July 14, 2016

Horse 2135 - Shame, Shame; Shame! - Derryn Hinch And The Consent Of The Governed

In Monday night's episode of Q and A on ABC1, long time broadcaster and newly elected Senator Derryn Hinch made the comment that this was the first election in which he voted. He had previously said that he wouldn't vote for anyone unless it was himself. He also went on to say that he thought that it was bad that we have compulsory voting in Australia.

The fact that I said that I finally found a person worth voting for was a joke and I did vote for the first time but I'm against - totally opposed to compulsory voting, always have been, for two reasons.
I think in a democracy you have a precious right to vote. You also have the right not to vote. We only have it in Australia and in Belgium. It's not compulsory in New Zealand or Canada or the United States or even the UK, where we follow the Westminster system of Government.
I have a second reason why I don't vote, and I’ve gone to court and I’ve argued it. I said I should be exempt as a commentator because commentators should either not vote or tell their listeners and their viewers for whom they vote. 
- Derryn Hinch, Q and A, ABC1, 11th July 2016¹

Let me start by working backwards through this. Mr Hinch's comment that "commentators should either not vote or tell their listeners and their viewers for whom they vote" is idiotic because by definition this would either deny someone their right to free speech on the basis of their occupation or deny the political parties themselves their right to free speech. All advertising, including political advertising is essentially commentary with the intent of persuasion. I reject the argument that commentators shouldn't vote or tell their listeners how to vote, outright and in its entirety.

Just because voting is not compulsory in New Zealand or Canada or the United States or the UK, does not make that good. In the constituency of Belfast South in the 2015 General Election, there was a turnout of 60% and this was compounded by having the most votes wins system - which in effect meant that Alasdair McDonnell of the Social Democratic and Labour Party who only got 24.5% of the vote, was elected by a paltry 15.6% of the electorate and if that's the basis of sensible democracy, then colour me nonplussed.
It we set aside for a moment that he has openly admitted to being a lawbreaker in not voting (because voting is compulsory as a result of the Electoral Act 1918 and therefore is not a right but a duty²), what we have is Hinch's basic assertion that compulsory voting is not fit for purpose. His argument is that it is ungood.

One of the mistakes that I often see in the political discourse in this country is the belief that Australia is somehow worse off for not having a bill of rights inside the constitution. Australia by virtue of being an ex-British colony, inherited both the existing law set and the prevailing attitude which accompanies that law set. Quite apart from the fact that we do in fact have what amounts to two bills of rights³, the assumption at law in Australia is that we have unlimited rights until they are hemmed in by law. Consequently some of the rights that we do have are some which lawmakers would have never have thought of, such as the right to quiet enjoyment of our surroundings, the right to privacy and the right to be left alone.

Compulsory voting is one of those things which is interesting. In other countries, the franchise is framed as a right. Indeed the story of the franchise is one of struggle and hardship, which has had to be fought on grounds of both gender and race. In Australia though, which as a nation was started through a vote and not a war, voting is not a right but a civic duty; along with things like jury duty and conscription (in those times of extreme importance).

I think that the goodness of compulsory voting is highlighted by one rather famous document:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
- Declaration of Independence, 4th July 1776.

Now I have to stress that the Declaration Of Independence of the United States is not and does not form part of the law. It also predates the American Constitution and the Bill Of Rights therein by thirteen years.
Nevertheless, that phrase "the consent of the governed" is one of those phrases which is waved around by orators, politicians and philosophers alike; because it is a useful thing to think about.
Consent as it is normally taken as understood at law, implies either an act or agreement which has been entered into voluntarily and confers permission to do something. What Jefferson was in effect saying is that government can only claim legitimacy if it has permission from the people to govern. Of course you can quite easily argue that the act of voting, especially when that act is compulsory at law, can never be seen as the people giving their consent but I think that this is bound up in a much more complex web of ideas.

The truth is that following the law is not something which people enter into voluntarily; nor should it be. If the act of following the law is only a voluntary act, then quite demonstrably people and entities would only do so when it happened to suit them. There are loads of examples where voluntary self regulation is a total disaster (think of labour laws, environmental laws etc). It is equally true that in those nations which do not have compulsory voting, the turnout to vote is far far lower than in Australia.
I think that since following the law is not optional, then the decision about who makes up the institution which writes and enacts law, should also not be made on an optional basis.

The question then is, if following the law is not optional and should not be optional, and voting is also not optional, then how can voting be said to be the people giving their consent if the act as consent itself is one which is entered into on a voluntary basis?
I think that by default, there will always be someone who governs. Even in a society which has no codified law whatsoever, there will always be someone who decides what will be done and how it will be done. If voting is the formal act of deciding who will govern and the decision of who is made voluntarily, then at that point consent is conferred. If the legitimacy of government is only derived once the people have given permission to a particular set of individuals to do the governing, then I think it follows that that legitimacy only occurs when all of the people have entered into that decision making process.

For people to opt out of voting, even if voting is framed as a right, is a deliberate act of negligence. That we have compulsory voting in Australia is something of a delightful historical accident and a treasure which I think should be defended. If compulsory voting were to be removed, then this should be seen as an act of vandalism and the people suggesting such a thing should also be seen as thieves who want to steal away government from the people.

³These being the Bill Of Rights Act 1689 and the Universal Declaration Of Human Rights 1948 - http://rollo75.blogspot.com.au/2008/05/horse-882-bills-of-rights.html

1 comment:

jimhax said...

How can you claim that voting implies the consent of the governed when most of the people don't consent to the fuckwits who get in? Shillary and Drumpf are both terrible. This is the tyranny of the majority and the only safeguard we have against tyranny is free speech and the right to bear arms.