Could more “plebisurveys” restore public confidence in Australian democracy?

The extraordinary outpouring of national happiness following the passage of the same sex marriage legislation on Thursday unavoidably gives rise to the question of whether some similar community consultation/plebiscite/survey mechanism (perhaps a well-designed and secure online survey mechanism rather than an unwieldy and expensive postal survey) might be an effective way to restore falling public confidence in Australia’s liberal democratic political system. For Labor, the Greens and most of the YES/LGBTQIA community, the immediate answer seems to be a resounding NO.

Part of the reason for that is that some vulnerable members of the LGBTQIA suffered hurt, abuse and even depression as a result of some of the more grossly hurtful and false claims of the NO campaign. They argue rightly that Parliament itself had the power to enact SSM legislation. It could and should, they say, have exercised that legislative power without any formal process of public consultation as occurs with most other legislative reform. This is a matter of fundamental human rights, they argue, and it is wrong and offensive for other community members to be entitled to vote on whether the rights that everyone else already enjoys should be granted to LGBTQIA people.

However, there are several problems with those arguments.

First, although I personally agree that marriage equality should be a fundamental human right, the reality is that it has never been so regarded in international law and still isn’t. Twenty four nations (possibly 25 counting Australia) have now legislated for same sex marriage, but all have done so in the last decade or two. Moreover, almost 40% of Australian voters oppose legalising same sex marriage, many of them probably very strongly. It’s one thing to ram economic legislation through Parliament without a formal process of public consultation, quite another with fundamental social legislation with an obvious moral dimension, about which the community is clearly divided.

Secondly, the premise that vicious and hurtful public debate would somehow have been avoided by Parliament legislating without first formally consulting the community is dubious at the very least. Almost certainly debate would have been every bit as acrimonious and even vicious in those circumstances and charming individuals like Lyle Shelton would have been every bit as publicly ubiquitous. Discussion might have continued for a slightly shorter period, but there still would have been at least a couple of months between introduction of the bill and its enactment. In the absence of moving urgency (which was not justified), public and parliamentary debate would not have been significantly truncated. Vulnerable members of the LGBTQIA community would have suffered just as much hurt, trauma and depression.

The third reason why YES campaigners, Labor and the Greens appear to have opposed any form of community survey or plebiscite prior to Parliament legislating wa the assertion that it would be contrary to the Australian/Westminster system of representative democracy. However that claim misunderstands the concept of representative government itself. The most commonly quoted enunciation of representative democracy/government is that of British conservative politician and political philosopher Edmund Burke in his Speech to the Electors of Bristol in 1774:

Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

But most writers who quote this famous principle tend to ignore the passages that precede and follow it:

Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. …

To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,–these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.

Nevertheless it appears that Burke didn’t actually follow his own wise advice in practice:

Edmund Burke politician, philosopher and polemicist, was MP for Bristol for just six years: from 1774 to 1780. During that time he visited his constituency infrequently, and, by the time he moved on to the pocket borough of Malton, he had alienated the mercantile interest to a point where he had no hope of re-election.

That fact doesn’t invalidate Burke’s principle, it merely illustrates that a politician who wishes to be re-elected must balance carefully the wishes and opinions of their electorate against their own views and carefully considered judgment.  Wise MPs certainly shouldn’t blindly vote to enact the “tyranny of the majority” famously enunciated by de Tocqueville and JS Mill, but nor should they lightly ignore the popular will in case the voters replace them with an unscrupulous populist who will happily serve as a conduit and megaphone for popular prejudices, with no attempt whatever at evidence-based analysis or deliberation. A Pauline Hanson’s One Nation candidate, for example.

Edmund Burke could in fact quite easily have kept closely in touch with the wishes and opinions of the Electors of Bristol. This was long before the Reform Acts of 1932 and 1848. Britain was not a democracy in the form we understand the expression today. Only around 5000 residents of Bristol had the vote. All were members of the propertied classes and none were women.  Most British electorates (both shires and boroughs) had even less than Bristol’s 5000 voters.

By contrast, today’s Members of Australia’s House of Representatives typically service electorates of around 110,000 voters. The voters are much more socially, culturally and economically diverse than those of Edmund Burke’s day, and the legal, social and economic issues about which Parliament must legislate are significantly more complex. While MPs still must have a good general understanding of their electorates, they cannot reliably gauge their local voters’ wishes on every individual issue that comes before Parliament. That tends to result in extreme risk aversion, lack of policy innovation and too often something close to policy paralysis on important but controversial questions.

Most high profile issues are the subject of private opinion polling, but the sample size is rarely large enough to allow MPs to draw reliable conclusions down to an individual electorate level. Both private polling organisations and the two major political parties also commission polls in individual marginal seats in election run-up periods, but it would be prohibitively expensive to do so in every electorate, on even important policy issues and throughout each parliamentary term. It would no doubt be cheaper than the $80 million spent on the SSM postal survey, but certainly not cheap enough to be utilised any more frequently than “once in a blue moon”.  They could possibly employ Big Data harvesting techniques to generate meaningful information about individual prejudices from Facebook and similar information, as Trump and the Brexiters allegedly did with the help of the shadowy Cambridge Analytica. But that raises a range of thorny issues.

And yet the extraordinary and fairly general relief and evident euphoria that followed enactment of SSM legislation last week strongly suggests that injecting a greater element of participatory democracy into our system of representative government is a potentially powerful way of re-energising the system and reducing current public cynicism and disillusionment. It has existed in Switzerland for many years where the direct popular will may be determinative/binding in some circumstances, and various forms of participatory democracy have also been trialled successfully over the last 30 years or so, in parts of Europe and the Americas. More esoterically, academics such as James Fishkin have proposed and implemented something he refers to as “deliberative polling”, whereby a random sample of voters is gathered together and subjected to an intensive and ostensibly balanced presentation about the issues involved in a particular public policy question, with the aim of promoting genuinely thoughtful deliberation and reducing the level of public ignorance and apathy said to be largely responsible for the “tyranny of the majority”. Whether it does so is distinctly questionable, and whether the conclusions of a tiny group of randomly selected “monitorial citizens” are likely to have any measurable recommendatory effect on the rest of the citizenry is even more dubious. Tim Dunlop discussed Fishkin’s ideas in some detail quite a few years ago and I mused less enthusiastically here.  A more detailed but equally sceptical account of deliberative polling by Lehman and Cavenagh can be found here.

My Club Troppo colleague Nicholas Gruen has long been keen on another idea involving a greater degree of participatory democracy, achieved by a “citizen jury” or even a  citizens’ deliberative third house of parliament whose members would be selected by lot/random sortition. Also see Part 2.  It’s a fascinating idea but I have serious doubts whether it would in fact contribute substantially either to better deliberation or greater public confidence in the overall political system.  The concept is critiqued in some depth by another fellow Club Troppo author in Paul Frijters here and here.

By contrast, greater use of some sort of “plebisurvey” where everyone gets to express their opinion is much more likely at least to increase public confidence in our political system. AS social media graphically demonstrate, a significant proportion of Australians are not apathetic about politics at all. Like the SSM postal survey, any online plebisurvey should not be binding on Parliament, but (as we saw with the SSM survey) politicians would need to have a strong intellectual conviction or reason of moral conscience to ignore a decisively expressed YES or NO vote by their constituents.

The wider use of plebisurveys will obviously be dependent on the major parties being willing to utilise them more often; develop workable, secure and affordable online survey mechanisms and give their MPs a conscience vote. There’s no way they will do that with complex economic policy decisions, or indeed where policy or legislation is significantly ideologically based. However, there are quite a few controversial, fraught issues where that really isn’t the situation. Examples may include euthanasia laws, Australia’s national anthem and flag, and the date of Australia Day. I could even see the Republic debate being usefully advanced by having plebisurveys on the question of whether or not Australians want a republic at all; if yes, then whether they want the President popularly elected or appointed by a two-thirds majority of the members of the Commonwealth Parliament; and only then putting the resulting public preference to a referendum under Constitution s128.

You wouldn’t necessarily expect the community debate on any such issue to be an examplar of thoughtful civic deliberation, but the process could certainly be made subject to a law aimed at moderating extreme vilification based on race, ethnicity, religion, gender or sexuality. Moreover, both the ABC and The Conversation factcheck units could be commissioned to investigate all dubious factual assertions by either side and publicise the results prominently on the plebisurvey website. Because of cognitive phenomena like confirmation bias, you wouldn’t expect this to result in kumbaya-style consensus and harmony or even thoughtful deliberation resulting in significant numbers of people changing their minds. After all, opinion polls on SSM consistently showed between 60 and 70% in favour for some years before the recent plebisurvey, and that’s exactly how the result panned out.

But that isn’t the objective. Instead it is what political philosopher Chantal Mouffe refers to as “agonism”. Mouffe suggests that the aim of any political deliberation is not consensus, because that will usually be impossible, but a workable accommodation between competing interests and viewpoints. Democratic deliberation should aim at turning “enemies” into mere political adversaries or rivals, and potentially violent antagonism into “agonism” where peaceful accommodations or compromises between opponents are not only possible but the normal and expected outcome of political disputation. That would be a huge advance on the current fractious, unpleasant state of Australian politics, and it’s what we witnessed in Parliament at least for a few hours last Thursday. There is room for hope that enough of our politicians found those events a delightfully refreshing and positive change that they may be tempted to try it again.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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John R Walker
4 years ago

“a workable accommodation between competing interests and viewpoints. ”
That is the essence of Burke’s philosophy :
All government, indeed every human benefit and enjoyment, every virtue, and every prudent act, is founded on compromise and barter.

I am and will always be Not Trampis
I am and will always be Not Trampis
4 years ago

the extraordinary outpouring of national happiness???

Nothing happened in Eastwood nor in the city. I thought the most common reaction was relief actually.
You almost he cost of the procedure and the subject matter you think it could well be appropriate hasn’t people ‘shouting in the streets. Moreoever people would risre up about the opportunity cost of the cost.
you claim some fact units could examine some claims involved. I found it amusing they checked the admirable Katy Faust and found her claims wanting. She came back and found their fact checking wanting as I showed.

You finally admit the postal survey merely showed what opinion polling was showing for some time. The survey was useless except for your ‘belief’ of the euphoria that occurred Australia wide after the legislation passed.

given that clearly did not occur you are left wearing no clothes.

Moz of Yarramulla
Moz of Yarramulla
4 years ago

It’s one thing to ram economic legislation through Parliament without a formal process of public consultation, quite another with fundamental social legislation with an obvious moral dimension, about which the community is clearly divided.

Yes. It’s important to remember that “parliament should just do it” is how we got “between one man and one woman for life” (for all that that was never actually implemented). Not to mention the “Aboriginal protection acts” and various other bits of nastiness.

The flip side of that is that there is a place for the politicians to lead the public, or at least follow-in-front. The Franklin campaign, for example, the the US Muslim Ban.

Also, with referendums and surveys there is always the chance of real problems – if the 1968 referendum had failed we’d be eft relying on activist judges reinterpreting old laws in the light of new attitudes, as they’re currently doing with the “no foreigners in parliament” clause of the constitution.

I don’t have answers, I’m just pointing out that every approach suggested has problems :)

I am and will always be Not Trampis
I am and will always be Not Trampis
4 years ago

It is a myth legislation is rammed through. Even controversial legislation has Senate committees examine it. Usually most legislation has stakeholders giving their opinion of what is wrong, how to improve it etc

David Walker
4 years ago

Hear hear, Not Trampis. I get sick of that mythical ram being taken out of the cupboard every time someone wants to complain about some law that they didn’t want passed.

Moz of Yarramulla
Moz of Yarramulla
4 years ago

I suspect one problem with public opinion is that it often diverges from the needs of those who live in the economy rather than in society. I suspect an economic veto will be used, either implicitly or explicitly, to prevent the plebians voting themselves bread and circuses (that power is reserved for the plutocrats).

I do like the Swiss model, but it’s very hard to see how we’d get there from here. Citizen’s juries appeal to me greatly because they give time for reflection based on a better appreciation for the facts than our media are capable of providing. Sadly our current model for how society should work means that if you want someone to have time to learn about a subject and develop an informed opinion on it you need to pay them to do so (if only so they can afford the loss of other income that results from spending time on it).

On a happier note, we had Christmas Carols in the park last night and a good time was had by most (the birdlife in the park not so much). “we wish you a Muslim Christmas and a Hindi New Year” pretty much sums it up, mainstream Christians in Lakemba are very much a minority ( .

I am and will always be Not Trampis
I am and will always be Not Trampis
4 years ago

The Swiss have a long history of using such things. It works well. It doesn’t occur elsewhere.
I wonder why

Stephen Bounds
4 years ago

This is why:

Ethnic groups: German 65%, French 18%, Italian 10%, Romansch 1%, other 6%
Religions: Roman Catholic 37.3%, Protestant 24.9%, other Christian 5.8%, Muslim 5.1%, other 1.4%, Jewish 0.2%, none 23.9%, unspecified 1.3% (2015 est.)

Switzerland is a highly homogeneous society, thus participatory democracy is less likely to leave significant groups feeling disempowered.

John R Walker
4 years ago
Reply to  Stephen Bounds

Its total population is also quite small only about 8 million.

David Walker
4 years ago
Reply to  Stephen Bounds

My impression was that by European standards Switzerland is considered pretty diverse. It has four official languages – three more than most European countries – and its religious diversity doesn’t look that low.

Google says I’m not alone in my impression. Here’s a paper trying to figure out why its diversity has not sparked more internal violence:

Its conclusion seems to be that mountain ranges work well at keeping people apart, but that the right amount of mixing can work too.

Australia’s approach, of course, has stressed mixing, not separation.

Edward Carson
4 years ago

“…both the ABC and The Conversation factcheck units could be commissioned to investigate all dubious factual assertions by either side and publicise the results prominently on the plebisurvey website.”
Ken, I think you lost a lot of your readers with that line. Why not also ask Gillian Triggs to adjudicate on all contested phrasing of any questions put to the public?

But otherwise quite a good article.
I think the reason there is such a disconnect between citizen and MP is the lack both of citizens initiated referenda and proportional representation.
As good as plebisurveys may be, they are still only on the issues the pollies want. About 50% of the public believe in the Death Penalty as well as limiting immigration, but when was the last time we had a plebiscite or referendum on that? Yes, get 14.4% of the vote in the Senate and a party tailored to a specific ideology will win a seat, but that still leaves out a considerable number of smaller parties representing the public’s various concerns. For the lower house, single member voting is an anachronistic concept only kept to maintain the major parties’ duopolistic control. Check out the nascent democracies since WWII and they mostly go for Pro. Rep.

Nicholas Gruen
4 years ago

Thanks for the post Ken,

I’m not sure how much more your piece is than a kind of ‘feelgood’ factor after the people got the right answer.

There was a similar plebisitery exercise in Britain in the middle of last year and it’s not worked well for the country. No-one’s very impressed with how things are going. That’s partly because it was a simple yes or no answer to a complicated problem – like lots of problems. One of the things that the Brexit referendum showed was John Howard’s good sense (of course it went along with self-interested cunning) in NOT accepting the idea that we decide first whether we want a republic and THEN what kind. If you’re a luke warm republican like me it matters a lot what kind of republic you’re voting for.

Mike Pepperday
Mike Pepperday
4 years ago

Hi Ken.

I agree with most of your analysis. I am glad you mentioned that Burke had to find a safe seat. He was just too damned English even for the English: leave things to your betters, the experts and the blue-bloods.

I have reservations about this euphoria. It got wall to wall coverage on the ABC and it was wonderful for those directly concerned but to everyone else I think it was a bore. Above all, there was that celebratory scene in the House of Reps. It was affecting but it is this house which is largely responsible for “the current fractious, unpleasant state of Australian politics.” If we weren’t treated to scenes of tribal abuse every day the house sits, things might be less fractious.

So there is a sense in which the euphoria was as fake as the theatrics accompanying most other bills. The Reps doesn’t actually do anything. Note how that law went first to the Senate. The euthanasia law in Victoria followed the same pattern. In a way, all laws do this. The bill might go first to the lower house but it’s just ritual. If it is contentious we will be treated on the evening news to the sides abusing each other—but to no effect on the bill. The only effect of the theatrics is to degrade the state of politics. The bill then goes to the upper house, gets amended, returns to the lower house which obediently passes the amended bill.

The tone of Australian politics would be transformed if sittings of the lower house were cancelled and replaced by the clerk wielding a rubber stamp saying PASSED.

“It would no doubt be cheaper than the $80 million spent on the SSM postal survey, but certainly not cheap enough to be utilised any more frequently than “once in a blue moon”.”

You know, Switzerland does about ten national referendums a year and there are also cantonal referendums. They’re not postal, either. Expensive. So the question is: do they do the referendums because they are rich or are they rich because of the referendums?

About 600 national referendums since 1848 yet they never seem to have a disaster like Brexit. Why? Because they ask a clear question, in many cases the exact wording of the proposed law. I agree with Nicholas—it is wrong to put the general “Do you want a republic?” It is asking to be hijacked. Shorten says he will do it. It surprised me when he announced that. It’ll be interesting.

4 years ago
Reply to  Mike Pepperday

You should have either many referendums or none at all. Having referendums once in a blue moon can lead to them becoming giant by-elections like the Brexit vote. An alternative is to put many issues before citizens assemblies.

Citizens deliberating together almost always produce a better result than a refererendum and people occasionally change their mind, rather than merely hardening their opinions as they do in a referendum or a competitive election.

David Walker
4 years ago

Ken, I was wanting to write something similar to this but couldn’t assemble the pieces as well as you have. Like you, I suspect the negatives of the plebiscite were overstated. At the very least, the vote seems to have pretty well sealed an issue which could otherwise have dragged on in Parliament.

Note that the Swiss did indeed have a “Swentry” (Swiss entry) vote in 2001, with the proposal for EU entry soundly defeated. The Swiss National Council finally voted last year to withdraw the country’s suspended application for EU membership