CPDS Home Contact Professionalism: Chronological Summary

18 November 2005

Hon Mr Tony Fitzgerald QC

'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:

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:

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.


John Craig