Temporarily Permanent Legislation

Parliament House, after dark. Wikimedia Commons

For the time being, NSW is a representative democracy. Since 1856, parliamentarians have sat and debated topics ranging from voting to vaping. With the stories and scandals arising from the 24-hour news cycle, we can sometimes forget that these elected officials on Macquarie Street are responsible for deciding the future of NSW. Statute, more powerful than common law or equity, is written and debated upon by our fellow man.

To consider the role of the Parliament of NSW from a legal point of view, The Brief is proud to present a conversation with the Leader of the Opposition in the Legislative Assembly, the Honourable Mark Speakman.

How would you describe the purpose of the Legislative Assembly, and how would you say that it serves society?

The purpose of the Legislative Assembly is to make laws, but I think politicians and parliamentarians in NSW have a broader purpose. We're here to be leaders of society in a more general sense. Since we have a system of responsible government here, politicians have a broader policymaking role to lead the state on policy matters, whether they’re in Opposition or in Government, because, we don't really separate the executive from the legislature, parliamentarians in government also have the additional duty of executing the laws.

Edmund Burke, in his Speech to the Electors of Bristol, held that the duty of a parliamentarian is owed first to the nation and then to his constituents. Which duty do you find most compelling: representing the views of your electorate, representing your personal philosophical views, or representing your party’s views?

I don't think it's all one thing or the other. There are some issues where I have to exercise my judgement, because that’s what I was elected for. If people just wanted me to do things with majority support in the electorate, then we should just get rid of politicians and have online referenda or plebiscites on every issue. One of the roles of leaders as well is not just to follow, but to lead. You can't be way out in front of the pack, but you should be at the head of the pack, trying to bring people with you.

But still, there are perspectives that wouldn't have occurred to me without meeting and encountering constituents and hearing their stories. Often, what we think is important is derived from our own experience. It's only when we go out and see people in any number of desperate circumstances that we come to truly know the difficulties one can face. I suppose we know these things in theory, but until we actually see it face to face and it becomes concrete, it just doesn't hit us. It’s in keeping with an old bit of advice; that being, it's always better to lobby a politician in person, to go and meet them face to face, rather than to just write a letter, which can often be passed like a ship in the night.

Have these encounters with constituents actively changed your personal views, or do you hold them alongside your private views?

There are areas where I’ve formed views where hitherto I held no views. For example, the Legislative Assembly recently passed legislation regarding coercive control. If you had asked me ‘What should be considered coercive control?’ five years ago, I wouldn't even have known what it was. But as the Minister for Prevention of Domestic Violence, I had frequent contact with domestic violence victim survivors. If I hadn't seen their lived experience, I may not have been as cognizant of the issues. Unless you're seeing lived experiences in front of you, it's very easy to just not be concerned about it. It’s human nature — out of sight, out of mind.

How do you order your duties to your party and in representing your own personal philosophical views? When you find yourself at odds with your party’s line, how do you resolve the conflict?

We have very few of what are commonly called ‘conscience votes’ or ‘free votes’, like on abortion or euthanasia, but every vote is at heart a conscience vote. As a minister and as the leader of the Opposition, I can put my opposing views before the shadow cabinet. If they fail, they fail. I've never felt so aggrieved by something that I had to resign, either as a shadow minister or a minister. But that's the principle of party solidarity; in that sense, every vote is a conscience vote.

In that vein, do you hold your personal views as something subjective and personal, or rather as reflecting inherent moral truths that are valid in different places and across different eras?

There seems to be one common theme in the ethical systems around the world, whether they're secular or religious — the neighbour principle, that is, to love your neighbour as yourself. It’s the golden rule that underpins just about every major religion and every secular outlook as well. So, to that extent, I hold that the neighbour principle is the fundamental moral underpinning of any legal system. Of course, it’s not always perfectly apparent if something aligns with the rule. There will be some examples where it's very clear, but most of the time moral conflicts are the results of conflicting human rights. Most of the time, you won't have a consensus on how those interests reconcile. Let’s not forget that views also change over time. Certain practices that are considered acceptable or appropriate now would have been horrifying or inconceivable to people from 150 years ago, but in 100 years time, our descendants will look back at us and shake their heads at the things we permit. So I think that there is a general moral underpinning, but the only common ground that we can realistically find is the neighbour principle.

Because the Legislative Assembly covers every aspect of life in NSW, how do you find your moral bearings when you have to consider so many circumstances?

Although I’ve mentioned the neighbour principle, I haven't as a legislator consciously thought ‘How does the neighbour principle apply here?’; that's just an unconscious assumption in everything. Considering the issue of coercive control, for example, we had to define what it was. We articulated that it involves a pattern of systemic abuse that deprives the victim and survivor of their independence and autonomy. So, there are two areas of harm which you want to prevent. Some would say that it's illiberal for the state to be involved in domestic relationships in this way, but I would actually say our approach embodies the classical liberal approach. This is because abusers are doing harm to victims, we’re emancipating someone from an abusive relationship rather than depriving someone of their freedom to abuse. With this legislation, we’re guaranteeing victims the normal freedoms and independence that we take for granted.

Finally, because the Legislative Assembly functions as a human institution, it’s bound by the limits of time and effort. How do you reconcile the pragmatic operation of the Legislative Assembly with principled decision-making?

Politics inevitably involves compromise. If you're part of a team and you don't have unanimity on a policy, you have to work out why you cannot possibly agree with your opponents, and then you resign or cross the floor or something to that effect. Politics is basically constant compromise, and the moral challenge is to make sure that the compromise you make is morally justifiable to yourself.

Editor’s Note: All views expressed in this interview are the personal views of the Honourable Mark Speakman. They do not represent the positions of Macquarie University Law Society, the Law School, the University, or The Brief. A parallel interview request was made of the Premier of NSW, the Honourable Chris Minns. In keeping with the editorial standards of The Brief, we maintain a strict commitment to apolitical and neutral content.

This article was originally published under the title ‘A Brief Conversation with the Honourable Mark Speakman: Eternal Laws for Secular Times’ in The Brief Edition 3, 2024 — Ad Aeternitatem.