Signing off his 26-year parliamentary career three years ago, the retiring Labor MP Joel Fitzgibbon lamented a power imbalance that allowed the majority party routinely to railroad the national legislature.

In a refreshingly frank valedictory speech, the former minister claimed the House of Representatives had become nothing more than a rubber stamp for executive government.

And he criticised the practice of compelling MPs to vote in blocs, irrespective of their own judgement:

not only do governments typically hold the numbers; they are using them more ruthlessly within their party structures […] party discipline is strangling our democracy in an era when the world is changing so dramatically.

Voters apparently share his unease. The combined primary vote share of the Labor-Coalition duopoly has been declining since the 1980s from around 90%, to around 68%. The remainder is going to minor parties and independents.

Now, successive opinion polls suggest both major parties are likely to fall short of the 76 seats required for a simple majority. And Fitzgibbon has fretted in The Australian that the primary threat to national politics and governance may come from voters themselves. That is, if they should have the temerity to install crossbench MPs beyond the discipline of the two major parties.

Labor and Coalition supporters alike are now shaking in their boots, as are the parties of government. Of course, the minor parties have the champagne on ice, relishing the chance to hold the country to ransom. The Greens are salivating.

Holding the country to ransom? Salivating? It’s as if the voters have no deliberative intent.

What’s changed for Fitzgibbon? Perhaps this is nothing more than the familiar slouch into conservative chauvinism to which so many ex-parliamentary Labor men succumb.

The rightward drift of progressively-striped former legislators is a well-worn path, with names like Graham Richardson, Stephen Loosely, Gary Johns and John Black springing to mind.

Teal threat

Less openly canvassed are the unconscious gender biases, and the major party self-interests that are driving them.

One answer to “what’s changed?” is the electoral embrace of the Teals – seven conspicuously competent professional women defiantly occupying once blue-ribbon Liberal seats. These new MPs (six of whom came in at the last election) were successful because voters wanted to break free of the suited duopoly and the limited solutions it proffers.

While hardly radical, they have been outspoken on climate change policy, corruption in public administration, and the absence of serious structural taxation reform. To old-guard politicos for whom traditional binaries dominate, their needling from the crossbenches may seem almost insolent.

Their presence, which involved circumnavigation of the established party “meritocracies”, is viewed by many in the major parties as an existential threat to the two-party system. Yet it is the widely perceived mediocrity of the two-party dominance that is their very attraction to voters.

Denying people power

Fitzgibbon is hardly the first to hyperventilate about the perils of a hung parliament where crossbench MPs may have a role in assuring confidence and supply numbers to one side or the other. But his solution to this alleged problem is novel to the point of bizarre.

Despite calling Australia’s system “hyper-partisan”, he proposes that Anthony Albanese and Peter Dutton might collude ahead of the election in order to agree

that whoever has the most seats post-election will be guaranteed supply and confidence for 18 months hence.

Leaving aside that the independent MPs are in fact, independent, Fitzgibbon’s fix flies in the face of the very chamber whose dwindling primacy he formerly eulogised. That is, he proposes an arrangement between two opposing blocs that would pre-emptively close out non-major party MPs, despite their authority deriving from the people.

This is not to say the question of any crossbench intentions in a hung parliament situation are beyond the limits of public conjecture. But a preventative neutering of their participation in the construction of a parliamentary majority (should it come to that) is a drastic and potentially counter-representative act.

Hung parliaments can work

Unlike many democracies, Australia has limited experience of minority governments at the national level.

The only recent example was the aforementioned Gillard-Rudd term (2010–2013). Notwithstanding leadership turbulence, a record number of bills were passed, despite the sense of numerical precarity and the need for clause-by-clause negotiation with cross bench MPs.

Legislating 561 bills – much higher than the previous Labor term – it also encountered higher resistance from the Coalition opposition, with 22% of bills opposed outright. Important legislative reforms included

• the carbon price
• Gonski school education reforms
• world-leading plain-packaging laws for cigarettes
• the creation of the Parliamentary Budget Office to provide independent costings for all MPs
• NDIS legislation and funding arrangements.

And many more.

That parliament’s reputation proved the old adage that history is written by the winners. By repealing the carbon price and hobbling other priorities, the subsequent Abbott government and its media enablers were able to depict the 44th parliament as extreme and dysfunctional.

It was neither.

Two-party cartel

In the current parliament, Teals like Allegra Spender have shown more interest in bold tax reform, while others like Zali Steggall have pushed harder on climate change and truth in political advertising.

It cannot be known which of the current crop of crossbench MPs will be re-elected or whether there will be more. But the trend in successive elections suggests Australians are tiring of the old parties and are looking for other options.

Suggesting clever tricks to freeze out these voters smacks of desperation and worse, cartelism. It is likely to hasten the demise of blocs which only recently combined to write new election campaign finance laws that give them the edge.

Voters are awake to this.

Mark Kenny, Professor, Australian Studies Institute, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The publication by the Newcastle Herald of a political advertisement by Clive Palmer’s Trumpet of Patriots party stating “there are only two genders – male and female” has provoked a backlash that has seen the advertisement removed from the paper’s online edition.

The publisher, Australian Community Media, has apologised for printing it in the first place. The ad also ran on the front page of The Age on March 12.

This raises a question about freedom of speech, particularly political speech.

There are three reasons why this advertisement does not deserve the protection of the free-speech principle.

The first is that it is factually wrong. The second is that it attacks people for an attribute of birth, and the third is that it is unjustifiably harmful, being calculated to arouse prejudice for political gain.

It is factually wrong because there are people in the community who are trans or gender-diverse. The Royal Children’s Hospital in Melbourne has a Gender Service clinic to assist children and adolescents in this situation. It states on its website that being trans or gender-diverse is seen as part of the natural spectrum of human diversity.

The clinic’s website also draws attention to the risk of harm to these often vulnerable young people. It states that they experience considerably higher rates of depression, anxiety, self-harm and attempted suicide compared with their cisgender peers because of their experiences of stigma, discrimination, social exclusion, bullying and harassment.

More generally, the British philosopher A. C. Grayling has developed a scheme for assessing harm arising from prejudice against people on the grounds of certain attributes.

In his scheme, he identifies what he calls attributes of birth: race, nationality, skin colour, gender, sexual orientation and disability among them. This provides valuable guidance about the attributes that deserve the most robust protection.

It is not necessary for the editor of a newspaper to be familiar with any of this in order to see that an advertisement of the kind published in the Newcastle Herald was totally indefensible. All that had to be done was to substitute race or skin colour for gender and ask: would we publish such an advertisement?

On top of that, since 1984 Australia has had a Sex Discrimination Act, the latest iteration of which makes it an offence to discriminate against a person on the grounds of gender identity or intersex status, making it clear that these are protected attributes under the law.

Australian Community Media said it has checks in place for political advertising, “but on this occasion the process failed and the advertisement was not reviewed before publication”.

The obvious question is, why not? Even at face value the advertisement is factually wrong as a matter of general knowledge, which would be as good a starting point as any for making a decision about whether to publish it.

The ad goes on to say: “We must stop confusing children in schools. Give them a safe and normal environment to grow and develop in and let them decide who they are when they become adults.”

This is the purest humbug. It pretends to stand for the protection of all children from “confusion”, while exposing some children to the risk of serious harm.

Nor can the ad be defended as a statement of opinion. It is unambiguously purporting to be a statement of fact.

At The Age, journalists reportedly wrote a formal letter of complaint to management after discovering the same ad was booked for the front page of that paper on Wednesday March 12.

However, The Age and News Corp newspapers have published other Palmer ads that have aroused indignation. On March 7, the front page of the Age carried an ad that read: “We don’t need to be welcomed to our own country.” On March 11 the front page ad said: “Too much immigration destroys infrastructure.”

Race is clearly an undertone in both of these, but they are directed at practices and policies, not at people’s personal attributes. In this way, they are categorically different from the ad about gender.

In no civilised country is the right of free speech absolute, although political speech enjoys a high degree of protection.

The point at which, by convention as well as law, democracies draw the line at free speech is the point where the speech does harm to others.

These limitations are derived from the harm principle developed by that champion of free speech, John Stuart Mill, in On Liberty. It remains a relevant standard even in the coarsened political atmosphere in which we live.

The fact that certain views may arouse indignation or even anger in others is not on its own a ground for suppressing them. Where unjustifiable harm is done, however, the law and ethics step in.

Correction: The article originally stated that the ad about there being “only two genders” was scheduled to run in The Age but cancelled. In fact it ran on the front page on March 12.

Denis Muller, Senior Research Fellow, Centre for Advancing Journalism, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.