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Democracy by the Wayside

By Graham Young - posted Thursday, 15 April 1999


Opponents say that the Wayside Chapel Shooting Gallery experiment is merely unethical undemocratic attention seeking. Yet while it is undoubtedly an act of civil disobedience, civil disobedience can be integral to democracy.

We often think that democracy is something that only occurs via the ballot box. Nothing could be further from the truth. Our system abounds in complications and contradictions, which mean that the true will of the electorate is often impossible to discern. 5 times in the last 50 years the party that won federal government did so with less than 50% of the vote. Was this democratic? No-one knows because Federal Elections don't ask the electorate who it wants to see as the government, but rather, who it wants as their local member.

This is further complicated by questions as to whether people who are forced to vote, or to express a preference, are really exercising a full democratic right. Perhaps that exercise would be fuller if they had the whole range of options. In the Senate, where electors take more of a global view, all too often the real power is handed over to minorities and eccentrics like Harradine and Colston. And the mathematics which rule in the proportional system mean that increasing or decreasing quotas, or having even or odd numbers of positions elected, can dramatically affect the representation of minority and majority points of view. In any case the Senate is gerrymandered so as to give tiny Tasmania just as many representatives as New South Wales.

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Welded on to this basic uncertainty as to the truly representative nature of the legislature is the precision with which law can actually be uttered, given the limits of language and circumstance. When the legislature makes a law, does it actually know what it is doing? Often not, even if it was capable of speaking with one voice, which it quite obviously is not. Bills are frequently amended, and sometime intention goes so badly astray that Parliaments are forced to legislate retrospectively to tidy the absurdities up.

So the task of interpreting the law falls to an outside and impartial observer - the courts - which in a broader sense is also part of the Government, although not the Executive. In this role, not only do the courts make law by interpreting legislation in ways that the legislature possibly did not mean, but the courts have a hallowed role, predating effective legislatures, in making laws themselves - the common law.

The police also play a role, as the judicature never gets to adjudicate if the offence is not brought to its attention in the first place. In most cases the police discretion is trivial in its effect, as it deals with individual cases and is often based on the availability of evidence and resources more than a judgement as to whether a law is broadly accepted.

But there are occasions where the effect is more than trivial. Enforcement of abortion law is one where lack of police action has effectively led to abortion on demand. Shooting rooms may be another. And if no-one is prepared to enforce the law, then it might as well be said not to exist, for it is of exactly the same effect as if it did not exist.

Now one school of thought would say that the police should be forced to act, otherwise the law will be held in contempt and open to special pleadings at the level of enforcement, putting police into an invidious and untenable position. This ignores a number of things, not the least the essentially contingent nature of our democratic institutions. They exist not so much as to allow for the perfect exercise of community power, but rather to legitimise the necessarily imperfect exercise of power by government. We accept this system because at least it gives us say in who makes the decisions. But there are situations where the decisions are so far out of whack with the prevailing community belief that they need to be brought back into line.

Often the politicians understand that they are out of line, but are themselves powerless. Those of us who habitually vote Liberal or Labor are partly responsible for this. As recent election results show, the urban middle class splits increasingly evenly between Labor and Liberal. The result of this divided loyalty is that those of us who are middle class cede power to the swinging voter - if these people are afraid of crime, deregulation, welfare cheats and so on - then policies that accommodate these fears are what we will get. 60% of us get the government that another 30% want! (The other 10% don’t want a bar of it at all.)

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I suspect a poll of the electorate would show general approval of shooting rooms, but what politician would be brave enough to advocate this position knowing that they could lose the key minority that gifts them power. In these situations, where the system is constipated, there is room for a purgative made of people of goodwill breaking the law. If these people are of sufficient standing, and the laws are held in sufficient contempt, then the police can and will do nothing.

This is ethical and democratic because fundamental to democracy is the concept that the governed must consent. If the governed do not consent, then they are entitled to civil disobedience, but with one caveat. It is a right that needs to be exercised carefully. If it is used promiscuously, then it will lead to the breakdown of civil order, and the impossibility of any democratic action.

The question then logically arises, is this situation serious enough to demand the exercise of this right? In this case I think society is in a position to decide for itself. If it thinks that it is too trivial then undoubtedly we will see the offenders brought to book by the Courts. Their status and the seriousness of their cause will be insufficient to protect them. But if society does agree, in general, or perhaps more accurately, does not sufficiently disagree, then they will remain in operation.

Now some might say that, irrespective of the convenience of this approach, Parliaments have a duty to ensure that whatever occurs is morally correct. There are some areas where I would agree - capital punishment for one - but not here. My argument does not depend on some idea of moral relativism, but on the concept that in a real world you can only compel your fellow citizens to go so far along the road. You may have to shift your time horizons beyond the immediate, and work to change their opinion. Or you may have to accept that there is a degree of moral perfection that is only attainable by a few, and that, as we are, and should be, a society of the many, that perfection may have to be a personal rather than a cultural achievement.

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About the Author

Graham Young is chief editor and the publisher of On Line Opinion. He is executive director of the Australian Institute for Progress, an Australian think tank based in Brisbane, and the publisher of On Line Opinion.

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