have in effect taken off the agenda, or disenfranchised, those who want to lower immigration, cut government spending, stop all the renewable energy initiatives that have driven up power costs significantly, and more. Sure, the Liberals retain a great dislike of the unions, and see themselves as more economically responsible – though that’s debatable I have to say – but they’ve moved a good deal left under Turnbull to close the ideological gap with Labor and hope that this will see them win.
To repeat, with the two main political parties occupying a large chunk of the same terrain, there are an awful lot of voters who feel their views are not represented, save perhaps by small parties with no chance to win. I would count myself as one such voter. So if you are for scaling back immigration – because Australia has the world’s highest per-capita acceptance of immigrants – neither main party agrees with you, though former PM Tony Abbott does and as he has stayed in Parliament on the backbench he regularly voices this view. Many hard core Liberal Party members love him for this.
Likewise, if you think the full-blooded measures taken as regards limiting carbon dioxide emissions in Australia and vigorously promoting renewable energy are nothing short of incredibly stupid – well again, neither party is with you. Turnbull is a true believer and cannot bring himself to differentiate the Libs much from Labor in terms of reining in renewables targets or trying to get a coal-fired power plant built. Both parties are heavily into renewables, are zealots about fighting the good fight on global warming and are seemingly insouciant about the costs. Let me give you some context. When my wife and I arrived in Australia in 2005 it had the democratic world’s cheapest energy costs. Today it is just about the highest. This is wholly the result of decisions taken by the political class and despite everyone (in their hearts at least) knowing that even if Australia went back to the Stone Age tomorrow with next to zero emissions these gestures would still only reduce what the increase in the world’s temperatures would otherwise be by zero point zero something or other. It’s statistically meaningless, everything that Australia does. It is virtue signalling, moral preening, unless you happen to believe that the world’s Chinas, Indias and USs will look at Australia, marvel at its emissions reductions sacrifices, and fired by the desire to mimic Australia opt to stop building coal fired power plants – because they notice that Australia has. It’s laughable. Former Prime Minister Abbott makes this point too. He wants to wind back the aggressive renewables target and start building coal-fired electricity plants. Turnbull hates him for it. In fact, it’s fair to say that the two men despise one another.
Meanwhile oozing around the elected Parliament since the last election in 2016 has been a truly bizarre constitutional crisis. Recall that I said that Australia has the world’s biggest copy of the US Constitution. To a great extent we have the original Madisonian Constitution, the pre-bill of rights model, albeit with a Swiss-style amending formula. One odd, non-US inspired provision is s. 44 bearing on who is disqualified from sitting in Parliament. This has been constitutionalised, rather than just left to an everyday Act of Parliament. Along with those guilty of treason, or undischarged from bankruptcy, s.44 disqualifies ‘any person … under acknowledgement of allegiance, obedience, or adherence to a foreign power, or [who] is a … citizen or entitled to the rights … of a citizen of a foreign power’.
So here’s what you need to know. The top court in Australia, the High Court of Australia, has adopted a bizarrely literal interpretation of that provision – and this is not their otherwise usual interpretive practice. True, Australia is one of the very last democracies without a national bill of rights (a good thing to me) and due to that the top judges have invented a few things on no plausible textual grounds at all – for instance they ‘discovered’ (or made up) ‘an implied freedom of political communication’ as regards electoral matters using a form of ‘living constitutionalism’ and proportionality analysis that would make the Court of Justice of the European Union proud. But as regards s.44 they’ve gone hyper-literalist, in a way that totally ignores the authors’ intentions. Now I happen to be a legal philosopher who thinks that meaning just IS what the authors intended, that deconstructionist idiocies around ‘readers’ response’ as much as hyper-literalism just make the interpreters the new legislators or authors. (Give baby-sitter example.)
But to go back to s.44. A case way back in the 1970s had decided that what counted as a ‘foreign power’ was a living constitution issue – because at the time the Constitution came into effect in 1901 those from Britain, Canada and NZ clearly were not from a foreign power. We were all British subjects then. So the top judges ‘updated’ that. Then recently they read the bits about allegiance to a foreign power or being entitled to the rights of a foreign power to mean you could be disqualified not just if you held any foreign citizenship, you could be out of Parliament even if you didn’t know you had foreign citizenship – because foreign law bestowed that other citizenship on you in a way Australia would not and without letting you know. It was a hyper-literalist reading of s.44. And it’s bonkers, in my view, this idea that our constitutional law can be subject to foreign law. And it has created chaos. Those found to be in breach of s.44 in the Senate are out and the next person on their party’s list comes in (since the voting system there is the Irish-style STV one). And in the House, a bi-election is called and they have to run again – albeit you should know that for these bi-elections the disqualified incumbent has so far always won, as voters think this is stupid too. We have five more coming up soon.
Okay, I’m conscious of the time and of wanting to leave lots of time for questions. So let me finish with this. An election in Australia will happen sometime between now and mid-next year (2019). My bet is that if Turnbull is still leader the Liberals will lose. I want him politically assassinated too, largely because it is in my view terrible politics for a right-of-centre party to have its most left-leaning leader ever. I think the Liberals could win easily if Turnbull were replaced. But the odds of that happening are probably no better than 50-50.