Can claims of a "mandate" be legally enforced?
By Patrick Vuleta on September 27, 2013 at 1:36 pm
Here’s the plan. After decimating Indonesia’s fishing industry with our bottomless slush fund, we haul their boats back to Australia. This done, we tow the boats to every suburban street corner, load them with telecom gear, and fibre them to the NBN. Finally, the last metres of frayed, rain-soaked copper goes to every home, garage, and boatshed in the nation. It’s fibre to the boat, the sort of primary industry-focused policy we could have had with the foresight to vote in Bob Katter’s Australia Party.*
Could have, would have, should have. Like many gamers, I’m bitterly disappointed with our new government’s proposed broadband policy. That’s not to say I voted on this issue: Labor’s brand of leadership musical chairs makes me ill. But still, fibre to the node sucks—a technological dead end of sunken costs.
All is not lost, however. Fibre to the node is still just a glimmer in the eye of Malcolm Turnbull—Mr Broadband (as is how our PM describes him). As we’ve seen before, politicians are capable of some impressive backflips. Could this happen here?
Mandates don’t exist
Just after the election, Mr Broadband reacted to an online petition which urged him to reconsider his endorsement for FTTN.
“Last Saturday there was a general election at which the NBN was one of the most prominent issues. The Coalition’s NBN Policy had been published in April, five months ahead of the election. The Coalition won the election.”
“The promoters of this petition apparently believe that we should ignore the lengthy public debate on the NBN that preceded the election and also ignore the election result. We should within days of the election walk away from one of our most well debated, well understood and prominent policies. Democracy? I don’t think so.”
This quote, apparently, draws on the idea of an electoral mandate—that if you have a policy going into an election, and win, then you are clear to implement said policy. Tony Abbot’s post-election rhetoric has further expanded this idea, directly calling it a “mandate”, urging the Senate to stand aside and not block new laws.
However, mandates don’t exist. Our Constitution establishes a representative democracy. Legislation is determined by majority vote in Parliament and the Upper House. Essentially, if you have a majority government in both houses, then you have the numbers to pass legislation.
That’s it. Nothing prevents politicians from backflipping. There is nothing to stop minor parties blocking policies of major parties in the senate. After an election, politicians are free to do as they please. The only real checks are the internal discipline of the party, and the possibility of being re-elected at the next election.
Indeed, mandates cannot exist, for minor parties may have been voted for in an effort to force negotiation on policy. To expect political negotiation to simply stand aside in the interests of filling a mandate is to disregard those who voted for minor parties. That’s why we don’t have any mention of mandates in our Constitution.
Legally, therefore, Mr Broadband could abandon FTTN and embrace FTTP at the drop of a hat. Not that this would ever happen, of course—it would be political suicide within the Coalition. But let’s not mistake towing the party line for democracy, for mandates don’t exist. They are simply political rhetoric.
Could we have a “mandate” to reverse FTTN?
The wildcard in the process is the outcome of the three reviews Mr Broadband is proposing for the NBN. As he has stated time and time again, his biggest problem with the Labor NBN was the lack of transparency. Opening the prospect for FTTP to be considered, he has written:
“The strategic review will consider all those matters – openly and honestly. No spin. No politics. Just hard facts. And that will make the debate much better informed.”
While it’s likely that Mr Broadband is talking more about his desire to see the supposed-benefits of FTTN supported in the media, for these reviews to be truly valid they would need to canvass the benefits of FTTP. These benefits, such as ubiquity of access, ease of maintenance, and future-proofing, have often been overlooked in the election campaign’s political spin.
It would be very interesting indeed if the government’s “mandate” to use the most cost-effective solution ended up being shepherded into some variant of FTTP on the basis of reducing long-term costs. Already we are seeing halfway solutions by private carriers such as FTTB supported by the market that were not in the original FTTN plan (and that’s basement, not boat). That these are cropping up so soon calls into question whether the policy was really all-encompassing, and will pose hard questions for NBN’s profitability and equity between Australians if all the best customers go to private networks before it even gets off the ground.
Unfortunately, there is very little to stop the cherry picking of experts and auditors sympathetic to the FTTN policy. No regulations prescribe independence of the reviewers—it’s not exactly Royal Commission material. This is a big problem, for example, in court cases where each side gets to choose their own expert to give evidence. The only safeguard is to ensure both sides of the debate have their own experts, but with the panel being assigned by the government themselves, it is unlikely that the reviews will be truly independent.
If the reviews identify that FTTN will end up costing Australia years down the line as a sunk cost, then hopefully our government will admit it. However, with few safeguards in place to ensure the independence of the reviews, the chances of this happening are slim at best.
* This is satire. I have no idea what Bob Katter’s broadband policy actually is, other than it probably involves big hats and top sheilas.