A mandate for having a mandate ...

The notion of a ‘mandate’ has played an important role in recent debates about the role of the Senate in Australia. However, the discussion of this topic has been, to put it mildly, confused. One important source of difficulty arises from the fact that the term ‘mandate’ can be derived from two, very different, sources.

The first, deriving from English debates about the role of the House of Lords, arises when a popularly elected government faces resistance from an unelected, or unrepresentative, Upper House. In the English constitutional arrangements of the 19th century, there was no way of resolving such a deadlock. Even if the Parliament was dissolved, and the government re-elected with a clear majority of the votes, the House of Lords retained its veto power, and used it to defeat bills for Irish Home rule and social-democratic reforms.

The only solution was the use of the Royal Power to create large numbers of new lords who would pass the necessary legislation. This solution was justified by the notion of the ‘mandate’, that is, the idea that the House of Lords was acting in defiance of the clearly expressed will of the people.

The second notion of mandate arose in a very different context, that of Imperial China. As in other autocracies, Chinese political theorists faced a conflict between a theoretical structure that demanded absolute obedience to the Emperor and the empirical fact that emperors were regularly overthrown. The solution was found in the notion of the ‘Mandate of Heaven’. The idea was that the requirement of obedience was conditional on the Emperor's possession of the mandate of heaven. Once this was lost, rebellion was justified.

In practice, the success or failure of rebellions determined whether the Mandate of Heaven had or had not been lost. The same reasoning is reflected in the English aphorism ‘Treason never prospers: what's the reason. If it prosper, none dare call it treason’.

In most recent Australian debates, it is the Chinese version of mandate theory that has been at issue. No government in the last two decades has received a majority of the popular vote, rendering the popular mandate theory moot at best. In many cases, such as the proposed privatisation of Telstra, parties opposed to the policy have received a majority of votes, so that popular mandate theory justifies Senate resistance.

The basic claim of Chinese-Australian mandate theory is that, having secured executive power in the form of a majority in the House of Representatives, a government is entitled to unconditional obedience from the Parliament and the courts. This theory has been advanced with equal assurance whether or not the government in question received a majority of the ‘two-party preferred vote’, further emphasising the irrelevance of popular mandate theories.

The obvious problem with Chinese mandate theory is that it has no answer to successful defiance. If some provincial warlord or democratic republic ignores the Emperor and repels his armies, the Mandate of Heaven ceases to apply. Similarly, if the Senate rejects government legislation year after year, and is re-elected in much the same form, what does it matter whether there is a mandate or not. Since the theory has no ethical foundations, it is little more than a decorative adornment. If the government fails to get its legislation passed, mandate theory is useless, and if the government succeeds, it is superfluous.