Early Elections and Government Legitimacy

#Marchinmay down Elizabeth Street in Melbourne

The recent budget handed down by the Abbott Government has been poorly received by the Australian people and has resulted in an outpouring of community anger with up to fifteen thousand people marching in Melbourne. Similar protests were held throughout the country.

The breaking of several election promises was secondary to the anger over a raft of changes which undermine the universality of Medicare, restrict access to university education, impose draconian conditions on the young unemployed and cut $80 billion from health and education services.

During the rally, several speakers called for a double dissolution election. The Greens deputy leader, Adam Bandt, suggested that an alliance of the Greens, Australian Labor Party and the Palmer United Party could bring about a new government by Christmas.

Adam Bandt addresses the crowd

Bandt's call reflected an earlier sentiment by ALP leader, Bill Shorten, in his budget reply speech for  Tony Abbott to "bring it [an election] on" as Abbott had threatened to call a double dissolution election should elements of the budget be blocked in the Senate (a position he has since backed down on).

However, this sentiment has morphed into calls from twitter megaphones and sections of the Left for an immediate double dissolution or for the senate to block supply.

Double Dissolution

As has been pointed out by experts such as Anthony Green, there are a number of reasons why an immediate double dissolution election is impossible:

1. The elements of s57 of the Constitution have not been satisfied.

2. After s57 is satisfied, a double dissolution occurs on advice from the Government to the Governor General to dissolve both houses. Something which is extremely unlikely; considering the current unpopularity of the Government.

Blocking Supply

Blocking supply means blocking the government appropriations bill that appropriates money for the general running of government. Although  the appropriations bill contains some of the cuts to expenditure, new policies such as the ones which have elicited such community anger cannot be attached to this appropriations bill. It is likely that it is these new proposals are the ones that the Senate are likely to block - not the appropriations bill.

Blocking the appropriations bill will spark a constitutional crisis as the government begins to run out of money. It will not in and of itself spark an election. The only precedent in Federal politics is the 1975 constitutional crisis where the Governor General stepped in and sacked the Whitlam Government. The subsequent election was actually called by the appointed Prime Minister, Malcolm Fraser, using double dissolution triggers that had occurred in the Whitlam government's tenure. There was no constitutional reason why an election needed to be called - it was merely politically advantageous for Fraser to call an election at that time.

As can been seen, there were specific circumstances (and personalities) around the 1975 crisis. There is no reason why similar events would result in a similar outcome. A constitutional crisis is just that: a crisis which result in unprecedented and unpredictable actions  in our political system. They damage the political process and undermine our parliamentary system. It is for these reasons that they ought to be avoided (and are unlikely to be pursued by either the Labor party or the Greens).

The legitimacy of a government

The calls for new elections stem from questions surrounding the government's legitimacy. As with the Right's constant and unprecedented attacks on the Gillard government, the Left is focusing on the legitimacy of the Abbott Government, elected as it was on promises of integrity and honesty in its commitments. There are serious questions around the moral legitimacy of the Abbott government - considering it's central pitch to voters was one of trust. However, legally, the government was legitimately elected.

In the same way that the Gillard government was legitimately elected and even though the Right never accepted it, the government went to its full term. No matter how much the Left does not accept the legitimacy of the Abbott government, in the same way, it is most likely to go full term.

Protest

Protest at March In May Melbourne

Even though the Government will likely go to its full term, it does not mean that protest such as marchinmay are pointless. The use of public protest to continue to question the Abbott Government's moral legitimacy serve the same process as the campaigning by the Murdoch press on the legitimacy of the Gillard Government.

It is important to maintain the momentum that has built around the questioning of the legitimacy of the Government, however, calls for the irresponsible blocking of supply undermines the Left's message. It drags the Left to the level of the appalling action of the Right and their allies in rejecting the legitimacy of Australia's democratic system during the Gillard government.

The fact is that Abbott was legally elected and his government is likely to last until 2016. One Term Tony could become a reality if the Left stays on message about the legitimacy of a government that lied their way into office. It does not need to sink to the level of the Right with irresponsible calls to undermine Australia's democratic institutions by blocking supply.

TPM & TPP: The constitutional nexus

The US trade representative's (USTR) IP chapter for the Trans-pacific Partnership Agreement (TPP) suggests significant changes to the regulation of technological protection measures (TPMs). These changes extend the scope for causes of action and specifically limit exceptions to the circumvention of TPMs.

According to a leaked document the USTR has proposed the following exceptions:

• Reverse engineering for interoperability
• Research into flaws and vunerabilities in encryption
• Inclusion of a component to prevent access to inappropriate content by minors
• Security analysis and testing
• The removal of private data gathering components - so long as their removal does not then allow access to the work
• Law enforcement
• Access by public libraries for the sole purpose of acquisition decisions

There is a further exception allowed for when a a legal or administrative decision deems that the effect of the TPM makes the non-infringing use no longer available - but that exception can only be existent for 3 years.

So, the total exceptions are extremely narrow, even taking away some of the narrow exceptions existent in the Australian Copyright Act such as region encoding in s10(1)(c). Outside of these exceptions the TPP prescribes a "separate cause of action, independent of any infringement..." (emphasis mine). So the circumvention of a TPM becomes a cause of action per se.

This significantly changes the landscape of copyright. Making a modification to your own property, regardless of whether it infringes copyright, can now be a cause of action. Ultimately this breaks the nexus between a TPM being a copyright-related device to being a device that limits rights to chattels. This breaks the nexus between the TPM provision and the constitutional head of power that enables the Commonwealth to legislate with regard to copyright, section 51 (xviii).

In the 2005 Stevens v Sony case, at [218] Kirby, J comments:

"To the extent that attempts are made to push the provisions of Australian copyright legislation beyond the legitimate purposes traditional to copyright protection at law, the Parliament risks losing its nexus to the constitutional source of power."

This is not to say that the imposition of the TPP would necessarily be unconstitutional as the Commonwealth has other heads of power upon which it could rely, such as the external affairs power in s51(xxix). However, it is of concern that external treaties such as the TPP should be used to enable the Commonwealth to legislate for the regulation of the use of an individual's private property.

Needless to say, the invasion of copyright into the realm of the regulation of chattels represents a significant intrusion by the international treaties system into citizen's ordinary enjoyment of their private property. It significantly re-balances the rights inherent in intellectual and real property and has the potential to fundamentally change the rights that one has over their own property.