Democracy has long odds in a stacked house

Across modern democracies, there have been increasing public complaints that executive government is too powerful and too dominant. The concern is not new, but it has become more urgent as executive government increasingly controls and manipulates not only parliament but also the other institutions of state, such as the public service, advisory bodies and, in some cases, the judiciary. In the 1970s, British Conservative politician Lord Hailsham believed such trends meant modern government had become an “elective dictatorship”, whereby, although elected, it dominated all aspects of the political process at the expense of democratic practice.

These trends are not only evident in Australia, too, but for a number of reasons are even more pronounced than elsewhere. Prime Minister Kevin Rudd’s demands earlier this year that the Opposition and Senate “get out of the way” to pass without alteration the $42 billion plan to stimulate the economy highlighted the executive’s frustration with any delays to its grand plans.

In 2007, the Queensland Parliament passed legislation to halve the number of local governments in a 12-hour all-night sitting with limited debate. At one stage, the local government minister threatened municipal authorities who had dared to stage referenda on the issue with fines and even instant dismissal.

New South Wales’ fixed parliamentary terms make it impossible to force that state’s Government to face voters at an early election, despite deep and widespread concerns about the state’s management crises.

One explanation for the emergence of “elective dictatorship” is the increasing focus on government leaders and the almost endless election campaigns that are now a feature of modern democracy. Consequently, the executive becomes more anxious to control both the political agenda and the institutions of government to minimise mistakes and maximise political outcomes. This desire for control is reflected in the expansion of the prime minister and premiers’ departments that now dominate government operations.

Today, leaders want not only to have their finger on the pulse, but to control the flow of all government business. These centralising trends, while evident in other Westminster democracies, have been practised with greater enthusiasm in Australia, as measured by the size, roles, powers and resources now devoted to these key agencies.

Another trend that reinforces the executive’s dominance is the extension of government control over senior appointments in the public service. Short-term contracts and the tendency for state departments’ heads to report directly to premiers bolsters the executive’s control of the bureaucracy. Further, an increasing proportion of parliamentarians now hold executive appointments as ministers or parliamentary secretaries. Australia-wide, almost one in five parliamentarians now hold such posts. The executive has hijacked the legislature’s personnel, reducing parliaments’ capacity to oversee executive actions.

One response to address this imbalance has been to create new, extra-parliamentary institutions to supplement existing bodies, such as auditors-general, to scrutinise the executive. Hence the growth of administrative and Freedom of Information law and new institutions of review, such as ombudsmen and anti-discrimination agencies.

As well as these external agencies, another special external review mechanism has been established. Several jurisdictions have set up anti-corruption bodies to oversee the executive, as a result of the spate of corruption inquiries and royal commissions that convened across Australia during the 1980s. These bodies included the Independent Commission Against Corruption in NSW, the Anti-Corruption Commission (now the Corruption and Crime Commission) in Western Australia, and the Queensland Criminal Justice Commission (now the Crime and Misconduct Commission).

There are flaws in both the new and traditional review agencies. One problem is that the executive controls the resources of and appointments to these bodies. While there are sensitivities concerning any overt manipulation or stacking of such bodies, there are numerous examples of the executive seeking, often with success, to reduce the resources and powers of these agencies or appoint office-holders who are more amendable to the government’s viewpoint.

The relatively recent fates of several state auditors, as well as law changes that reduced the ambit of their investigations, highlight how vulnerable such review agencies are when faced with determined executive action. Even the aforementioned anti-corruption bodies have not always been spared: Queensland’s Criminal Justice Commission, established as a result of the Fitzgerald royal commission in 1989, had a harrowing time under Labor and Coalition governments when its inquiries impinged on executive activities.

Such external bodies, dubbed the “fifth wheel” of modern government, do not sit well with Westminster government, with its underlying assumptions of ministerial responsibility and its “winner takes all” approach to power. In Queensland, with its unicameral legislature, the parliamentary committee established to oversee the Criminal Justice Commission often provided no protection from the executive’s interventions, as the committee was dominated by government members. This was where the much-praised Fitzgerald royal commission missed its mark. It recognised that corruption could only flourish under poor governance structures, but its prescriptions ignored the executive’s dominance over all aspects of government. Worthwhile reforms have been introduced into Queensland’s Parliament and public service, but the state’s unicameral legislature is too easily dominated by the party that forms the government, granting the executive complete control. The royal commissioner, Tony Fitzgerald, QC, did not explore the upper house solution as a means of providing a counterweight to executive dominance.

Extra-parliamentary bodies alone cannot ameliorate this dominance unless they are accompanied by improved parliamentary oversight and executive restraint. Bicameral parliamentary systems are the best way to achieve this, with upper houses appropriately structured to act as a countervailing influence on executive exuberance and arrogance. The Rudd Government is just starting to learn that the Senate counts, and that, as a democracy, we are better off because of its continued existence.