Democracy or bureaucracy

Politicians represent us in making laws so that we don't all have to trot down to the town square daily to vote on everything.

If a proposed law is objectionable, we can lobby MPs about it. Historically, this system has served us tolerably well. However, our democratic rights are gradually being eaten away.

Public 'servants' write legislation and, increasingly, they defer much of the detail to regulations. Unlike legislation, regulations are not automatically debated in parliament. Instead, they are simply tabled and require a disallowance motion to defeat them. This makes them much harder for citizens to influence.

Worse still, in designing regulations, the public service defers detail to policy which is routinely changed by bureaucrats without reference to parliament.

In this way, bureaucrats are gradually writing themselves more power even though they represent no one and can never be voted out. They are eroding democracy.

In theory, there are 'checks and balances'. In practice, when bureaucrats have spent up to two years developing legislation or regulation, they are extremely reluctant to change it.

There are guidelines that must be followed, but bureaucrats are adept at meeting requirements in a minimal way e.g. meeting with stakeholders ticks the consultation box, but does not necessarily mean stakeholders have real input.

Public submissions are taken but if submissions are heavily against the proposal, departments can report that there was good public engagement and dismiss objections as 'unrepresentative'. Likewise, Regulatory Impact Statements can cherry-pick research and data to favour the outcome chosen by the bureaucracy. Submissions are then 'considered' before final (usually minor) adjustments are made and the regulations are tabled in parliament.

To illustrate how this works, here is an example from my own community:

Up until 2006, Victorian law required home schoolers to be able to prove, in a court of law, that they were educating their children. This balanced a parent's right to choose an education against the state's obligation to ensure the child was educated.

With the passage of the Education and Training Reform Act 2006, this changed to an obligation to register and comply with regulations. Home educators saw this as problematic and lobbied hard. We were all prepared to demonstrate that we were educating our children, what we didn't want was to meet arbitrary requirements set by the very system we wished to differ from, requirements we suspected would be more about paperwork than education.

However, in 2006 the government had a clear majority and the law passed. Home educators believe the significant parliamentary scrutiny of the Act they caused influenced the government to release reasonable regulations.

However, those regulations expire shortly and replacement ones developed by the Department of Education and Training would defer essential details to policy. These regulations will be tabled sometime in the next month. Stakeholder consultation has been minimal and had no effect on the regulations drafted.

In the first round of submissions, the 43 submissions which expressed satisfaction with the current regulations were dismissed and the two submissions (by government agencies) advocating higher regulation were given credence.

In the second round, 565 submissions were made, with only 16 not about home education. Overwhelmingly, home educator submissions opposed the changes.

After perpetrating a massive privacy breach in the publication of submissions, and then retracting sections of submissions in the republication process, the Education Department has indicated the regulations will be tabled without substantive change.

Once passed, the requirements for home education will be exclusively controlled by the Department of Education and Training. As the department runs the state school system, it has a vested interest in discouraging alternative education methods. Many home educators find that the registration body already actively discourages people from home education and the proposed regulations would enable policy that fits that agenda.

Home educators would prefer to keep the emphasis on education instead of unspecified bureaucratic requirements which can be changed and increased without consultation or parliamentary scrutiny.

The only way for the regulations to be avoided is through a disallowance motion. The Liberal Nationals will move this once the regulations are tabled, but the motion is dependent on cross-bench support to succeed.

This pattern of deferring details to subordinate legislation and policy is discernible throughout our law-making and could gradually result in a 'democracy' where citizens have very little control over the laws that govern their lives. Laws would say 'comply with regulations', regulations would say 'comply with policy', and the public service machine would grind on making policy.

Bureaucracy works on the Pythonesque principle that the policy is right because the policy says so. Whenever policy is revised, citizens can object, but their objections are met with standard letters.

When politicians make bad (or unpopular) laws, they can be voted out. When bureaucrats are in charge, there is no debate, there is no scrutiny, there is no accountability.

At what stage will our democracy tip over into being fully governed by the bureaucracy and will it be too late then to object?