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Reforming and modernising our government

By George Williams - posted Monday, 13 August 2007


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".

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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.

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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.

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First published in The Australian on August 3, 2007 as "Vision is needed to drive reforms".



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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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