Malcolm Turnbull this week put to Parliament the bill that would enable the plebiscite on same sex marriage to go ahead. In demanding that Labor support it, the Prime Minister said: "We took this to the election and we won the election. There was no doubt about our policy. There was no doubt about our platform.
"This was prominently debated every day of the election campaign. Every Australian who took any interest in the election knew that that was our policy. We have a mandate for it, and the opposition should respect it."
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PM introduces plebiscite bill to parliament
Malcolm Turnbull spoke of the societal benefit of more marriages in Australia while introducing the contentious same-sex marriage plebiscite bill on Wednesday.
This sounds reasonable enough, doesn't it? On the majoritarian principle that the winner is the one with 50 per cent plus one, based on a fair vote and an informed electorate, that entitles a government to legislate its promises, doesn't it?
Bill Shorten doesn't think so. The Labor leader has an entirely different version:"Have you ever heard of someone negotiating by getting a megaphone and saying 'just trust us and just do this or that'?" Shorten said last month.
"That is not a negotiation. These guys are acting like they still have a 90-seat margin in the House of Representatives. They don't. He acts like he got some massive mandate. They have a one-seat majority.
"We will be constructive, have no doubt about that, but what we are going to do is stick to our values on the way through."
But didn't Labor lose? What sort of mandate is that?
"Labor has a positive platform and we've been given a mandate by an increased amount of Australian support to stand up for our positive policies," he said four days after the election.
![Illustration: John Shakespeare](/web/20160917224845im_/http://www.brisbanetimes.com.au/content/dam/images/g/r/i/1/a/b/image.related.articleLeadwide.620x349.gri1s2.png/1474021758490.jpg)
So winning and losing aren't absolute concepts in Shorten's world. Everything is a negotiation based on the balance of numbers, but also trends in support. This sounds like a backroom factional negotiation, and it's based on the same concept – whatever you can get away with.
Or as the Opposition leader put it to me on the subject this week: "The government says it has a mandate – fine. Let them put it to a vote." Meaning that the government will likely prevail in the House if it can hold all its members and isn't outwitted tactically by Labor. As we saw a couple of weeks ago when Labor exploited government inattention to seize the majority, this can be a minute-by-minute proposition.
But, without Labor's support, the government will likely fail in the Senate. This is mandate defined not by any right but by raw power.
And this is only the beginning of Turnbull's problems in claiming a mandate. Because it's not just Labor that claims its own, competing mandate.
There's the Senate, Paul Keating's "unrepresentative swill", which claims its own prerogatives. As Nick Xenophon told me: "Australians get two votes" – one for the House and one for the Senate – "so there are two mandates".
The government has 30 seats in the Senate and needs 39 to prevail on a bill.
So Turnbull can only win a vote in the Senate if he has the support of the following. First, he needs the Coalition senators in his own government, and that is not a given.
The conservatives, in particular, and party rebels in general, commonly reserve their right to cross the floor and vote against their own party. This week it was the Liberals' Senator Dean Smith, who has a philosophical objection to plebiscites on any matter.
If Turnbull does have all his senators behind him, he could prevail with either the Greens with their nine seats – but they are the most unlikely Coalition supporters on just about anything – or Labor. Without Greens or Labor, Turnbull needs nine of the 11 crossbenchers.
And that crossbench includes Xenophon and his three votes, but also Pauline Hanson and her four. And all of these consider themselves to have their own, separate, special mandates.
As Hanson said to reporters this week in defending her call to restrict Muslim immigrants: "As we have seen many other countries around the world have lost control of their countries their suburbs and there is civil unrest on their streets. I do not want that for Australia. I have a responsibility now as being a Senator in this place to be a voice for more than nearly 600,000 people that voted for One Nation."
So Turnbull claims a mandate based on the votes of 6.8 million people on a two-party preferred basis, or 50.4 per cent of the total, and Hanson claims a mandate based on fewer than one-tenth of that.
Everyone has their own special claim to a mandate, it seems, and no-one recognises that the government has one. Not even some members of the government itself – the conservative clique of the Liberal-National Coalition claims a higher loyalty. Sometimes it's to an ideology, other times it's to the party "base". This was the justification for the conservative revolt against Turnbull, Scott Morrison and the government's budget proposal on superannuation – the plan was unpopular with "the base," they said, so they defied their leadership and a Cabinet decision.
Strikingly, only the conservatives consider themselves to have these higher loyalties. They are special. The Liberal moderates seem prepared to accept the simple concept of loyalty to the government.
With this clamour of clashing claims to mandates, can the Turnbull government hope to achieve anything?
This week it did, but only because Shorten's Labor party allowed it to.
It was a fascinating week because it gave Australia a view of Shorten's view of mandate in action.
On some matters he was prepared to compromise and work with the government to solve problems, where it suited Labor. On others he is flatly obstructionist.
Where was the compromise? There were two, on major matters. One was trimming spending on a grab-bag – an "omnibus", as the government preferred it – of policies to find $6.3 billion in budget savings over four years. Another was increasing tobacco excise to wring another $4.6 billion out of smokers.
How big is this? In scale, it's not enough to halt Australia's long slide into ever-increasing indebtedness. Even if the government gets every budget proposal it wants over four years, even if all the forecast revenues arrive exactly as anticipated, this total improvement of $11 billion to the budget balance over four years still sees Australia running up $85 billion in new deficits by 2019-20, according to the budget.
Symbolically, though, it's huge. It shows that bipartisanship is possible; that the major parties can work together to solve problems; that Australian democracy is not necessarily doomed.
But Labor is shaping to deny Turnbull the same-sex marriage plebiscite. Because, in this case, it doesn't suit Labor to cooperate.
Shorten considers that he has a mandate to support the wishes of the same-sex marriage lobby. The lobby prefers the matter is resolved by a simple vote in parliament without any plebiscite.
Shorten's Labor will serve its own constituency, as defined by Shorten.
Is this state of affairs a new outbreak of narcissism, where any party, any faction, any individual claims their own special mandate at will?
No. When John Howard claimed "a huge mandate" with 93 of the 148 seats in the House, he was defied by Labor, by independents and even sometimes by members of his own government in the Senate. He had to negotiate bill by bill, item by item.
Gough Whitlam argued that he had "a specific mandate to implement each part of the program set forth in the 1972 policy speech". Yet the constitutional crisis of 1975 was brought on when Malcolm Fraser's opposition refused to recognise that Whitlam had a right to do anything, even to continue to fund the routine operations of national government.
That was such an extreme that the main parties have since pledged not to repeat this. They now observe the convention that an elected government has an automatic right – a "mandate" - to win the supply bills to kepe the country running.
But, short of Fraser's extremes, it's business as usual that a government must fight, negotiate and manoeuvre for everything it wants to accomplish.
The original claim of a government to a "mandate" has been traced to Britain's parliament in 1832, and it's a concept that's been argued without settlement ever since.
"Whether a mandate has been given, and of what a mandate consists," said the eminent British legal and constitutional expert Sir Ivor Jennings three quarters of a century ago "are matters for argument."
Academics define two separate types of mandate. One is the "general mandate", the idea that an election only decides who is to govern, not what policies they are entitled to pursue.
This is an uncontroversial version of a mandate. In this case, Turnbull has been able to form a majority in the House so he's acknowledged as the legitimate prime minister.
But the "specific mandate" theory that says a government has a right to enact its promises is hugely contested, as Macquarie University's Professor Emeritus Murray Goot has set out in his paper Whose Mandate?
In particular, in a parliament with a powerful upper house such as Australia's, "a government's claim to ANY sort of mandate [is] much more difficult to sustain", says Goot.
So Turnbull's ability to deliver will depend on his skill and on the goodwill of Shorten and all the other members of all parties.
If this fails, then the words of Turnbull's Cabinet secretary, Arthur Sinodinos, from election night could prove prophetic. After Shorten had declared that Turnbull, even if he won, would have no mandate, Sinodinos said : "This is the trouble the country faces - in effect, at some stage, we will have to re-run this because no-one has a mandate for anything."
Peter Hartcher is political editor.
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