Re-imagining our democracy

Such reform is vital to ensure that subsequent generations have faith in the system of government, and that it remains relevant and as good as possible.

Without this, popular support can weaken over time and with it the legitimacy of the democratic structure. These issues require a contemporary commitment to nation-building. While the focus has been on economic reform and grand achievements of infrastructure, like the Snowy Mountains Scheme, and population, with immigration, we have not paid sufficient attention to other big-picture issues, such as how power can best be exercised.

The political rhetoric hints at the problem, but rarely acknowledges the high cost of not reforming the architecture of government: the price of the broken federal system alone is billions of dollars wasted every year.

It is impossible to estimate the full cost, as inefficiencies multiply it in the private sector and across the community. The impact can be felt throughout society: poorly designed policies and laws reduce standards of services such as health and education. It provokes expensive battles for control between the commonwealth and the states, and binds some of the biggest challenges facing the nation in red tape. It can also cause inaction when no government accepts responsibility.

Addressing this is not for the timid, but failing to address it will store up problems that will rebound electorally. Having coast-to-coast Labor governments presents a historic opportunity to reform the system of governance without distracting partisan squabbles. Not to grasp this opportunity would be to squander a once-in-a-century political opening to develop a political framework that will serve Australia well into the next century, one that will be profoundly different from the last.

I am not railing against all aspects of our system. There is much to be proud of in our political traditions and rules of government. Australia is one of the oldest continuous democracies in the world with a constitution that holds up well against many others. Nonetheless, we rest too often and too much on past achievements. We have not followed up the initial good work by ensuring the system is kept up to date.

The process of amending the Constitution has been invoked 44 times, but only eight proposals have succeeded. None of the eight changes was a major revision of the text although some of the changes have been of political importance. Two stand out. The 1928 referendum added a new economically significant section, 105A, which enabled the commonwealth to make agreements with the states to take over their debts, and the 1967 referendum deleted discriminatory references to Indigenous peoples and allowed federal laws to be made on their behalf.

One of the greatest impediments to re-imagining our democracy is that Australians are largely unaware of the underlying problems. Rather than being engaged and active citizens, many are woefully ignorant of even the most basic aspects of government. This has been demonstrated for years.

A 1987 survey for the Constitutional Commission found that almost half the population did not realise Australia had a written Constitution. The 1994 report on citizenship by the Civics Expert Group found that only one in five had some understanding of what the Constitution contained, while more than a quarter named the Supreme Court, not the High Court, as the top court in Australia. Only one in three felt reasonably well informed about their rights and responsibilities as Australian citizens.

Many Australians even believe we have a national charter of rights, according to a 2006 Amnesty International Australia poll of 1001 voters by Roy Morgan Research. Remarkably, after years of heated debate about terrorism and detention laws, 61 per cent of those polled believed Australia had such a charter. The level of error was derived in part from the frequent references to bills of rights in popular culture, including US television programs.

One reason for this is that the Australian Constitution was not written as a people's document. It was written as a compact between colonies to meet the needs of trade and commerce. Lowitja O'Donoghue, former chairwoman of the Aboriginal and Torres Strait Islander Commission has argued, "It says very little about what it is to be Australian. It says practically nothing about how we find ourselves here, save being an amalgamation of former colonies. It says nothing of how we should behave towards each other as human beings and as Australians."

Another reason for the lack of engagement is that the Constitution does not match the reality of how government actually works. It does not mention many of the most basic features of government, such as the office of prime minister or the cabinet. The text even suggests that ultimate political power is held by the governor-general, who is named by section 68 as the commander-in-chief of the armed forces with the power by section 64 to appoint and dismiss ministers. The Constitution appears to give the governor-general the powers of a dictator to rule over many aspects of the nation, according to the wishes of a foreign monarch.

The text of the Constitution does not match political reality, because it assumes understanding of the conventions of the Westminster system of government operating in Britain in 1901. Those assumptions are not explained in the text, so an air of unreality pervades our most basic law and becomes a barrier to understanding how the Australian system of government actually works.

Ignorance and false knowledge are a cause of the alienation and anger that people sometimes express, such as when their beliefs about individual rights prove to be ill-founded. Such emotions are often directed solely at political leaders, despite the deeper origin of the rules that shape their behaviour. The result is that many Australians are ready to blame government, while assuming the foundations are sound.

This is dangerous. It produces a "if it ain't broke, don't fix it" conservatism which becomes a major barrier to reform. When combined with political cynicism, it leads to a cycle without an easy exit. The problem is compounded by passivity about the erosion of good government. Perhaps because of a lack of knowledge, people rarely see themselves as active participants in a debate about how the system could improve. Australians and their elected representatives have come to accept working within a flawed system, despite the enormous costs it imposes.

Given the problems, why after more than a century has our system of government not ground to a halt? The answer often lies with judges. As the responsibility for initiating and leading change has been abdicated by elected representatives, it has been assumed by the High Court.

By interpreting the Constitution and legislation, and developing the common-law, the court's decisions have transformed how we are governed. Over a century, it has shifted law-making and financial power to the commonwealth, discovered implied human rights such as freedom of political discussion and recognised Aboriginal native title.

The high point of High Court activity came in the early to mid-1990s, when Anthony Mason was chief justice. A series of decisions, including the Mabo native title case, opened up a debate that continues about the proper scope of judicial decision-making. This has included frequent use of the term "judicial activism" and the notion that judges have overstepped their role. Of course, the term is a pejorative one, as Janet Albrechtsen wrote under the heading "Death to Democracy" in The Australian on June 26, 2002: "A war on democracy is taking hold across the West. It's being launched by activist judges trying to overturn the will of the people ... At bottom, these activist judges think governments, politicians and the people who elect them cannot be trusted. The logical end point of this is elite rule. It might be a seemingly benign, well-educated, intelligent elite, but it's elite rule all the same. To date we've eschewed it as a poor alternative to democracy."

Her language is overblown, but Albrechtsen raises important questions: whether judges act undemocratically because they are not elected officials, whether they play an illegitimate role in making transformative decisions.

There is some merit in this "democratic deficit" argument. If you were to pick an arm of government to be responsible for national reform, you would not chose the judiciary. It is highly unrepresentative - the first female justice was only appointed to the High Court in 1987 - and can only decide those matters brought before it. Put simply, you would be hard put to say the best shapers of the nation could be seven unelected lawyers. While the court has an important and necessary role in nation-building, it is not well equipped to play the lead.

My own thinking has changed significantly. It began when I walked into the High Court building in Canberra in early 1992. I had come straight from law school and was lucky to arrive at the beginning of the most interesting and active year in the court's history. That year the Mabo case and early free-speech cases marked the peak of the Mason court's impact on Australian law and government. It was a year when the court demonstrated it could play a major role in shaping Australian democracy. As a young graduate, it seemed to me that the court had all the answers and arguments for a leading judicial role.

I continue to believe the Mason court made the right decisions on key issues such as native title, but I have changed my mind about the appropriate role for the High Court. It is not the right leader, being institutionally incapable of achieving desired outcomes. While recognising native title was a momentous achievement, this has since foundered as new judges were appointed. The court alone could not forge a lasting political settlement.

I now believe that the best way to improve human rights protection is new human-rights laws. In this and other areas, it is often better to follow the difficult pathways of partisan politics to achieve lasting results.

While the High Court judges deserve credit for many changes that have updated and improved our system of government, there are dangers in leaving constitutional reform solely to them. Court-initiated change is often a second-best solution. It can distance Australians from their governance and legal structures, contribute to the sense of alienation that weakens our democratic system and undermine the vision of the founders for popular involvement in constitutional change.

Over-reliance upon the High Court has, in recent times, made the community and political leaders unresponsive to the need for change. It is too easy to ignore good arguments for change, even when it is clear that a problem is beyond High Court interpretation and requires constitutional amendment or new legislation.

I am not suggesting that political leaders have totally neglected this aspect of political life. There are many examples of prime ministers striving for - and unfortunately too often failing to achieve - improvements.

Lasting reform can often only be won by democratic engagement and political leadership. Nation-building must transcend the judiciary.

The reform agenda must take a radically different approach. Political leaders must take charge and be prepared to devolve real power to the people. Australians need more than a veto at the ballot box; they must be given a genuine say in shaping reform itself. Change must be led from the ground up, rather than being imposed from above.

Australia needs a new agenda for reforming how it is governed. It needs to be bold in what it tackles, but also pragmatic and realistic, avoiding wherever possible the need to hold referendums until people become more comfortable with change. The strategy should focus on incremental reform, small achievements that generate the momentum needed for more significant improvements. History shows that there are no quick paths to success, only quick paths to failure. This means we need a forward-looking agenda that educates people and encourages them to be involved. We need to trust people so that they have a genuine say in shaping the future of Australian democracy.