Privilege in Australia, Part II

In part I the question was posed to the readers which privileges bothered them most about Australia and what they thought could be done to reduce them. In this part I want to start to consider the barriers by talking about the ‘face’ of any privilege and how this creates particular difficulties in tackling them.

The reaction to the first part though revealed a lot of people have pet hates when it comes to privilege. Apart from my own particular bones of contentions (mining chief amongst them), there were those bothered by welfare privileges (Mike Russell), the whole secret system of military expenses and PV subsidies (Ben), captured markets for GPs (Selzick), allocations of water rights (Sam Wylie), subsidies to private schools (Michael Stanley and Mary jenkins).

The proposed solutions were varied, including electoral reform (Alan), the use of taxation measures when it came to the subsidisation of elite education (conrad), better general education on these issues (Sam), or the removal of particular laws pertaining to this or that privilege.

Rather than discuss all these, I want to give you an idea of what one is up against when it concerns privilege and then re-assess what can be done.

What is not commonly understood by economists about existing privileges is that they invariably have a defensive story that surrounds them and protects them. This defensive story, its ‘face’ or ‘cloak’, has as its central tenet that the privilege is in fact a good thing for society and that one should expect nothing but bad from removing it. The particulars of the protective story are entirely dependent on the audience: whatever the audience is prepared to believe will be in the story so whatever the favourite ideals or delusions of the audience are, the protective cloak of privilege will cater for it. And invariably, many people are fooled by the cloak and turn into willing protectors of the privilege because they are so enamored of the cloak.

Let me give two examples. One concerns medical specialists and one concerns the mining tax.

On medical specialists, the basic economic story is of an almost childish simplicity; medical specialists have a legally guaranteed monopoly on particular medical activities (like heart surgery or providing anaesthetics). Moreover, the medical specialists have organised themselves into cartels wherein they as a group decide on the minimal requirements of new competitors, ie more specialists, via the number of training places. As a result of this legally guaranteed cartel as well as a deliberate policy of having few medical places at university, wages of medical specialists are now astronomical (though, of course, partially secret), easily close to a million a year for particular specialism like anaesthetists. It’s a clear case of a privilege, perfectly well recognised by most economists and economic think-tanks. Solutions are debated and then resisted, such as when governments try to get more foreign doctors but the Australian Medical Association is uncooperative in recognising qualifications (or setting impossibly hard exams for foreigners) or checking them.

Now, whilst this reality is known by the insiders, this is not the public face of medical specialists at all. In the eye of the public, these are the heroes in Dr House and Gray’s Anatomy. They are the saviours who have rescued a family member. The public image of medical specialists is hence very different from the grabbing self-interested behaviour as a cartel.

It is this face you continually have to battle when talking to the general public, politicians, or journalists. It creates an immediate hurdle to rationally debating it in the open.

A similar cloak surrounds the mining deal that Gillard struck to cement her elevation to the top political job. I am pretty certain that in reality the deal cost us many billions per year and is the direct cause for all the budget problems the commonwealth and the states now have. It was a humiliating climb-down that makes the commonwealth the protector of the mining industry vis-a-vis the States. Without the deal, royalty rates (which are set by the States) would probably have continued on their rising trajectory and many billions would have flooded the Australian treasuries.

But the ‘face’ of this deal is entirely different. The face is one of a necessary deal that ironed out the difficulties with the original proposal and that supposedly makes us billions. In order to hide what a botch-up it really was, many of the real figures on tax receipts are secretive, which protects both politicians and civil servants from accountability on this issue.

Now, in both cases will any civil servant or interested journalist or member of the public first have to pierce the cloak.

That is not easy to do because everyone in power has an interest in maintaining the cloak: it is not just the protected privileged group that benefits from the cloak. Politicians also perpetuate and support the cloak because it allows them to save face themselves as they can claim that there is no problem for them to address. Furthermore, it allows them a lubricant in their interaction with the privileged group: if they cannot mount a successful campaign against the privileged group, then to a certain extent they must join them up until the time they can betray them. So the logic of politics, which is that one makes no open enemies up until the moment you shaft them simply because until then you will need them, means they are forever framing everything in terms of the privileged cloak.

For the same reason will civil servants be forced to go along with the face of privilege: they too would face a moral obligation to fight the privilege if a privilege was de-faced and so many of them too want to go along with the face until such moment as there is an active campaign to undermine the existing privilege.

This need for policy makers and civil servants to go along with the facade of an existing (winning!) privilege spills over into the whole public sphere: in textbooks, official documents, research reports, etc., will you find people towing the official line, either because they do not wish to offend the politicians, bureaucrats, or the privileged themselves who benefit from the official line, or else simply because the official line has become the way they truly view things.

Taking the two examples above for instance, I would guess that few people really buy into the official cloak surrounding the mining deal: the journalists, politicians, and civil servants all pretty much know that the Rudd/Gillard government went up against the mining privilege and lost big time. This also means that the willingness of everyone to really go along with the cloak is diminished because it would mean adopting the language of the losers of the battle.

Yet, on medical specialists, there is no doubt that many ardently believe in the fairness of the current arrangements. Because little data is freely available on it (though the Melbourne Institute has unearthed figures), their wages are not widely known. And of course, there is the element of a lottery here in that it is possible for many to hold onto the hope that they or their kids will also be able to cash in on this bonanza by joining the medics. So aspirations, ignorance, and hero-worship maintain public support for medical specialists.

Now, this business of the cloaks is crucial for the whole question of how privilege can be tackled. It namely leads to several crucial points:

  1. Official support (from politicians and civil servants) to undermine a privilege can only come after another group has shown there is support in the population and semi-official institutions for going after a privilege. Until then, officialdom by necessity has to go along with the face of privilege. Simply put, politicians will only stick their necks out when they believe it is a vote winner, which means others must rustle support from the population and the intellectual and economic elite for change. It hence automatically means there is a role for civic society here. The state cannot itself be an anti-privilege champion for it would not itself rustle support against privilege until entrepreneurial politicians thought on the basis of what they hear and see that there is a real chance they can win.
  2. By design, one cannot go up against many existing privileges at once, simply because one needs the support of many to have a chance to win against a few. Once there are a few wins, there is the possibility of having a whole wave of reforms, but to set the ball rolling one would need to keep quiet about most privileges and focus on a few in particular. This in turn leads to a very difficult coordination problem: since those opposing privilege are often unorganised and less-informed, the question of which one to focus on is one of competition itself, where accidental champions successfully get issues on the agenda and crises force rethinks. For the vast majority of privilege reforms it must always be an issue of ‘waiting in the wings’.
  3. There is a need for a perennial back-ground fight against the existing face of privilege. Any book, article, theory, or discipline that has a core story going against a privilege is basically a means of de-facing a privilege. In large part, this is a role that academic economists and official ‘privilege watchers’ (like the Productivity Commission which by its very nature is charged with keeping tabs on inefficiencies in the economic system, such as privileges) have: to keep records of how the privilege really works, how costly it is, and what maintains it. They have little chance of winning all the battles and so there is a real issue as to whether they should leave ‘advocacy to others’, but as ‘keepers of the knowledge of how the rest of society is impoverished by existing privilege’ they are invaluable as a resource to those entrepreneurial journalists and politicians wanting to fight a good fight.
  4. Since information about what lurks behind the ‘face’ is often known to only a few and since it really often is very hard to pierce that cloak for outsiders (including myself on many areas!) there is a potential role for civic society in organising whistle blowing and aggregation of information. I would for instance love to know where I would have to look for a truly good opinion of what goes on with, say, the NBN or large land-owners. There are a couple of people whose writing on the subject I trust to reflect their real opinion but it doesn’t mean I trust their opinion because it is damned hard in case of the NBN to know what really goes on behind the facade. Some sort of iterative weighing scheme of ‘agrees’ and ‘disagrees’ with what those people say about an existing privilege would certainly help me. Perhaps it is even worthwhile thinking about some kind of ‘voting system’ whereby one gets public signals as to what the real experts think about this or that issue.

Where does this leave us? It leaves us with the question which privileges people think are ripe for the challenging. Well, which ones do you think are up for grab? And, since I want to discuss electoral reform as one of the mentioned options, do people really expect it makes a difference if one goes proportional representation rather than first-past-the-post?

57 thoughts on “Privilege in Australia, Part II

  1. There is some work on proportional representation and economic performance. See for example Which democracies prosper? Electoral rules, form of government and economic growth

    Electoral rules and form of government have important economic effects, for example on taxation and public spending. However, there are no robust results in the literature when it comes to their effect on economic growth. This paper investigates whether electoral rules and form of government affects economic growth by applying panel data techniques on a very extensive dataset. There is no robust effect of presidentialism or parliamentarism on growth. However, there is very robust evidence for a positive, and quite substantial, effect of Proportional Representation (PR) electoral rules on economic growth. This is partly due to PR systems’ propensity to generate broad-interest policies, like universal education spending, property rights protection and free-trade, rather than special interest economic policies. Also semi-proportional systems seem to enhance growth relative to plural- majoritarian systems.

    A couple of caveats, France has not used PR since 1958, except for a brief period under Mitterrand. Italy has not used PR since 1993 and Greece uses a weird thing misnamed reinforced PR where the leading party is automatically awarded 1/6 of the seats in parliament no matter its share of the vote or margin over the second party. The classic PR countries in Europe are all those frugal blond nations like the Netherlands and Finland.

    If policy-making is a secretive game played between the two big parties then outcomes like the mining tax mess are much more likely. I don’t want to derail the thread with Gillard-bashing but one significant reason the mining tax is so favourable to the miners is that Gillard used it as a club to beat Rudd over the head, even though the original proposal was designed by Swan, her main caucus ally, and ran contrary to some of the specific features Rudd had asked Swan to include.

    I would also strongly advocate for (1) more monitory institutions, a fiscal council, etc and more greater formal and actual independence for existing monitory institutions like the AEC etc and (2) giving parliament much greater power to investigate and check the executive. A classic example of the second is the Keneally government in NSW proroguing the parliament to avoid a legislative council inquiry into the electricity privatisation.

    Although the Ghai constitution jas now been trashed by the Bainimarama regime, it did represent world’s best practice when it comes to monitory agencies. Ghai proposed independent constitutional status for:

    Fiji Human Rights Commission
    Ethics and Integrity Commission
    Electoral Commission
    Judicial Service Commission
    Mercy Commission
    Constitutional Offices Commission
    Salaries and Benefits Commission
    Public Service Commission
    Police and Corrections Services Commission
    Solicitor General
    Director of Public Prosecutions
    Auditor General
    Governor of the Reserve Bank of Fiji
    Ombudsman
    Commissioner of Police Commissioner of Corrections

  2. I liked Albert Langer’s method it was left up to the individual to chose a preference or not. Howard soon deleted that when he saw the results. At least it gave the voters a choice but the 2 major parties didn’t like it. They will not like first past the post neither do I. But limited prefernces should be allowed.

    • Compulsory preferential voting is unknown outside Australia. It was not part of the system as proposed by Catherine Spence and Andrew Inglis Clark. It was invented in Australia to serve the interests of the major party. Except in the 6 seats that returned independents last time ultimately one of the two big parties ‘captures’ your vote whether you want them to or not. Optional rpeferntial voting happens in NSW, Queensland, Tasmania and the ACT. It is a far more democratic system

      At the same time it is a simple exercise in mathematics to prove that single member districts cannot be relied on to give a fair result. SMDs have given us a reversed federal majority within the last 15 years and several reversed state majorities. Even In South Australia where the state constitution specifically orders the boundaries commission to take the possibility of reversed majorities into account, the last state election was a reversed majority.

      The last part of the nasty stew that keeps compulsory preferences for federal elctions is a mantra of the ALP right the ‘The progressive vote has nowhere else to go’. By this particular proof of the innate genius of the ALP right progressives don’t matter because they cannot vote for anyone else. Sadly for the theory the reality is that we can. In both New South Wales and Queensland massive numbers of people who had never voted anything but Labor before gave the Coalition their first preferences. In the mining towns of Lithgow and Broken Hill the Coalition went from never having taken a booth in either town to carrying every booth in both. If Labor is in trouble in Broken Hill, then heaven help them in Lindsay.

      • Albert Langer won the right to optional prefereces and wheb Howard appealed and reversed it it took away the voter rights. Maybe a class action would reverse Howard’s attempt to control how we vote?

        • We don’t have a bill of rights, although we should. There’s no basis for a class action.

          In some ways the state of the electoral act is the ultimate case of interest groups, the big parties, seeking privileges through legislation. In 2007 Labor promised a better donations regime in Australia but they have not followed up in government beyond a couple of green papers from Senator Faulkner. Although Labor opposed the Howard legislation that closes the rolls almost immediately the House is dissolved they have not reversed those changes in government. In 2010 it was open to the Gillard government to get round the Howard legislation by announcing the election and then delaying the formal dissolution for a few days but they did not do so. The Democratic Audit of Australia wen into a lot of this stuff in 2006.

          New South Wales bans donations by anyone who is not an individual on the electoral roll.

  3. Intellectual property rights are a hugely damaging source and protector of privilege, cloaked in stories about artists and inventors being rewarded for their toil and creativity. The cloak extends to fictions like ‘reproducing a work is like stealing a car’. Its greatest success and defence is its ownership of the word ‘property’ for what is really just a legislated monopoly.

    IP privileges the few at the expense of all consumers, and it stifles genuine invention and creativity, including through the granting of ridiculously trivial patents that lead to (at best) lawyers’ picnics and unearned reward for the patent troll.

    There are lots of great ideas for unmasking and then attacking this privilege. Nick Gruen has published some, and if you Google ‘Against Intellectual Monopoly’ you will find a comprehensive set of arguments and ideas on this.

    • This seems like a pretty common way to protect privilege of the few. Create some abstract legal ‘right’ that grants individual private citizens the power to interfere with the freedom of other private citizens, package that right up into a tradeable entity and call it property. Get a wide range of people to buy into this property scheme thus ensuring they have a self interest in believing they earned that power, that they deserve the right to interfere with others’ freedom, that to take it away would be an injustice. You’ve then got an entrenched power base to support the privilege of the few who greatly benefit from the system.

      See also: capitalism (n), feudalism (n).

    • I’m not opposed to Copyright, although I think 50 years is plenty of time to earn a return on your work. Trying to make everyone wait 100 years is ridiculous.

      The patent system is a confusing minefield, no one really understands it and only the lawyers win. It really needs a cleanup, but I doubt we will get that, so at least try to stop the extension of time limits.

  4. Australia is a network of countervailing privileges. Some interests are net winners out of this arrangement and others are net losers. It would be difficult to quantify precisely who fits into either category.

    Historically, Australia, like all other polities, oscillates between consensus and conflict over how cross subsidisation works. These oscillations are generational in duration. It would take too long to describe each of them.

    The last oscillation was from the Menzies consensus of protection all round for white males to the Keating settlement which was and is more contested. The Keating settlement favoured finance capital and extractive industries. It weakened the labour movement but offered compensations. Since then the two major parties vie over targeting and fine-tuning those compensations. They bid with government programs, tax breaks and cash giveaways for the marginal vote in a small number of marginal electorates. Progressive direct taxation declines and indirect taxes and royalties increase.

    Politics becomes more vituperative because the bidding war is highly focussed. Most of the population is unengaged. Australia’s political economy seems to work well enough whichever party operates it. Who cares who wins?

    The only potentially insurgent group is the Greens. But they too are drawn into the contest to win by the old rules.

    Thus it seems that while the mining boom funds it, a new consensus is accepted with its complicated and tangled network of cross subsidisations. Where there is consensus, there is little motivation for challenging of privilege. This era of consensus will come under challenge when the mining boom busts. I don’t propose to make a fool of myself by attempting to predict the bases of the new consensus.

    Bottom line. If you want to eradicate privilege. Don’t start from here.

    • So for you, it is all about a murky and unknown process called ‘consensus building’? For sure, building support is in the mix, but it seems as if you take the whole notion of picking out some privileges and trying to get rid of them as hopeless, or else up to forces no-one can really understand and influence? If not, who does have agency here?

      • Nup, I think it is fairly clear that I believe that privileges are eradicated by consensus BREAKING.

        And it isn’t very a “mysterious” process.

        But lack of mystery doesn’t make success likely.

  5. Moreover, the medical specialists have organised themselves into cartels wherein they as a group decide on the minimal requirements of new competitors, ie more specialists, via the number of training places.

    Except that the cartel has already been broken by medical tourism, and that’s the correct outcome. If you think that India or Thailand provides value for money then you should spend your money and take your chances in those countries. If you think the Australian cartel provides better quality service (for whatever reason) then you should get the work done here. Individual choice keeps the system honest.

    Don’t they moan about medical tourists though? Poor dears.

    Don’t you feel sorry for me though? I’m a programmer up against all these dang Indians, who live in India! What is my government doing to protect me?

  6. If you want one way to get around some of the medical mafia, one way is to create non-doctor specializations that do what doctors do now. This is the idea of the nurse-practioner model, using clinical psych people instead of psychiatrists (who unfortunately are trying to set up their own mafia), and why some of the other allied health care professionals have come into existence historically. So if you can identify any repetitive things doctors do (and many do pretty repetitive stuff), a new specialization would work to reduce the total number of doctors needed. Off the top of my head, things like all the check-ups and vaccinations pediatricians do come to mind but there must be many other possibilities.

  7. It is perfectly clear that our politicians have too much power. Paul’s analysis of human nature—always trying to privilege ourselves—is not true but it is a waste of time trying to show economists this, even though game theorists consistently demonstrate that many people do not maximise their privileges. Still, one might be excused for assuming it did apply to the sort of men and woman who run our mining companies. From their point of view, if you want a privilege, you turn to the politicians and if you can persuade them, you’ve got it. This is a stupid way to run a polity and the fix is to take away the privilege-granting power from the politicians.

    Paul did ask for examples of privileges but I think he was after some systemic causes and cures and at the end of part two he throws out a hint about PR versus first past the post (FPP) elections. There were a couple of contributions on this but then the discussion degenerated again into the argy-bargy stuff about this or that policy being a privilege. We have been arguing about the funding of private schools for at least 60 years. Does anyone ever change their mind?

    I find it frustrating. Why not settle the matter? Put it to the vote and then we can move on. How did Catholic Italy solve its abortion debate? Voted on it. America will go on arguing over abortion forever. If they voted on it, it’d be behind them. As long as the NRA can buy politicians the outcome will be bad—but with a national vote it would be settled. It is not going to happen; the US has never had a national referendum. The way it is, public discusssion of policy is empty venting of steam.

    I think institutions—constitutional structures, electoral rules—are everything. Perhaps culture affects political efficacy but you can never prove or disprove it and you can’t do anything about it. So institutions such as the voting rules are everything.

    To the business of PR versus FPP. Political scientists distinguish “consensus democracy” from “majoritarian democracy.” The indispensible reference is Lijphart’s very readable “Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries.” I see there is a new edition. From Amazon: “In this updated and expanded edition of his classic text, Arend Lijphart offers a broader and deeper analysis of worldwide democratic institutions than ever before. Examining thirty-six democracies during the period from 1945 to 2010, Lijphart arrives at important—and unexpected—conclusions about what type of democracy works best.” I have the 1984 and 1999 editions and I wouldn’t mind perusing this new one.

    We don’t have FPP in this country but where marking preferences (in single-member districts) is non-compulsory, it can have the effect of FPP. This makes the election quite a flawed sampling of the electorate’s opinion. It cuts the ground from under the feet of independents and greens whose power (in single member electorates) comes from their ability to negotiate the granting of preferences. This can be seen as a “consensus” feature. Australian parliaments have majoritarian lower houses but have “consensus” modifications all over the place.

    “Majoritarian” means essentially the concentration of executive power. The perfect majoritarian setup is single member districts, FPP, a single house of legislation, non-federal, only two effective parties, no judicial review, and a central bank dependent on the executive. The UK approaches this; NZ before it adopted the West German “consensus” model was even closer. Lijphart quantifies all these factors. Majoritarian is a misnomer for often (and in Australia usually) it allows a minority to rule because the single member districts allow a voting minority capture a majority of seats. The spectrum majoritarian-consensus is the spectrum oligarchy-democracy.

    But notions that our lower houses should be PR are naive. Tasmania’s lower house is PR and, after about 80 years of working like a majoritarian house, it finally functioned in the consensus way in the early nineties and Labor became dependent on the Greens to legislate. The upper house in Tas is peculiar (non-party, no general elections) and has its own mind so the government had to negotiate everything twice. All our upper houses are now not dominated by a single party so legislation has generally to be negotiated there. In Tas the two majors got jack of it and colluded to change the constitution to kill the greens. And that is what would happen elsewhere in Australia if PR were introduced to the lower houses—the two major parties would change the rules and wipe out the minor parties. At least in the states they would. Federally it would be more difficult but, anyway, it is not going to happen.

    • I am not really moved, or convinced by, the argument that OPV cuts the ground from under minor parties and independents. They can still negotiate preferences. It’s up to their electors to decide whether or not they deliver. Compelling electors to vote every preference has the precise reverse effect to your claim.

      Australia is notable for the artificial dominance of the Labor/Coalition duopoly, Katter’s famous Woolies and Coles democracy.

      In the vast majority of cases it forces you to give your vote to one of them. Sure you can have your first preference count for someone else, but unless you are in a seat that is winnable for an independent or minor party ultimately you are conscripted into supporting the duopoly with your final preference, where it ultimately counts.

      • Hit the button too fast.

        I meant to add that in my view just moving to OPV would not be enough, if you want consensus democracy you need PR.

        It is also worth thinking about the size of our parliaments. By world standards they very small and that has a serious impact on the quality of democracy. before going into the the analysis it is worth saying that small parliaments are a shibboleth for ‘small government’ in Australia. Premiers who happily expand the total size of government, the size of the executive, and the size of their own ministerial staffs happily shrink parliaments on small government grounds. It’s hard to see how the cost of parliament can effect the economy when it is so tiny compared with the costs of the executive as a whole and the nasty cluster of courtiers, flunkeys and henchcreatures surrounding the ministers. It’s easy to see how fewer MPs expands the powers of the executive.

        In the excellent, but sadly expensive Seats and Votes: The Effects and Determinants of Electoral Systems the authors argue, on empirical and theoretical grounds, for the cube root of population as the most desirable assembly size. (Disclosure, one of the authors is a friend)

        They argue that democracy maximises as the assembly size approaches the cube root of the population. That would be a House of Represenatives of 282 members. We have a long way to go.

    • There are problem with simply voting on things. Some are practical. Let’s say you want to break down the medical cartels. What do you actually vote on here and how much will it actually cost just to set up the vote? What about the other 100 cases of privilege where many of the arguments are presumably technical (e.g., level of family tax etc.) ? Thus the idea works well on clear-cut issues like abortion, but I can’t see it working well at lower levels.

      Apart from that, it doesn’t work again majority groups giving themselves privileges. Let’s say we decide that FTB-A or something like that which lots of people get is a privilege. Who is going to vote themselves out of that even if one could set up a vote with some reasonable alternative?

      There are problems with the flip-side to. It’s quite reasonable to suspect that some minority groups might well be voted out of things which are potentially a good idea (e.g., ATSI subsidies).

  8. Your first para, Alan, is not facing the facts. Optional PV just means the non-major candidates don’t have any preferences to negotiate. Compelling PV means everyone has to vote for every candidate and thus the last, or second-last, preference for a major party which you are compelled to state, has some influence on policy outcomes. We do indeed have a duopoly, however the actual majoritarian governing is extensively modified by the influence of the minor candidates, even though they cannot get elected. These states that have made preferencing optional didn’t do it to help the minor parties.

    “…ultimately you are conscripted into supporting the duopoly with your final preference…” Yes, but it makes no difference—the major party has won the seat. That is the big downside of compulsory voting: safe seats.

    “Seats and Votes” is another fine, plain-talking piece of political science (and the authors are admirers of Lijphart). For those who never heard of it, the cube root rule says that the number of representatives is the cube root of the population or, more precisely, the cube root of twice the number of voters. It fits within plus or minus 50% practically everywhere, democratic or otherwise, and even applies to large organisations like unions. 50% may sound like a lot but that it should be that good is a remarkable empirical fact of mass behaviour.

    The authors also manage to deduce it theoretically. They make a couple of assumptions about what a politician’s job is, assume pollies want to do it as little as possible, and with an elegant smidgeon of differential calculus hey presto, the optimum number of pollies is the cube root of twice the voters. Given such a strong relationship you have to view large deviations as likely to be badly governed and author Rein Taagepera was very keen to see the rule followed when the land of his fathers, Estonia, became free in the nineties.

    As far as Australia goes, I see no reason to ignore the Senate when applying the rule and if you take both houses of the federal parliament I think the rule works out fairly well, particularly if you take the population when the Senate was last changed. Years ago I checked and all the states were on the low side with Tasmania being a big outlier after the two majors had connived to reduce the lower house (from 35 to 25 members I think).

    PR is a great idea but forget it for our lower houses—if introduced the majors would nobble it as in Tas. The pollies just won’t put up with it. So forget it. As for Queensland, it would be nice but it isn’t likely and so Qld will lurch forever like New Zealand used to. Though Qld has the advantage that when it gets really bad we can send Four Corners in to sort it out.

  9. Conrad—
    “There are problem with simply voting on things.” Maybe. What’s the relevance? Everything has to be voted on—by cabinet, by parliament or by the people at referendum. It is just that as long as the people don’t get a look-in, the politicians have exclusive power. They can be manipulated. The people might also be manipulated but it’s public and more difficult, more expensive. Are the people dumber than the pollies? The evidence of performance would not support such an assertion.

    Technical arguments? Politicians weigh up technical arguments before voting? I thought they looked to see which party they belonged to.

    “…we decide that FTB-A.. is a privilege.” There is only one way “we” can decide that, namely by voting on it.

    “It’s quite reasonable to suspect that some minority groups might well be voted out of things which are potentially a good idea.” You think so? Surely I have sometime in the past challenged Troppo readers to produce examples where there was oppression of a minority by a national or state referendum. No one has produced even one, though there are thousands of referendums around the world to choose from. Compare this with the record of oppressions by politicians.

    • “Surely I have sometime in the past challenged Troppo readers to produce examples where there was oppression of a minority by a national or state referendum. ”

      Yes, Algeria was one example, and I imagine the current Egyptian government being elected in also qualifies.

    • I seem to recall one or two referendums on marriage equality in the US in the recent part. I recall that the Swiss electorate denied women the vote until 1959. I recall one or two thoroughly nasty referendums in the southern US during the civil rights movement when measures to restrict black voting were relatedly endorsed. I recall the infamous Proposition 13 which massively privileged existing property-owners at the expense of future property-owners and anyone in need of government services. Contrary to your claims, the position of most authors on the subject is that its not a terrific idea to make fundamental rights subject to a popular vote.

  10. Until 1948 the senate was elected by a method of voting that usually resulted in the government holding a huge majority. It was not all uncommon for the government to hold all the seats. STV-PR, the way we elect the senate now, was introduced by a high-minded and pure-souled government concerned only with pursuit of the good, the true and the beautiful in electoral matters. Ummm, no…

    The ALP, facing almost certain defeat at the next general election, decided proportional representation was a way to at least retain some presence in the parliament after that defeat. To argue that the state governments which introduced OPV were not high-minded and pure-souled and therefore OPV is a bad system is, therefore, to argue that STV-PR is an equally bad system that should equally be opposed.

    Conscripted votes from people who do not wish to cast a final preference for either of the ugly sisters are an abuse of power,plain and simple, and enable the said ugly sisters to claim popular support greater than they actually enjoy. It would be absurd to claim that result is a good thing.

    The problem you claim, that OPV would reduce the power of minor parties is pragmatic rather than principled. I would argue that principle comes first, and its a bad principle to force people to vote for parties they do not wish to vote for. But I don;t actually need to get that abstract or high-minded. Your pragmatic claim is simply wrong.

    NSW has had OPV since 1980. As Antony Green notes:

    Overall optional preferential voting has a principled advantage over full preferential voting in cutting the informal rate, and in not forcing voters to express preferences they do not have. Optional preferential voting would also allow the mess of the Senate’s group ticket voting system to be abolished.

    But the Coalition better be sure it supports optional preferential voting on principle rather than out of self-interest.

    The NSW Labor Party argued principle in introducing optional preferential voting in 1980, but at times since has lived to regret the decision.

    Since 1980 NSW has had minority governments dependent on independents, indeed NSW has had a higher number of independents in its lower house than any other state. Minor parties have happily negotiated preferences with major parties. None of the things you claim have actually happened.

    The consensus of most political scientists is that preferential voting, as structured in Australia, is one of the main reasons for the entrenched duopoly. See for example Mathew Shugart, one of the authors of Seats and Votes on the subject.

  11. Conrad-
    “Yes, Algeria was one example, and I imagine the current Egyptian government being elected in also qualifies.”

    No it doesn’t. An election is not a referendum. At least, not a referendum on a policy matter which is what is here under discussion. The whole point is that elections do wind up oppression of minorities — examples are simply countless. When policy matters are subject to popular vote that power curbs the politicians.

    As for Algeria–why go there to seek an example? We are talking about proper polities where the politicians do have too much power but we are not discussing dictatorships. There are thousands of referendums to choose from in decent polities. I didn’t know Algeria ever had a referendum and if it did, it would have been about as genuine as those in Germany in the 1930s which recorded results like 98% agreement.

    • And the Swiss and US examples? The Swiss referendum to ban minarets? The string of Bonapartist plebiscites in the nineteenth century?

  12. Alan—
    Referendums that failed on marriage equality and on women’s franchise are not responsible for the oppression. On the contrary, they were ways to bring the (alleged) oppression to public attention, ways that, without the referendum facility, would not have existed. That a referendum fails means that the public just decides on the status quo. They decide, for the time being at least, to continue to suffer the oppression which the elected politicians had been exercising over recent centuries.

    The same would presumably apply to your nasty referendums in southern US. But you’d have to give references. I know nothing of them.

    In Switzerland the referendum for women’s franchise in 1959 failed. One reason was that the women’s movement campaigned against it. It was put again in 1971 and succeeded. Switzerland is the only country in the world where the men actually gave women the right to vote. It counts for something too, for there the right to vote is the right to rule.

    California’s Proposition 13 is tiresome. It oppressed no minority and has been endorsed in subsequent referendums. I read recently that the state has got its budget into surplus despite the depredations of referendums. So cme on: show me a referendum where a minority actually got oppressed.

    You would think that there must surely be a referendum or two somewhere that oppressed a minority. Geoffrey deQ Walker reckons that it happens at municipal level in the US and you can imagine some pretty grubby parochial intrigues. I should think such blemishes would be nothing compared with the chicanery that municipal elected officials get up to.

    “…the position of most authors on the subject is that its not a terrific idea to make fundamental rights subject to a popular vote.”

    Oh quite. True even in Switzerland, where every law is subject to a referendum if 50,000 signatures are gathered and where the constitution (in which all the rights are set out) is subject to alteration by referendum if 100,000 signatures are gathered. Indeed, I should guess the majority of political scientists there are against it. To the others (of whom there are also plenty) this is a prejudice, an inability to look at the facts rationally. There was a special issue of West European Politics years ago on Switzerland and it was sub-titled “The Labyrinth”. Ludicrous. It’s the most open polity on earth. A special issue on Italian politics would merit that word.

    Their own (peer reviewed) Swiss political science journal is (or was—haven’t looked at it for over a decade) similar. Contents incredible—all these authors whingeing about their country’s system and no substance to any of it. I picked a relatively reasonable one and had an email exchange with its author. I wanted to try and see if I could get into the heads of these people. What really motivated them? I quoted various bits and pieces and I remember saying that the argument they were putting was the equivalent of: “The sun is shining, the birds are singing, children are playing, isn’t it awful.” They are complaining about a country with no natural resources and poor soil that is one of the wealthiest. It has also had the world’s most effective foreign policy—and every treaty has to go to a national referendum. Somehow, Conrad, the people can make these decisions.

    An office mate and I coined a phrase: “There is no such thing as a democrat.” Not exactly snappy but we found it over the years to be a pretty good rule of thumb. People just can’t look at the facts and draw the logical conclusion. We are all so tribal. Well, of course, it’d be all right if I had referendum rights but there are all these ignorant people… No, no, better to trust the politicians.

  13. A referendum,like Proposition 8, which specifically revoked the constitutional right to marriage cannot be called, in any place except Neverland, a way ‘to bring the (alleged) oppression to public attention’. You asked for one example. You have it. Your bracketed ‘alleged’ does not change a clear case of the majority oppressing the minority into its opposite. You did not say it happens only occasionally. You said it never happens.

    California has indeed moved towards rebalancing its budget, by a referendum that partially reversed the Proposition 13 strictures.

    Perhaps the Virginia Marriage Amendment is a better fit for your definition than Proposition 8:

    Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

    Or is that also merely a way ‘to bring the (alleged) oppression to public attention’?

    Article 72(3) of the Swiss constitution, enacted by referendum on a popualr initiative, reads:

    The construction of minarets is prohibited.

    Is that another example of a way ‘to bring the (alleged) oppression to public attention’?

    Were the series of South African referendums that adopted the two apartheid constitutions examples of ways ‘to bring the (alleged) oppression to public attention’?

  14. You shift ground, Alan. You were previously talking about referendums that failed, i.e., failed to lift an oppression. They are a way (not “merely” a way) to bring the matter to public attention, attention only holding a referendum can bestow. As for these marriage referendums which passed, did they change anything? Or did they also just formalise the status quo, oppressive as it may be? They didn’t make homosexuality a crime—which is what representative governments did.

    What is the oppression in the case of the Swiss minarets? If a government had decreed that minarets were allowed and the people had had no redress would not they have felt oppressed? Conflicted political decisions have losers and the losers will be aggrieved—but “oppressed”? It seems to me that this referendum resolved an urban planning conflict—neatly and with considerable finality—that would, like abortion in the US (which “oppresses” the unborn child), have been quite awkward for a government itself to decide.

    South African referendums? South Africans didn’t even have the right to vote. What minority was oppressed by those apartheid referendums? In fact it was the usual situation of a minority oppressing a majority—commonly what elected representatives do and what I suggest genuine referendums avoid.

    Don’t you think it is rather desperate to go looking for examples in a regime like old South Africa? I mean, isn’t it interesting that there don’t seem to be any referendums ordering that women of inferior race be sterilised, that homosexuality is a crime, that AIDS is not caused by HIV, that half-caste children should be taken from their mothers without due process, that certain races be dispossessed and confined to reserves, that young men born on certain dates shall be conscripted, that the communist party be proscribed—and goodness knows how many other grotesqueries perpetrated on both minorities and majorities by procedurally correct democratically elected governments.

  15. You shift ground, Alan. You were previously talking about referendums that failed, i.e., failed to lift an oppression.

    That is simply untrue. Where have I stated that I was talking about failed referendums? It really is a miraculous bit of parsing for you to decide that only when referendums fail to lift an oppression do they conform to your magic principle. In any case, there are many examples of referendums in the US where referendums failed to lift an oppression or imposed an oppression. So much so that there is a whole branch of jurisprudence related to when the US supreme court will set aside a referendum that violates rights.

    I am not going to get into a back-and-forth about particular cases. I doubt anyone is really interested in an absurd argument about whether the right to marry cases or the minaret case are or are not oppressive. The issue is much simpler than you claim.

    As Reinard J said in the US Ninth Circuit Court of Appeals:

    All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633 (1996).

    I don’t oppose referendums or direct democracy. I do think there need to be limits, as there are in the US, on referendums that violate fundamental rights. It is simply factually wrong, and rhetorically disastrous, to wish away any case that doesn’t match your claims. There is a reason the US courts have an extensive jurisprudence on these issues. There is a reason that the European Court of Human Rights has accepted a case on the minaret ban.

  16. You’re right, I assumed you were talking about failed referendums. My apologies. As a result we were talking at cross purposes—slightly.

    Or maybe not so slight. You quote a judge on that marriage referendum. Are you now telling me that the referendum was overruled and so oppressed no one? I looked at your link but couldn’t figure out what the actual result was.

    Where judges can overrule a referendum, the referendum isn’t genuine. It means that when people go to vote they are not making the decision but merely stating a position. They know that and they vote accordingly. The people are not ruling.

    Where you have a sequence of decision-makers, say: cabinet, lower chamber, upper chamber, high court, all but the last are not deciding anything; they are just stating an opinion.

    If you trust judges you like that but the evidence is that it doesn’t work very well. It works better if the people rule.

    In Switzerland the sequence is cabinet, then one chamber then the other, then conference to resolve differences and then referendum. And the referendum is final. The constitutional court can say nothing about any law passed by the federal parliament or by the people. The court is not even allowed to offer an opinion. In Switzerland the people rule and it works brilliantly.

    But now you tell me the European court can intervene. Can it really overturn the Swiss constitution? I am flabbergasted. Well, the people must have agreed to the court having this power at referendum but I reckon that if it happens it will be a colossal fracas within Switzerland and I can see a referendum being generated to abrogate the power. How many years before the court gets around to the minarets case?

  17. Alan—back to your optional preferential voting…

    “The problem you claim, that OPV would reduce the power of minor parties is pragmatic rather than principled.”

    You don’t say. Irrespective of principle, I think Antony Green is wrong. Now, you don’t want to be forced to vote for Lab and Lib. In that case, if it is optional you won’t. Thus you will tick the Greens candidate (say) and maybe leave the rest blank. And with that, you deprive your preferred candidate of the only weapon she has. If NSW independents negotiate optional preferences, I am glad to hear it but perhaps it is because they may actually get elected. I was assuming (pragmatically) that Lib or Lab will get in and the Greens candidate will certainly fail—and in that case optional preferences must surely take the candidate’s bargaining chip away.

    I don’t understand why Antony Green says the Senate’s group ticket voting is a mess. Rather too tidy, I’d have thought. I agree that it would be better if ticket voting were not available—thus making it rather messy.

    Officially—from the Hansard—it seems all political action is taken for principled reasons. They always argue on the basis of principle and only those who oppose it see it as unprincipled and they, of course, are scoundrels. I have read a fair bit of Hansard and would say that when politicians meddle with the constitution (e.g., electoral rules) it virtually never conflicts with personal or party political gain (probably short term gain). It is not always outright chicanery but that they misjudge and it comes back to bite them is fairly common. I know a retired political scientist, expert on legislatures and electoral systems, who is fond of observing that in politics all good things happen by mistake.

    The Senate in 1949 is an example, as you say, but since then all the states have subsequently done the same thing in their upper houses (except Tas) and they have done it at least half-knowing how it turns out and with much wailing and gnashing of teeth. It is quite amusing: successively, in NSW, SA, WA, they stumbled backwards, kicking and screaming, into it. I speak metaphorically and psychologically; what the politicians literally did, was to raise their hands in both houses and vote for it. Wondrous phenomenon, politics. Finally in Vic in 2003 it was not so much with gnashing of teeth as with an air of resignation to a fate to which they were doomed because no viable alternative. I don’t know what to make of Antony Green objecting. Does he know of an alternative?

    I looked at the Shugart blog you pointed to. Interesting. Most people would agree with Lijphart that it is having single member electorates (and majoritarianism generally) which is principally responsible for duopoly and that preference voting would break that down to some extent. Shugart suggests, though, that where, as in the UK, FPP is actually functioning with three parties, going to a preference system would push back towards two parties. Not sure I buy it but it’s interesting.

    • … and in that case optional preferences must surely take the candidate’s bargaining chip away …

      Of all the bizarre theories… how could this possibly work?

      The candidate has exactly the same bargaining chip under optional or non-optional preferences. Please go through the steps of what happens at an election and explain how the candidate uses this “bargaining chip”.

      • Proposition 8 was held contrary to the US constitution by the US district court. That decision was upheld on appeal by the circuit court of appeals. The supreme court has now agreed to take the case.

        You cannot claim to know that the majority never oppresses the minority by referendum and not know that in the US courts regularly review the constitutionality of referendums, regularly hold that the majority has oppressed the minority, and regularly invalidate referendums. This was more common in the past than now, when local and state referendums were frequently disguised attempts at oppression of African-Americans. Those cases are suddenly live again in the current wave of attempts to oppress the gay minority by referendum.

        In 1996, the Supreme Court reviewed a case which implicated the rationale underlying decisions such as Hunter and Crawford. In Romer, the Court again considered a repeal of anti-discrimination laws through direct democracy. There the people of Colorado, via statewide referendum, voted to amend the state’s constitution to pre- clude all legislative, executive, or judicial action at any level of state or local government aimed at protecting the status of persons based on their sexual orientation, conduct, practices, or relationships.35 The amendment specifically targeted gay men, lesbians, and bisexuals. The Court held Colorado’s Amendment 2 unconstitutional because, among other things, it was not rationally related to any legitimate state interest. In pursuing this line of reasoning, the Court suggested that the right of the people of Colorado to pass a measure which has the effect of singling out a specific group of persons and denying themprotection could not outweigh the right of those persons to participate in the political process.36 According to the majority, Amendment 2 denied those groups of persons their right to seek protections under the law. The right to vote in the exercise of direct democracy, in this case, had to succumb to the civil rights of gays, lesbians, and bisexuals.

        Sorry, I just don’t understand your objection to OPV. Candidates have to persuade electors to vote preferences in the same way they have to persuade electors to vote for them right now.

        It is true that single-member districts entrench the leading parties. It is also true that a number of countries with single-member districts, Canada, India and the UK spring to mind, have nothing like the duopoly, or the extreme party discipline, that prevails in Australia.

  18. Bizarre, Tel? I’m baffled. If you vote for a minor (who cannot win) and don’t mark your major party preference then the candidate has no preference to distribute.

    Assuming a seat that either Labor or Coalition will win, bargaining occurs and a minor candidate agrees to second preference Labor, say. Come the election, she has to persuade her supporters to write number 2 against the Labor candidate even though they hate the major parties. Are they going to? Some will, some won’t. If a significant number don’t then Labor is not going to bother bargaining in the first place.

    • Bizarre, Tel? I’m baffled. If you vote for a minor (who cannot win) and don’t mark your major party preference then the candidate has no preference to distribute.

      Can you explain a circumstance where the candidate does have a preference to distribute (other than their own vote of course)? Under any known voting system?

    • Come the election, she has to persuade her supporters to write number 2 against the Labor candidate even though they hate the major parties. Are they going to? Some will, some won’t.

      You think that making preferences compulsory will also make this candidate more persuasive, and convince her supporters to be more loyal? You are freaking me out here.

      • I know. I would’ve thought elections were supposed to be about candidates persuading people to give them their votes, not being compelled to do it.

  19. “It is also true that a number of countries with single-member districts, Canada, India and the UK spring to mind, have nothing like the duopoly, or the extreme party discipline, that prevails in Australia.”

    Nothing like? Lijphart’s effective number of parliamentary parties, 1971-96 are:
    Australia 2.19
    Canada 2.35
    India 4.11
    UK 2.20

    Party discipline has other measures. For example the percentage of cabinets that contain only one party (1971-96):
    Australia 85.3 %
    Canada 95.2
    India 52.5
    UK 93.3

    Or the index of executive dominance:
    Australia 4.02
    Canada 4.17
    India 2.08
    UK 5.52

  20. Certainly I know that referendums are struck down by US courts. I had indeed been wondering if you were going to trot out the Colorado example.

    But it was struck down! So it didn’t oppress anyone, did it? Presumably, it was only by the grace of the wise judges that oppression did not occur.

    How strange and marvellous then, that the people of Switzerland don’t need such wise judges to keep them from committing injustices.

    Something in their Alpine air, perhaps? The explanation is straightforward and I gave it in the previous post.

    The evidence of history is: the more democracy, the better the governance. And by miles. Yet most people would say they prefer judges to rule. Ah well, “there is no such thing as a democrat.”

  21. The number of one party cabinets is not an index of party discipline. The almost total lack of conscience votes and crossing the floor is.

    The index of executive dominance from Table 7.1 of the 2012 edition covers a longer period 1945-2010 (earlier edition numbers in brackets):

    Australia 9.10 (4.02)
    Canada 8.10 (4.17)
    India 3.33 (2.08)
    UK 8.12 (5.52)

    The shift would be explained by the long Howard premiership.

  22. It is simply logically indefensible to argue at the same time that the people always and everywhere get it right and that it’s okay when they get it wrong because the courts can fix it for them.

  23. So why were you claiming Australia is much more of a duopoly than the Canada and the UK if you have the 2012 bible on hand which says they are basically the same? What about the effective number of parties in the four countries? Also still the same?

    Curious that the index of executive dominance has approximately doubled in all four countries. I doubt John Howard is responsible for that.

    If you read the book you can think in terms of majoritarian and consensus, not in terms of the simplistic and piecemeal items of PR and FPP.

  24. “It is simply logically indefensible to argue at the same time that the people always and everywhere get it right and that it’s okay when they get it wrong because the courts can fix it for them.”

    Tripe. You might read what I wrote rather than what you prefer to criticise.

    Thank you for the exchange. What I have learnt, from a motivated and knowledgeable anti-democrat, is that the worst instance of the people ruling is the banning of minarets in Switzerland. This, apparently, is the worst oppression inflicted by the people ruling, anywhere, ever. To compare it with oppressions perpetrated by elected representatives would be farcical.

    It is not just the worst but the only. That instance is the sum total of “oppressions” where the people rule. Your American examples of oppressive referendums were not examples of rule by the people—as is proved by their overturning by courts. And it seems even they were not initiating oppression but were formalising the status quo (which was installed by legislators). Other than that you made vague claims about the deep south and apartheid South Africa where the people did not even have the right to vote, let alone rule.

    America runs a sort of pat-on-the-head democracy. The people are children who are allowed to play at ruling. From its beginning, US political history can be read as a struggle for democracy, a sort of desperate twisting and turning, periodically interrupted by catastrophic crazinesses and accompanied by a lot of eloquent (but ultimately sad because boastful, sanctimonious and sentimental) rhetoric to try and convince themselves. A lot of frantic experimenting with this and that but never really committing. Never committing to democracy. Indeed, often joining the sainted Tocqueville to regard democracy with suspicion.

    As I understand it, their referendums were introduced in an attempt by legislatures to counter the political stranglehold of big business. But they cocked it up (of course). In California you need something like half a million signatures to get a proposition up. It is too big a hurdle and requires professional signature collectors. So referendums are for the cashed-up. And then if you do get something through, the court can overturn it! That’s a pretence of rule by the people.

    Some US states have facultative referendums but the referendums we hear about are to make a law. Who granted the people this right? Some legislators, the same who said it needs half a million signatures. In Switzerland the people rejected—at referendum—the power to make a law by referendum. With 100,000 signatures (Up to the mid 1990s it was 50,000; they held a referendum to double it.) they can demand a referendum to change the constitution. But the people don’t have power to make ordinary law. The facultative power is to vote, as a sort of third chamber, on bills. Consequently, a major aim of government is to frame laws that will avoid a referendum and most bills pass parliament with 100%, or near 100% of MPs in favour. Despite these efforts, the people reject about 3% of bills. These powers have all been awarded to the people by the people themselves. There is no king or president and the constitutional court is not permitted an opinion on the constitutionality of a federal law.

    This “wisdom of the crowd” has been going since the late 19th century. Surrounded by wars they remained at peace (their neighbour, with the same language and highland culture, joined Hitler). Switzerland has no tariffs and has one of highest per capita incomes, well ahead of ours. It is, with Australia, an outlier in terms of the foreign-born proportion of the population. That’s the explicit choice of the people there. Immigration here is almost as big a hot potato as it is there—why don’t we hold a referendum and settle the matter?

    It is a paradox that the average Swiss citizen has much the same opinion about the people ruling as you, Alan. They don’t believe in it. Yet all attempts, in Switzerland and in other countries, to get the people to scale back their referendum powers have always failed. Odd. On the other hand the Swiss do express very high contentment with the way their country runs.

    One day perhaps the people will rule and the world will be a far better place. Institutions are everything. The guiding principle for good institutions is that the people rule. As long as we hem and haw and skulk around democracy like a cat around a bowl of hot porridge we won’t have optimum institutions. The lever to start this might be Switzerland insisting that it will only join the EU (The people twice rejected membership—how smart was that?!) when the EU provides its citizens the same powers as Switzerland grants its citizens. Well, in 2525 if man is still alive.

  25. You have not demonstrated that there are no cases of the majority oppressing the minority. All you have done is some fairly dramatic parsing to wish away results you do not like, including your memorable claim that referendums are not about enacting laws but sic ‘ways to bring the (alleged) oppression to public attention’.

    Proposition 8 was passed in 2008. Although the courts have held it contrary to the constitution and the bill of rights they have granted a stay of execution pending review by higher courts. The day before it came into force same-sex couples were able to marry. They have not been since.

    You said:

    But it was struck down! So it didn’t oppress anyone, did it? Presumably, it was only by the grace of the wise judges that oppression did not occur.

    Over four years is quite a long time to wait to be allowed to get married. How will your magic principle that the majority never oppresses the minority principle give those people back their four years? How will your magic principle cure the denial of the vote to Swiss women between 1959 and 1971?

    The minaret ban is not an urban planning issue. If you want to build something in Switzerland you seek planning permission like everywhere else on the planet. Mosques and churches get refused planning permission regularly in Australia and I’d be surprised it Switzerland was any different. Oddly enough, many of the anti-civil rights referendums in the US were also disguised as planning measures, for example the proposition in California designed to repeal the housing anti-discrimination laws by empowering landholders to refuse to sell or rent to anyone they liked.

    For the record, it offends me equally that, in terms of shari’a, no church bells have rung in Alexandria since the Muslim conquest of that city in 641 AD.

    In Switzerland, Christians can add towers to their places of worship. Buddhists can add towers to their places of worship. Referendomagists can add towers to their places of worship. Muslims cannot. It is a plain and simple case of the majority oppressing the minority by depriving them of the right to manifest their religion.

    You cannot simply say that more referendums=more democracy. Any way of making a decision can produce results that are democratic or undemocratic, and referendums are not magic. When courts find that a referendum result is contrary to the constitution what would you have them do, ignore or suspend the constitution?

    The European Convention of Human Rights, which Switzerland has signed and ratified, provides:

    Article 9

    Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
    Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

    If the European Court of Human Rights finds that the minaret ban is contrary to Article 9 what would you have them do? Wave their hands in the air and magic it away?

  26. Sorry to be so dilatory—have a few distractions at the moment.

    First you indicated that Proposition 8 was overturned; then you confirmed it and now you say it is not overturned. Okay, at worst the situation is that we have two cases, not one, of oppression inflicted by referendum. They are the Swiss minaret Verbot and Virginia forbidding gay couples to marry.

    If these are the worst cases then clearly the people rule far more fairly than representatives do. Even in the land where the national ethos is win-at-all-cost, where to vote in a referendum is not to make the decision but to stake an ambit claim, and where the cost of a referendum distorts its claims to be democratic—even there, the most extreme position the people have come up with is a gay marriage restriction. Really! This will doom people to the sort of lives of humiliation and misery that Michael Kirby has had to suffer. This is the sort of “oppression” that shows how shockingly bad democracy can be.

    Why does it count so much? It is merely what representative democracies have always done. For them this is NORMAL behaviour and our federal govt is a case in point. Why the double standard?

    “You cannot simply say that more referendums=more democracy.” That is exactly what I didn’t say, and at some length.

    “When courts find that a referendum result is contrary to the constitution what would you have them do, ignore or suspend the constitution?”

    Nothing! Do the people rule or the judges? It is not a theoretical question—it’s an empirical one: in Switzerland there is no court and it has been like that since it started. The result is possibly the best run country on earth. If you like courts you should be worried about Holland where no court can pronounce on a law and the same also applies in the UK.

    In California it wouldn’t be so bad if the judges pronounced on the constitutionality of a referendum proposal beforehand. But that would be sensible. And that would mean the people at the polls would actually be making the decision. That would be genuine rule by the people. Instead, though, they go to the expense of the referendum and then Judge Dredd decides whether he will deign to allow it or not.

    “If the European Court of Human Rights finds that the minaret ban is contrary to Article 9 what would you have them do? Wave their hands in the air and magic it away?”

    It’ll be interesting. The Swiss people gave the Court that power at a national referendum, probably after much internal debate. If the Court pronounces on the Swiss constitution, I expect it will be quite unprecedented. There will be a lot of soul-searching and the isolationist inclination, always very strong in Switzerland, will be further strengthened.

    By the way, the biggest offender against human rights—the country that has the most cases to answer before the Court—is the mother of parliaments itself.

  27. Preferential voting (optional or not ) seems a fairly minor example of privilege in the scheme of things.

    A better example of questionable privilege , cloaked in a very rich fudge, might be the Copyright collecting societies and their closely linked Arts/Author/musician lobbyist Societies . They have quasi-monopoly to actual monopoly market powers, are always keen on statutory(compulsory status) and are still lobbying for taxes hypothecated to them on things like memory devises, more than 20 years after the high court squashed the blank tapes levy.

    • And yet, there is a very strong correlation between strict IP laws where the rent-seeker is king, and majority democracies, where the effective number of parties is low. The US and the IP oligarchy only had to persuade Howard and Latham of the virtues of the IP regime entrenched by the Free sic Trade Agreement for it to become law.

      That’s particularly bad policy for Australia because with no bill of rights Australian law lacks any potential for the bill of rights-based exceptions to IP rights in the US like the fair use doctrine

      • Actually there is a lot going on about a fair use approach being adopted in Australia…. however fair use is very strongly opposed by the collection societies managements they prefer compulsory collective licensing solutions that generate lots of compulsory management fees.

  28. Your original claim,in your own words was ‘No one has produced even one, though there are thousands of referendums around the world to choose from.’

    That claim is unsustainable. When I mention a particular case, you are wrong to think I have exhausted the examples. The Jim Crow laws were mainly enacted by referendum. Consider the Alabama constitution of 1901. The president of the drafting convention said its purpose was white supremacy. First it set a combination of property,literacy, fiscal and poll-tax bars to create quite a limited ranches. Then it exempted from those bars anyone (1) who was on the electoral roll before the Civil War (2) who had served in the military including both sides in the Civil War (3) anyone descended from these happily exempted white folks. That is actually the derivation of ‘grandfather clause’. The constitution mandated segregated education and public facilities. For good measure interracial marriage was prohibited and any partner in such a marriage was disfranchised. Ditto anyone convicted of a crime against the order of nature.

    This instrument was adopted by referendum. In an outrageous display of disregard for the majesty of the sovereign people, the federal courts gradually overruled these provisions and one, the poll-tax was invalidated by a federal constitutional amendment. Even so some of them remained in the text of the constitution long after they had been struck down by the courts because the sovereign people,in their wisdom, refused to delete them. The ban on interracial marriages, for example, was only repealed in 2000. The requirement for segregated education remains on the books. Alabama was not one of the former confederate states where African-Americans were a majority.

    I look forward to hearing from you how white supremacy was not an oppression,or perhaps that it was an ‘(alleged) oppression’. Be assured that the Internet is a big place and there are many, many more cases of referendums where the majority oppresses the minority.

  29. So we’ve got the minarets referendum and the gay marriage referendum and now the Jim Crow laws of late 19th and early 20th centuries.

    “I look forward to hearing from you how white supremacy was not an oppression,or perhaps that it was an ‘(alleged) oppression’.”

    What a bright fellow you are!

    One can imagine that after having fought a war to keep their slaves, southern whites would be upset to see their former property not only snatched from them and declared human but given citizen’s rights. You wouldn’t expect them to vote to endorse this at referendum. In short, you are getting, again, desperate to find fault. Did the blacks get to vote? Was there are free press where all points of view could be expressed? The answers are no. That is not the people ruling.

    The link you gave did not work but it is evidently to the Wikipedia page on the Jim Crow laws. The various legislatures, exclusively white, were inventive and effective in their discriminations. They disenfranchised virtually all blacks as well as inflicting other discriminations. But there is a snag: it was done by representative governments; in this quite lengthy article there is no mention of any referendum. That, I think, was my point: representative governments are oppressive.

    A referendum directs the government to do something or other. Why would they hold referendums in the South? The only time an unjust government would hold a referendum it will be a fake in order to fudge something; it seems in this case they didn’t bother. The government and the white voters were in accord. All referendums would have done would be to draw attention to injustice.

    You claim that Alabama approved its constitution by referendum. It seems to me that voting on a whole constitution at once would be a good way to snow people. That’s not the people ruling.

    As a youth, I copied out a passage from Malamud’s novel, “The Fixer.” The character Bibikov says: “There is something cursed, it seems to me, about a country where men have owned men as property. The stink of that corruption never escapes the soul, and it is the stink of future evil.”

    Future evil. You like judge rule. Well, how did the judges of southern US perform? How does Scottsville compare with your minarets? Not just the southern ones. That Wikipedia page tells of the Supreme court actually endorsing the racial discrimination in 1896. That held for 58 years until it reversed the decision. How does that compare with your four years of not being allowed to marry? If there had been a national referendum in 1896, it would never have happened. In the US, how are the courts performing even now in terms of racial discrimination?

    The sum total of oppressive referendums remains at two: the minarets Verbot and the gay marriage prohibition.

  30. You really need to try substituting argument for imagination. Why us the number of oppressive referendums on gaus restricted onyl to California? They have been passed in many states. Make it a round dozen plus the minaret ban. 13 is a bigger number than zero which was your original claim.

    Each time you post you add a new qualification to your original sweeping statement. Now where a section of the people are disfranchised you do not count that as an oppressive referendum. That neatly excludes all referendums held in Switzerland before 1971 from your original claim of thousands of referendums.

    Your invented history of Reconstruction in the US South also fails. The southern states registered most African-Americans under federal administration. The south elected African-American governors, senators, state legislators, all of them Republicans. It was only after the Tilden-Hayes compromise, when the federal government abandoned Reconstruction as the price of southern acquiescence in the Republican effort to steal a presidential election, that the ex-confederate states were able to start excluding African-Amercians from the franchise. Your claim works for states like Georgia were African-Americans were actually a majority and the white establishment simply seized power by armed force. It does not work for states like Alabama, where whites were a majority who cheerfully oppressed the minority by the use of referendums. Now does your argument work for the Alabama referendums since the Civil Rights mvoement when the disfranchisement was over but the majority continued cheerfulyl oppressing the majority by referendum.

    The thing is your claom of not one opressive referendum sid ead as a doornail.

    We can go on to various US referendums directed against immigrants in general, Mexicans and Chinese in particular, the Three Strikes Law, the capital punishment referendums, and a whole lot of other stuff. But really it would just be better if you admitted your original claim was factually wrong.

    Your claims about my position are as inaccurate as your imagined histories. I don’t like ‘judge rule’ whatever that is. I don’t dislike direct democracy. I merely think you need to be very careful that the majority does not get an untrammeled right to oppress the minority. Even Switzerland, the referendomagist paradise, recognises that by requiring special majorities for some referendums.

  31. You claimed that Jim Crow laws were supported by referendums. You gave a reference and, with a courtesy your rudeness did not warrant, I checked it. Referendum is not mentioned. It is quite a lengthy run-down on post civil war southern discrimination but apparently it was all by legislatures. The word referendum simply does not occur.

    If, notwithstanding the lack of evidence, they did hold referendums I should not be surprised if the outcome was as you say. Shonky governments hold shonky referendums. I think there have been a few of them though I don’t know whether there were any in the American South.

    “I don’t like ‘judge rule’ whatever that is. I don’t dislike direct democracy.”

    You don’t know what it is but you don’t like it. Judge rule is when the courts rule. Are you saying you don’t want that? I was under the impression you did. Who do you think should rule then? You don’t dislike direct democracy? It is my strong impression that that is exactly your position.

    You say that the majority should not have “an untrammelled right to oppress a minority.” Fine. So you think a minority should have that right. Which minority? I thought you wanted judge rule but now you say you don’t want that. It is quite clear you don’t want the people to rule. If not the courts and not the people that seems to leave only legislatures. That Wikipedia reference gives an idea of the oppression legislatures are capable of and they make your minarets and gay marriage look so trivial it seems insulting to mention them in the same sentence. Who should rule?

  32. Leaving aside all the blather, wouldn’t it be better just to admit that your claim that not one oppressive referendum has ever happened is factually wrong? The Alabama constitution of 1901 was enacted by referendum. I did not rely on the Jim Crow article to prove this fact.

  33. Does Direct Democracy Hurt Immigrant Minorities? Evidence from Naturalization Decisions in Switzerland

    Using panel data from 1,400 municipalities for the 1990-2010 period, we exploit recent Federal court rulings that led most municipalities to transfer the naturalization decision to an elected municipality council. We show that naturalization rates surged by 50% once legislatures, rather than citizens in popular referenda, decided on local naturalization applications. While citizens face no constraints against voting their prejudice, rejections are more costly for accountable legislators who are forced to justify potentially arbitrary rejections. Consistent with this mechanism, we find that the increase in naturalization rates caused by switching from direct to representative democracy was much stronger in areas where voters held stronger anti-immigrant preferences and among more marginalized immigrant groups from Yugoslavia and Turkey.

    A quantifiable and massive example of referendums that oppress minorities.

  34. Re Swiss municipal voting. At the beginning of this conversation I did mention that municipal referendums might be discriminatory. I have heard that if you have a Yugoslav name you haven’t a chance of getting the locals to vote for you. Clearly wrong.

    With regard to your claims regarding non-municipal referendums, you referenced a Wikipedia article which I chased up but which didn’t mention referendums. Now you have directed me to a recent legal history paper. Quite interesting but it’s 140 pages all up. This is standard practice among psychology academics: make a specific claim and state a reference which, when you chase it up, turns out to be a 300 page tome. In other social sciences it is normal to give a page number. In this case the document is a pdf image and is not searchable.

    You claim that it supports your case. Does it? I have read slabs of it but all I can see is Democrat politicians vying with each other to disenfranchise blacks. Their convention discussion is entirely about the tricks they will use to do it without mentioning race. There was apparently no discussion whatever by these people’s representatives of the counterargument, ie of not doing it. Their sole concern—they were quite candid—is how to do it without the northerners and the Supreme Court catching them out. And they must have got it right for neither Congress nor Supreme Court did anything for many decades. Pretty much what you can expect from politicians and courts. Whether the people directly participated in this political chicanery, I still don’t know.

    Why don’t you respond to my query about who should rule? You don’t want the majority to rule so which minority do you want to rule?

  35. You wrote:

    Geoffrey deQ Walker reckons that it happens at municipal level in the US and you can imagine some pretty grubby parochial intrigues. I should think such blemishes would be nothing compared with the chicanery that municipal elected officials get up to.

    Your words are limited to the US and do not address the Swiss example. Moreover The authors of the paper on Swiss discriminatory referendums are making a point about voter behaviour in all referendums, not just municipal referendums. The frequency of oppressive referendums is borne out in the US as well.

    Your position is that there has never been an oppressive referendum. To quote you:
    ‘Not one!’

    In fact there are many examples:

    The reality, as I’ve alluded to, as others have spoken to this afternoon, is that often the initiative process targets minorities of all sorts. There’s no doubt that those who will suffer from the initiative passed yesterday here in Michigan are racial minorities. That was the effect of Proposition 209 in California. If you look at other initiatives passed, such as Proposition 187 in California, it’s a no-benefits of any sort to go to undocumented immigrants; again you see a specific minority being targeted. The English-only initiatives again are targeting a minority language. The initiatives that have swept the country, now adopted in what is the majority of states, prohibiting same-sex marriage, are again trying to limit rights of the minority: gays and lesbians.

    Lest you doubt what I am saying about this, ask yourself the following question: when was the last time that the voters passed an initiative to increase the rights of prisoners, or increase the rights of criminal defendants? It’s hard to think of illustrations of that. The political process cannot be realistically used to protect the rights of minorities, at least not very often.

    The Alabama constitution of 1901 was ratified by referendum, To avoid furtehr claims of link-shovelling I guess I need to quote the relevant text:

    Whereas, It appears from the certificate of the Secretary of State and Attorney-General that on the 11th day of November, 1901, at an election held in the several counties in this State, for and against Constitution, that the whole number of votes cast “For Constitution” is one hundred and eight thousand, six hundred and thirteen (108,613), and the whole number of votes cast “Against Constitution” is eighty-one thousand, seven hundred and thirty-four (81,734).

    Now, therefore, I, William D. Jelks, by virtue of the power and authority in me vested as Governor of Alabama, do declare the majority of votes cast “For Constitution” to be twenty-six thousand eight hundred and seventy-nine (26,879).

    I, Therefore, proclaim that the said new Constitution so ratified shall go into effect as the Constitution of the State of Alabama on Thursday, it being the twenty-eighth day of November, 1901, and shall thereafter be binding and obligatory as such upon the people of this State.

    In Witness Whereof, I have hereunto set my hand and caused the Great Seal of State to be affixed at the Capitol, in the City of Montgomery, this the 21st day of November, A.D. 1901.WM. D. JELKS,Governor. By the Governor:Robt. P. McDavid,Secretary of State.(Proclamation Record, p. 129.

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