18 November 2005

Hon Mr Tony Fitzgerald QC
c/- LEADR

'Unjust laws an abuse of power'

I should like to endorse the concern you expressed in a recent article about the poor condition of Australia's democratic system, and provide some feedback about possible causes of these problems and what may be required for a solution.

My interpretation of your article: Citizens are seen to be indifferent to / cynical about politicians - creating a dangerous moment in Australia's democracy which is seen to be drowning in distrust. Democracy (unlike politics) is not only concerned with gaining / using power. It also requires regular fair elections, legitimate means for obtaining power and effective control over how power is used. Governments exist to implement popular will, but can't have unfettered power in doing so. Individuals and minorities must be protected from abuse of power. US democracy guarantees basic human rights. Democracy also involves effective separation of powers. Executive government in Australia, contrary to international norms, faces few constraints. Parliament can't prevent unjust policies - eg partisan public service appointments, spending money for political advantage. A major problem area has been manipulation / distortion of information to public. Australian courts are little interested in democracy / justice. Parliamentary supremacy is critical in relation to rule of law. All parties continue to resist application of constraints that real democracy would pose to unfettered use of power. The political case for unfettered parliamentary supremacy is that people can always change government. But this does not explain why governments need the power to enact unjust laws. Courts can declare a law invalid if it infringes interstate trade, but not if it infringes basic human rights. Elections provide no real choice. Citizens need to show that democracy is too important to be left to professional politicians. Having invaded another country that posed no threat, and thus increased exposure to terrorism - politicians now use fear of terrorism to support unjust laws. The same tactic has been used to justify internment of refugees. Australia must become a truer democracy - and less a place where political parties contest for power. Democracy exists only where citizens are prepared to do the hard work of maintaining it (Fitzgerald T., 'Unjust laws an abuse of power', Australian, 4/11/05).

Many writers have highlighted growing problems affecting democratic institutions over the past two decades. An outline of some of those concerns and an attempt to place them in context (and thus to suggested causes) is presented in Challenges to Australia's Democratic Institutions. This suggests that difficulties may have arisen because:

• massively increased complexity (ie the interconnection of issues) has made it very hard to generate effective solutions to problems democratically, or to conduct public debates which adequately encompass the issues involved (eg in relation to the invasion of Iraq);
• globalization has reduced the ability of governments to have the sorts of economic influence that they once used to have;
• the effectiveness of government machinery has been severely reduced by changes (such as politicisation and the adoption of pseudo-commercial methods) that it had been vainly hoped might increasing political control and reduce economic constraints;
• the notion of 'public truth' (which is the foundation of meaningful democratic debate) has been challenged by the post-modern epistemological assumptions that have pervaded university humanities' faculties;
• in the absence of readily identifiable sound policies, electorates have tended to endorse political leaders who reflect populist assumptions;
• the institutions that are needed to make a democratic system operate well have not been adequately supported.

The latter speculations are presented within a document (Australia's Governance Crisis) which considers several other apparent difficulties facing Australia's system of government, as well as those related to effective democracy.

The suggestion in your article that effective democracy requires that citizens be willing to do the hard work of maintaining it is undoubtedly correct. However I submit that it is not as simple as that because:

• Australia's community is accustomed to a dependency status on powerful protectors from whom major policy ideas are copied - and domestic institutions that could sustain democratic processes independently are either absent or weak. This can be illustrated by the case of Queensland with which I am most familiar (see Queensland's Weak Parliament). The latter suggests that the absence / weakness of effective civil institutions is both a cause and a consequence of the under-developed resource-dependent character of the economy;
• unbalanced attempts to strengthen democratic institutions have done enormous damage to the machinery required for democratic institutions to be effective. For example, in Queensland in the early 1990s attempts to increase accountability and responsiveness to democratic institutions had the effect of ruthlessly repressing the initiative and professional competencies needed to find solutions to the practical challenges those democratic institutions were supposed to be addressing (see Queensland's Worst Government). Then in around 2000 the federal government reportedly adopted centralised / politicised strategic planning arrangements like those which had led to injustices and administrative / political failures in Queensland and several other states (see Decay of Australian Public Administration);
• it is probably not only 'civil' institutions and a competent Public Service that are now needed to sustain an effective democratic system. Economic globalization and intense international competition have reduced governments' ability to gain revenues to provide the level of services and wealth redistribution that electorates would prefer. Given the tough international competitive environment it seems likely that apolitical institutions to dynamically boost economic capabilities may be required to strengthen productivity performance and the tax base (see Defects in Economic Tactics, Strategy and Outcomes).

The point that I am trying the make is that one can not satisfactorily deal with these incredibly complex policy issues by separating them into manageable parts (such as the reform democratic institutions which your article addressed) because the interconnections between all the various parts have become too numerous and significant. Unless and until methods designed to manage this complexity are used (and they do exist), attempts at reform will often make the situation worse and citizens will rightly become ever more cynical about / indifferent to the democratic political process.

I would be interested in your reactions to my speculations.

Regards

John Craig