What role should public opinion play in the ultimate political resolution of such public policy debates as climate change, asylum-seekers, the war in Afghanistan or gay marriage? And how is this related to democratic principles and good governance?
According to the populist view, our elected representatives are merely delegates of their constituents and should give effect to their wishes. Their only difficulty is interpreting the will of those they feel bound to follow, through knowledge of the electorate and targeted opinion polls.
The better constitutional view, however, regards a member as a trustee, duty bound to exercise his or her own personal judgment and decide each issue on its merits on behalf of their constituents and the nation as a whole. A member’s duty is to form his or her own opinion, not reflect the opinions of others. The difficulty is one of exercising personal judgment to reconcile competing interests. Here, knowledge of the issues and evaluation of the arguments and the relevant evidence are the essential requirements.
That there is some confusion about which view to adopt becomes apparent if you look at the way Tony Windsor has approached two different issues since his re-election.
It is clear that in deciding which party he would support to form minority government, he took the view that it was his individual judgment that he was required to exercise, not the majority views of his electorate or public opinion at large. This is in accordance with the duty of an elected representative as classically formulated by Edmund Burke in 1780.
However, if you look at the way he approached the issue of our continuing involvement in the war in Afghanistan, he seemed more willing to consider representations from his electorate. Whether he would defer to a clear majority opinion if it were against his better judgment is unclear.
By contrast, it is clear that both Julia Gillard and Tony Abbott would resolutely refuse to pay regard to majority public opinion calling for the withdrawal of our troops from Afghanistan. The public apparently cannot be trusted with such decisions.
In relation to the asylum-seeker issue, both major parties are captive to a hostile public opinion, the Opposition seeking to exploit it, the Government reacting to it.
On climate change, Tony Abbott insists that the public should be allowed to decide whether climate change is real and how we should respond to it. Julia Gillard argues that it is more important to follow the overwhelming scientific and economic opinion on this issue than ill-informed public opinion. For her, it is the duty of Government to decide, even if the decision is unpopular.
The Green’s are as inconsistent as the two major parties. They believe we should respond to public opinion by withdrawing our troops from Afghanistan, ignore public opinion on the asylum-seeker issue, seek to persuade (but, if necessary, ignore) public opinion on climate change and respond to changing public opinion on the issue of gay marriage.
The Green’s motion passed in Parliament urging members to consult their electorates on gay marriage is in line with the notion that parliamentarians should represent the views of those who elected them. The implication is that all parliamentarians need to do is canvass and then follow the most recent majority consensus on the issue, because that is how democracy works.
But is this really how we want our democracy to work? Surely we want our parliamentary decision-making to be able to stand up to critical scrutiny, to be rational, to be moral, to be supported by evidence and to be in accordance with some principles that can be defended.
And if our elected representatives considered the majority public opinion to be intellectually or morally indefensible, should we expect them to vote contrary to their own better judgment and conscience?
What if the majority opinion is found, on closer examination, to be irrational, or logically flawed, or morally inconsistent when judged by the values we otherwise profess to live by, or based on inadequate evidence, on prejudice, on no more than knee-jerk reaction, an emotional response or an unthinking deference to the views of others?
Surely we would want our elected representatives to do better than merely parrot a fickle and all-too-easily manipulated and volatile public opinion.
When there is public controversy about a proposed course of action, it is the job of our representatives to discern what principles are relevant and decide each case on its merits, without fear or favour. This is a personal responsibility of office that cannot be delegated to either their party, their electorate or the public at large.
People who argue the contrary misconceive the nature of our representative democracy. The public’s democratic right extends only to electing members to represent them in Parliament, not to having a direct say in the laws they pass there. We give them the right and responsibility to vote in Parliament and determine what policies will be implemented. Their decisions should be based on a careful consideration of the policy options, the relevant criteria and the evidence. Public opinion is usually irrelevant to that process.
This is clearly the view of Rob Oakeshott. On ABC Breakfast on July 25, he made a passionate defence of the principle of representative democracy. In response to Alison Carabine’s populist questioning, he patiently explained that his electorate had chosen him to represent their and the nation’s best interests, that (unlike them) he had the benefit of access to all the expert evidence and the submissions of all interested parties, and it was his job to evaluate that on its merits and use his own best judgment in deciding how to vote for the good of the country, irrespective of ‘the wishes of his electorate’. They were entitled to pass judgment on him at the next election.
As Burke famously stated in 1780:
Their wishes ought to have great weight with him;
their opinion, high respect;
It is his duty …in all cases, to prefer their interest to his own.
But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living…
Your representative owes you… his judgment;
and he betrays, instead of serving, you if he sacrifices it to your opinion.
When the issue is one of grave moral concern, like war, it is their duty to pay full regard to legal and moral principles adopted in our community and under international law. Both clearly prohibit the killing of people in all but the most exceptional circumstances. These are restricted to proportional self-defence from imminent attack and the keeping of the peace in ways specifically authorised by a recognised legal authority.
Likewise, in relation to our treatment of asylum-seekers, their duty is to devise policies which recognise our moral and legal commitments, ensure people’s safety, treat them fairly, with dignity and respect, while maintaining border control, discouraging dangerous boat travel and providing proper processes for applying for refugee status.
On the issue of gay marriage, their duty is to determine whether the principles of non-discrimination and equality before the law require removing this final barrier based on long-held views about the meaning of marriage.
With regard to the highly complex issue of climate change, their duty is to determine who is best qualified to provide expert evidence of its impact and of any proposed remedies, to examine that evidence carefully and decide what’s best for our country, the planet and future generations.
Only through such processes can our politicians arrive at wise decisions that do justice to the seriousness and complexity of the issues involved.
Deciding such issues on the basis of public opinion or political expediency is morally indefensible and a clear abdication of their responsibility.
It is also far too simplistic because it confers on public opinion an intellectual and moral authority that cannot be justified. While politicians must respect the right of people to hold their own opinions, they are not bound to respect the opinions themselves. Opinions about complex public policy or moral issues are not necessarily intelligent or moral. And a majority consensus of public opinion on any issue does not advance the argument.
This does not mean that these opinions are of no importance. Clearly they matter in terms of the quality of public discourse, political debate and how politicians respond to community concerns. For the public will quite rightly have their say at the next election. But an appeal to populism as a basis for sound decision-making cannot be defended under our Westminster system.
In these important public policy debates, we should remind our elected representatives of the job we are paying them to do: to make reasoned and principled decisions on our behalf, in the best interests of the nation. We should require them to focus on this serious undertaking and to exercise their own best judgment and conscience, without fear or favour, rather than second guess our wishes.
Scott MacInnes has a background in teaching, law and conflict resolution. He is now retired and lives in Tasmania.