The argument over advertisements on the ABC might be largely academic.
Section 31 of the Australian Broadcasting Act provides, very simply: “”The Corporation shall not broadcast advertisements.”
There are exceptions for self-promotion, and we see enough of them, but without a change in the law there can be no advertisements, even of the staid SBS variety where they are restricted to the top and tail of programs SBS.
And a change in the law requires Senate approval. The chances of the Democrats and Greens agreeing are nil. One might think the same for Labor, unless it allows the change through on the you-voted-for-the-bastards principle. That principle was put forward by Paul Keating in the 1993 campaign when he said that Labor would not block a GST in the Senate if John Hewson won the election. On that occasion, Keating wanted people to know that people could not vote for Hewson and avoid the GST. Now, Labor may apply the principle differently. It may allow some non-critical laws through, so that it can hit the Government around the head with them down the track. A theme of the 1999 election, for example, might be that it was the nasty Coalition that put advertisements on the ABC.
If Labor blocks it, though, the Bill to allow advertisements on the ABC would have to join the orderly queue of legislation likely to be knocked back by the Senate.
The extraordinary thing about this debate is that the Minister, Senator Richard Alston, did not say immediately that the question was hypothetical because it would require a change in the law. He should know; he has shadowed in the portfolio long enough. Moreover, the issue is hardly new.
Of equal importance, has been the lack of understanding about the separation of powers. There is a misguided assumption around the place since March 2, that the Government can do what it likes. Not so. The Government has to obey the law. The Executive has to obey the law passed by the Legislature and interpreted by the courts. And the law is a monster with many, many tentacles. One tentacle demands the next chair of ATSIC be elected, for example. Other tentacles tie the Government up in other ways.
And to get these laws changed, the Government has to get them through the Senate, or failing that, through a joint sitting of both Houses triggered by a double dissolution (election for both Houses). A double dissolution can be called after the Senate knocks back a Bill (or Bills) twice.
It is likely that there will be a build up of quite a few laws knocked back twice. (Gough Whitlam had six in 1973-74.) There is no reason why the Coalition could not force through 20 or 30 Bills covering most of its agenda this way. But once again, the separation of powers could prove difficult.
Most legislation has to be amended after it has been tried in real life. If after a double dissolution, the Coalition still does not control the Senate, amendments to all its laws passed by the joint sitting will be difficult. Experience in early 1975 and after the 1987 double dissolution showed this. In 1987, the Australia Card Bill was never put to double dissolution because of a technical fault, (which in an earlier column I called the Magpie Factor because the fault’s discoverer came to his revelation after magpies awoke him at 4am.)
So the Coalition will have to draft some fairly fool-proof laws. One way is to get the legislature to delegate its power to the Executive by passing laws like: “”The Minister may make regulations on whatever s/he likes with respect to the ABC, Telstra, Industrial Relations” and so on.
But this invites high-horse rejection by the Democrats as an abuse of power. Give us the detail, they would demand. But the detail is the very thing that causes Bills to come unstuck by unforeseen circumstances.
The Coalition is in a similar position to a driver picked up for running a red light. Do you throw yourself on the mercy of the cop with a sob story about racing to a sick aunt, thereby providing the evidence that would surely convict you in court if the cop does not listen, or do you remain silent on all details, knowing you’ll get booked by the cop but probably acquitted in court?
The Coalition is going to get its knowledge of the separation of powers well-exercised. As Joh Bjelke-Petersen and Gough Whitlam found out you can’t run a government without it.