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Re-imagining our democracy

By George Williams - posted Thursday, 7 February 2008


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.

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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.

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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.

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This edited extract from Thawing the Frozen Continent, one of several essays on the theme re-imagining Australia, Griffith Review, Edition 19, (ABC Books, www.griffithreview.com), out February 8 was first published in The Australian on January 26, 2008. 



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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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