Reforming and modernising our government

The Haneef case, Australia's broken federal system, the lack of ministerial responsibility and the decline in confidence in public institutions are all symptoms of a larger problem.

It is the failure of our parliaments and political leaders to update and renew Australia's system of law and government in line with the realities of the modern world. While other countries have embraced reform, we have long since fallen behind.

This is one of the missing issues of this year's federal election. Its absence is even more apparent because of developments in Britain, from where our law and institutions of government are derived.

Unlike newly installed Prime Minister Gordon Brown and his predecessor, Tony Blair, neither John Howard nor Kevin Rudd have proposed an ambitious agenda for modernising Australian government. Ours is a nation in which a lack of vision and imagination, combined with political self-interest, stand in the way of reform.

Upon becoming Prime Minister in late June, Brown's first major announcement started a public debate on far-reaching changes to how Britain is governed. His green paper calls for constitutional change that "entrusts more power to parliament and the British people".

It follows reforms initiated by Blair, including to the House of Lords, a new UK Supreme Court and the enactment of the UK's first Bill of Rights. Brown is promising to take this much further. Indeed, if he implements his program in full it will be the greatest wave of reform to law and government for at least a century.

Brown's agenda focuses on the relationship between parliament and the executive, the appointment of judges and other public officers and improving British democracy.

When it comes to the first, people often refer to the sovereignty of parliament. However, in countries such as Britain and Australia, this has long been a fiction. The real power lies with the executive, directed by the prime minister and ministers, who, with the aid of party discipline, can exert control over most aspects of parliament.

The shift in power to the executive has accelerated over the past decade, especially after September 11. The need for new legislation to protect the community from terrorism provided both a policy rationale and an often handy excuse for transferring power and decision-making functions to government. This has been at the expense of both parliament and the courts.

Remarkably, Brown is promising to reverse this trend. In 12 key areas, he is prepared to surrender or limit executive power and transfer back responsibility to parliament and other independent decision-makers.

These powers concern long neglected aspects of governance, many of which remain unchanged because of the benefits they bring to those in government. One example is the inadequate, often non-existent regulation of ministerial advisers, something that can allow governments to deflect blame and avoid scrutiny. Brown's plan is to introduce legislation to clarify the proper role of these advisers.

The most contentious reform is to the power of government to deploy troops abroad to a conflict like that in Iraq. The proposal is to give parliament the ultimate say on such decisions, perhaps in the form of a veto.

There has been little attention paid in Australia to doing the same. A bill was introduced by the Democrats in 2003 providing for parliamentary approval for Australian involvement in overseas conflicts, but it was the subject of minimal debate and has since sunk without trace.

Brown is also proposing to surrender power over the ratification of international treaties. In both Britain and Australia, only the government can ratify treaties. Investing parliament with real power would be a worthwhile step in overcoming an obvious democratic deficit. It would be consistent with the contemporary importance of international agreements to domestic issues like free trade and climate change. The same reform has been put forward in Australia, but has yet to gain political backers.

These and other proposals, like a new ministerial code and legislation to guarantee the neutrality of the UK public service, respond in the words of the green paper to how "power remains too centralised and too concentrated in government".

This recognition is itself startling. No government in Australia has been willing to recognise they have too much power, let alone to surrender key aspects of that power in such a systemic way. Instead, governments have tended to take the view that the power they have is insufficient.

When it comes to the judiciary, the Blair government made major changes, such as creating an independent body, the Judicial Appointments Commission, to provide arm's length advice on the selection of judges. This is consistent with practice in other nations such as Canada and has been an important step in making the judicial appointment process more accountable and in lessening the harmful role that politics can play in selections.

Brown has suggested taking this further by giving a role to parliament in choosing judges, perhaps through confirmation hearings like those in the US. Brown's new Lord Chancellor, Jack Straw, has rejected this, saying he will "not second-guess the recommendations of the Judicial Appointments Commission", thereby removing the government from a decision-making role in the process.

This radical development arguably goes too far in removing the government from having any direct say in the appointment of judges. It certainly goes beyond the Australian system whereby federal judges, including those on the High Court, are chosen solely by the government of the day.

Australia lacks a Judicial Appointments Commission and instead follows a secret selection process often based on a range of factors other than legal ability, such as friendships, politics and state of origin.

Unfortunately, Australian politicians seem content with an appointment system lacking transparency and community engagement.

Brown is also proposing to make changes to British democracy. These include sensible measures like changing the day of their national elections to the weekend and providing for e-petitions to allow people to agitate for change on-line.

He is also willing to look at lowering the voting age from 18 and to examine other ways that citizens can be involved in government. These include the ideas that people could intervene with their elected representatives to demand action and even have a greater say in local spending decisions.

The most far-reaching suggestion is that Britain adopt a written constitution. Unlike Australia, the UK system is based upon a complex, often disputed, mix of legislation, convention and tradition. Brown is proposing that the checks and balances within the British system be incorporated into a single, clear, written instrument.

This would give Britain a modern constitution, as opposed to Australia's 1901 law. Brown has also put forward the idea that the UK's 1998 Human Rights Act be replaced by a new constitutional bill of rights and duties. While Australia does not have a national bill of rights, and is the only democratic nation not to do so, the idea that human rights come with responsibilities is a feature of the Victorian Charter of Human Rights and Responsibilities.

Britain is in the midst of debating an array of challenging new ideas for the reform of law and government. They demand consideration not just in the Britain but in Australia.

Just like Britain, Australia needs a political commitment at the highest level to a long-term vision for modernising how we are governed.