The 1998 Ronald Wilson Lecture presented for The Constitutional Centre of Western Australia and The Francis Burt Law Education Centre, Perth, 26 August 1998.Democracy
One of the greatest challenges facing the rising generation is the preservation of the democratic character of government.
Democracy means government by the people. In a small village democracy everyone could meet and take part in government, but the democracy of a municipality, State or country has to be representative democracy, where elected representatives govern on behalf of the people. A satisfactory democracy is one that it is governed in a way which is responsive to the opinions and needs of the whole community.
It is widely recognised that Australia has one of the oldest, most stable and best democracies in the world. We inherited that priceless possession. Why is it so valuable? Governing involves people having and exercising power over others. All humans are entitled to respect but all have their weaknesses. There is no more important truth about the effect of having power over others, than Lord Acton’s, ‘Power tends to corrupt and absolute power corrupts absolutely’. As we see from a number of countries around the world, power strongly tempts people to govern in their own interests and those of their cronies and abuse the interests and welfare of their opponents and of ordinary people. So that people can live their lives free of oppression, it is vital to know from history the way that tyrannies have arisen and make certain that our system has the safeguards that will ensure, not in theory but in reality, that government action is responsive to the opinions and needs of the whole community.
Because democracy belongs to the people, so does the responsibility for making it work properly and for ensuring that it maintains the strengths and safeguards to cope with the influences threatening its continuance in the changing conditions of today and tomorrow. In a democracy there is no-one standing over you and forcing you to do these things. They will only be done if people themselves understand how the system works, its value and the nature of the threats, and act of their own initiative, alone or together, to preserve its democratic character.
Ordinarily when we speak of ‘the Government’ we have in mind the Cabinet or Ministry headed by Prime Minister or Premier. In this lecture we are concerned with government in what has been called the ‘largest sense’, which includes the whole system of government or in other words, the whole constitutional system. It includes the four basic parts of the system, the Parliament, the Government or Cabinet, the Governor-General or Governor and the courts. Australia is a federation with a Commonwealth system of government and a similar system for each of the six States, perhaps soon seven. (The referendum in the Northern Territory for it to become a State failed on 3 October 1998) Usually in discussion we take the Commonwealth system as the example. To emphasise that democracy faces similar challenges at both Commonwealth and State level, I take a State system as the example.
What are the essential components of a good democracy? The quality of a democracy reflects the quality of both its constitutional system and its community. First, it needs a constitutional system which provides for free and fair elections and has the built-in safeguards to lead those in its various parts to exercise powers in the ways the system requires. Second, the great majority of citizens must have confidence in their community and its democracy. Third, most people must have a respect and concern for others and their rights and interests and be ready to accept and comply with their own responsibilities and the decisions of the democratic system.
Preserving the democratic character of government involves maintaining each of those components in good condition. That requires people to involve themselves in our democracy, know what is happening and actively support the making of any necessary changes or resist a damaging change which has been proposed.
Parliament and the Government
Two of the four basic parts of the constitutional system, the powerful, political, initiating parts, the Parliament and the Government, must be directly responsive to community opinion. Changes of the law by Parliament and the decisions and actions of the Government have great impact on people’s lives. The main safeguard for keeping them responsive to community opinion is the constitutional requirement of periodical elections for the Members of Parliament.
With States of the size we have, it is impossible for voters to have personal knowledge of the candidates or the policies they would support. A party system has grown up in which political parties and their policies become known and most people vote for the candidate of the party they prefer. The party with the majority in the Lower House becomes the Government and its leader the Premier. Support of the majority of that House is necessary so that the Government can have Parliament pass Bills that provide the funds of government. The Government party, having won the election on its policies, has a mandate or authority from the community to put those policies into operation through actions of the Government and Acts of Parliament. The voters’ preference for that party is carried into effect because the elected candidates of the party are bound by party discipline to support the policies of the party and to vote in Parliament as the parliamentary members of the party decide by majority vote at a party meeting. Although that can mean that a member votes in Parliament as the party decides, instead of as he or she thinks best, there does not seem to be any other practical way in a large modern democracy.
The Government is elected in the sense that the Premier and other Ministers need the continuing support of the majority of the Lower House to be able to govern effectively.
Members of Parliament, including those who are Ministers, are responsive to public opinion at all times, not only at election times. This is mainly because they know that they will all have to face another election. Ministers desire to remain Ministers and Members of Parliament to remain members and all of them want their party to be in government after the next election.
If the Government or the Parliament is acting in a way that is widely disapproved within the community, Members of Parliament are very sensitive to it and its likely effects on electoral support at the next election. Members of the government party, particularly those in marginal seats who could be defeated by a slight change in voter support, use party meetings to bring pressure on the Government and party to change so as to maintain community support.
The Premier is the most powerful person in the whole system of State government but only holds that position while he or she has the support of the majority of the parliamentary members of the government party. If a Premier comes to act oppressively towards some people within the community, the party members, aware of the likely electoral effects if this continues, will take action to have the Premier change the approach or be replaced as Premier by another party member.
These mechanisms for keeping the Government and Parliament responsive to the opinions and needs of the whole community are effective only if most of the community have a respect and concern for others and their rights and interests. Otherwise the Government or Parliament could look after their supporters but act oppressively towards the minority who are not supporters, without arousing widespread community resentment. Also, when abuse of power starts it will be noticed by an observant few who are prepared to speak out about it and build community opinion against it. For that there must be freedom of speech, an ability to communicate with the community through the media and freedom of assembly so that people can act together.
Federation
Australia has another protection from oppression. It is a federation with power shared between Commonwealth and States. Usually some Governments are of one party and some of another or others. It is more difficult for a Government to act oppressively against a minority when it does not have sole control. Also, because people tend to vote for parties and most parties operate throughout Australia, unpopular action by the Government of a particular party in one system, beside reducing its own support, tends to reduce electoral support for that party in other systems. Thus, unpopularity of a State Government of one party will reduce the electoral prospects of that party in a Commonwealth election and unpopularity of a Commonwealth Government will reduce the electoral support for its party in the States. This brings pressure on the particular Government from the whole party organisation to cease what is making it unpopular. A workable federation depends on the States having sufficient financial resources and over the years these have become inadequate.
Governor and Courts
In sharp contrast to the two powerful, political, initiating parts of our constitutional system, the Parliament and the Government, it is vital for the preservation of democracy that the other two basic parts, the Governor and the courts be neither directly responsive to community opinion nor elected. They exercise nothing like the power of the other two parts, must remain entirely out of politics and are not initiators of change. Their role is almost entirely one in which they implement or apply the decisions made by others. The Governor, in assenting to a Bill, converts it to an Act and gives legal force to what has been decided on by both Houses of Parliament. In making regulations, appointments or orders the Governor puts into legal form what has been decided by Ministers. In cases brought before them, judges find from the evidence what happened and reach a conclusion by applying to that the law of an Act decided on by Parliament, a regulation decided on by a Minister or the common law as decided by earlier judges. In rare cases where there is no clear law on the point a judge has to decide what law it is proper to apply to reach a conclusion on the case.
The reason that members of Parliament and of the Government are put into their positions by elections and can be put out of those positions by another election, while both Governors and judges are appointed to their positions but can be put out of them in completely different ways, is because the community and constitutional system need them to perform very different duties.
Governor
While the Queen is the formal head of state of an Australian State, the operative head of state is the Governor who exercises the powers of head of state as advised by Ministers of the State Government. Some of those powers belong to the Queen and are exercised as her representative but most of the powers are given directly to, and belong to the Governor.
The powers the Governor exercises can never be exercised by Ministers. They include powers central to the system of government. For example, only the Governor can dissolve Parliament for an election, call it together after the election, appoint the new Premier and Ministers on a change of government, and by giving assent to Bills which have passed both Houses, convert them into Acts with the force of law. In addition to having the legal right to exercise those powers or refuse to exercise them, the Governor makes numerous speeches.
For us to have a workable democracy, the decision on the exercise of those powers must be made by the Ministers of the elected Government and the Governor must not act or speak as a political rival of the Government. Both the method for choosing and appointing and the method of dismissing the Governor are carefully designed to achieve this.
It is important that the Governor should have neither the mandate nor the power base that would come from election by the people or by Parliament. That would encourage people to expect the Governor to act in a way that was directly and politically responsive to public opinion: and tempt the Governor to do so. It would build pressure on the Governor to depart from the clear constitutional duty of faithfully acting on advice to implement Ministers’ decisions and of keeping clear of politics. A Governor now has no mandate and no power base. A new Governor is chosen by the Premier. In some States, as in Western Australia, the choice is confirmed by Cabinet: in others it is the Premier’s choice alone. The Premier advises the Queen to appoint the person: she is bound to do so and does.
The method of dismissal is even more important because it provides the penalty that makes conventions bind the Governor. A convention is not a law that can be enforced by a court. It is a constitutional custom which has so universally been followed and expected to be followed that it is clearly recognised that it should be followed, and which is backed by so effective a penalty if it is not followed, that it is binding in practice though not in law. The convention on which our democracy hinges is the basic constitutional convention that binds the Governor to exercise powers only and always as Ministers advise. It ensures that the elected Ministers’ decisions are put into operation. Another important convention binds the Governor not to enter into political issues in what he or she says. That prevents the Governor from competing with the Government in trying to influence the community on political issues.
When the Premier has approached a person who has agreed to be Governor, they reach an informal and unenforceable arrangement on the period of service, which is usually five years. The Premier when announcing the new Governor usually mentions the period that has been arranged. If not, the media inquire, are told and report it because the public are interested. The Governor is appointed at pleasure which means that if the Premier advises the Queen to dismiss the Governor she would be bound to do so within a week or two. The Governor has no legal security to serve for any particular period but has a strong political security. The community regard the Governor as belonging to them not to the Premier. If a Premier brought about the dismissal of a Governor who was complying with the conventions and meeting the standards the community expected, there would be a massive adverse community reaction against the Premier. All Governors know that if they comply with the conventions and meet the standards they will serve for the arranged period. But they also know that if they failed to follow either of the conventions I have mentioned, the community support for the Governor would go, the Premier would advise the Queen to dismiss and they would suffer the practical penalty of being dismissed from the high office with high loss of reputation.
The absence of any mandate, and the readily available penalty of prompt dismissal for failing to follow the conventions has produced such a workable balance that no-one in Australia has been dismissed from the office of Governor-General or Governor for over eighty years. In thinking of ways we could become a republic, with the Commonwealth and each of the State systems having Australians as their own formal and operative head of state, the issues for the Commonwealth and State systems are practically the same. To preserve the workable democratic character of our system, a head of state should not have any mandate which would encourage political rivalry with the elected Government and must firmly be bound to exercise the great powers of head of state as advised by Ministers of the Government.
Australia could simply and safely change to a republic by the model which I advance. That would continue the offices of Governor-General and Governor under the same names, make them the formal as well as the operative heads of state of their systems and transfer the Queen’s remaining powers to them. The Queen’s only active duty, appointing or dismissing the Governor-General and Governors, would in each system be performed in exactly the same way, on the advice of the Prime Minister or Premier, by its Constitutional Council of three experienced Australians automatically designated by constitutional formula. Because appointment and dismissal and the operation of the system would be the same as now, the practical penalties provided by the system’s operation would be unchanged and all the conventions would remain just as binding in the republic as they are in the present system. Governors-General and Governors would continue to operate as they have for a century.
This is not the occasion to do more than draw attention to the fact that the model moved by Mr Turnbull at the Constitutional Convention, which received most votes and will go to referendum in 1999, would give a President a strong mandate from having been short-listed from community nominations by a committee representing the community, chosen by the political parties on both sides of Parliament and elected by virtually the whole of Parliament. It provides for prompt dismissal but does so in a way likely to paralyse the President from exercising the protective mechanism of the reserve powers to prevent the democratic system slipping into chaos in a constitutional crisis. Under an exception to the basic constitutional convention, in exceptional circumstances the head of state can exercise a reserve power independently of ministerial advice, to refer an otherwise insoluble constitutional blockage to Parliament or electorate for resolution. Both models at the Convention for a popularly elected President would confer on the President the enormous mandate of the only office-holder directly elected by the whole electorate. Because prompt dismissal of the President would not in practice be available under either of the popular election models, the conventions that give us our workable democracy would cease to bind and all that is proposed to put in their place is a legal obligation to act as Ministers advise, which would be largely ineffectual and undesirable.
My approach is that the republic issue should be decided at the one time for the whole federation so that all systems would become republics together or all remain monarchies. The referendum in 1999 will be only on the Commonwealth system. That could result in the ludicrous position that the Commonwealth and some States become republics while some States remain monarchies. That would produce great strains upon our federation.
Courts
A democracy gives its law an exceptionally important function, far more than other systems of government. As part of its checks and balances, a democracy, by its law, distributes different powers to the separate parts of the system. It is the law which keeps them all within their allocated limits of power. The law prevails over those in all parts of the system of government, all organisations and all people. That is described as the rule of law. No Government, organisation or person can put anyone in prison or detention, put them out of their homes or take their property except in accordance with the law. Courts exercise powers to protect people against that being done.
Citizens will not accept that dominant influence of the law and will not have confidence in their democracy which gives it that influence, unless they have confidence in the law. They will only have that confidence if they have confidence in the courts and judges who apply and enforce the law. Confidence in the courts and judges depends on the community seeing that the judges decide their cases fairly and impartially. Laws require judges to act fairly, such as hearing both sides. Because their impartiality would otherwise be open to doubt, judges must work in a setting where they are obviously independent, in the sense of being free of pressures which could influence them to reach a decision in a case other than that which their intellect and conscience indicate to them after a genuine assessment of the evidence and an honest application of the law.
It is in order to preserve this judicial independence that judges are appointed, not elected. The Attorney-General chooses a legally qualified person considered suitable for the judicial office and, if the person agrees, recommends the appointment to Cabinet. If Cabinet approves, Ministers advise the Governor to make the appointment. The early American settlers made the mistake of thinking that it would be good for democracy to have elected judges and the judges in most State courts are still elected. That is most undesirable because it places great pressure on a judge to depart from deciding a case as intellect and conscience indicate and instead to decide it in accordance with policies stated in the election campaign, or so as to secure re-election. By the time of federation as the United States, the lesson had been learnt and all federal judges are appointed.
To keep judges free from pressures that could distort their decisions, they are appointed for a full working life, usually until becoming 70, and it is difficult to dismiss them. The Government has an interest in many court cases and if it could readily dismiss them, or if they were appointed for a period and needed Government approval for reappointment, the Government could place great pressure on a judge to reach a decision favourable to it by threatening that an unfavourable decision would bring loss of career. A judge can be dismissed only if each House of Parliament requests it and the Governor is advised by a Minister to do so. Traditionally the Houses of Parliament only make that request if satisfied that there has been serious misbehaviour which would deprive the community of confidence in the person as a judge or that the person is physically or mentally incapacitated from performing the duties of a judge. In Australia during the last fifty years only one judge has been dismissed.
The different dismissal procedures necessary for a Governor and a judge demonstrate the very different safeguards that ensure that those who serve in the basic parts of our constitutional system perform their different duties in the different ways that strengthen the democratic character of the system. The Governor is liable to prompt dismissal to ensure compliance with the conventions on which our democracy depends. Judges can be dismissed only with difficulty, to ensure their obvious impartiality, so crucial to confidence in our democracy.
The proper performance of the work of the courts builds confidence in the democracy. People know they can receive impartial justice. Disputes are resolved according to law, not by force.
Criminal court juries reinforce the democratic safeguards against political oppression. During this century, in a number of countries where serious criminal charges are tried by a judge alone, oppressive Governments have appointed biased persons as judges, who have imprisoned the Government’s opponents on trumped up charges supported by manufactured evidence. That could not be done here because a jury of Australians chosen at random would not convict in those circumstances.
Challenges
Having identified some of the mechanisms of our constitutional system which preserve the democratic character of government, what will be the threats to them in the immediate future and later years? What factors will operate to reduce people’s confidence in their community and democracy and to undermine their respect and concern for others? How are those challenges to be met?
It is very difficult to develop democracy but very easy to lose it. Each generation faces challenges to its democracy which have something in common with earlier challenges but have unique new threats as well. Democracy survives only if each generation has the foresight, energy and courage to repel the threats and fashion the system to suit the times.
The challenges to the rising generation will come from living at a time of accelerating industrial and social revolution and coping with the consequences of the democracies, with substantially market economies, having won the cold war against communist systems with command economies. That victory was won against systems that were mostly tyrannies, but the years of contest and the ultimate triumph have left market philosophies and market organisations in a predominant position throughout the world in areas beyond economics.
In a system such as ours, which depends on everyone fulfilling their responsibility to the democracy, at least to the extent of voting, it is crucial that they receive an education that fits them to do so. Those responsible for education have treated students as customers and to a large extent let them learn what attracted them. The Civics Expert Group reported in 1994 that for thirty years or so schools had not taught civics or any subject upon our system of government. How can people have confidence in our system of democracy if they do not know what it is? Without knowledge of the system how can they be aware of its essential safeguards that must be preserved? The teaching of history with its lessons of ways in which democracy has been undermined, has also been neglected.
All Governments and most educational systems have now moved to teach civics but there is a great shortage of teachers with the knowledge to do so. While there are informed and mature teachers who teach civics in a balanced way, others lack a knowledge of the subject and are tempted to take the easy way and attract student attention by focusing only on criticisms of the system. The shallowness of the republic debate and the little attention given to maintaining the strengths and safeguards of our democracy in a republic reflect the general lack of knowledge of our system.
The responsibilities of the rising generation will be fulfilled within the all-embracing environment of the mass media. A modern democracy cannot survive without the mass media to provide information about the way it works and to inform people of what occurs. The important issue is how democracy will counter the inherent tendency of the mass media to reduce confidence in the democratic system, its institutions and those who operate them. To survive in their competitive environment those running the media must attract viewers, listeners and readers. They understand human nature and know that what attracts us is that which shocks, alarms and entertains. This leads to a concentration on what is wrong with the democracy, the institutions and those operating them and little mention of their strengths. They tend to be portrayed as objects of ridicule. The constant emphasis on their weaknesses develops a public impression that they are not worthy of confidence. It would be just as undesirable to be informed only of their strengths. To make a reliable assessment of their democracy citizens need a balanced view of strengths and weaknesses. In making that assessment the comparison is not with a theoretical system existing in Utopia and operated by angels. The comparison is to be made with actual systems and institutions existing in the real world and operated by fallible humans. During my lifetime I have seen a great reduction in the respect for Ministers, Members of Parliament and Parliaments, and for judges and courts. In my observation the people in those positions today are of much the same quality, with similar strengths, human weaknesses and standards of operation to those who drew much higher respect in earlier years.
A democracy is a sophisticated form of civilisation. As Kenneth Clark said, ‘It is lack of confidence, more than anything else, that kills a civilisation. We can destroy ourselves by cynicism and disillusion, just as effectively as by bombs.’
Ethical attitudes produce respect and concern for others. Who will teach those attitudes in the coming years? Within my lifetime they were taught by ethics-based religions relying on centuries of thought, parents and teachers. Those religions have lost the greater part of their influence. Their influence and much of the parents’ has gone to the media. The media did not ask for the influence and does not see itself as a teacher of ethics. Advertisements emphasise concern for oneself. Many of the role models who shock and entertain do not exude a spirit of concern for others. Is there anyone who can teach ethics except the teachers? As so much depends on the teachers, should they be paid according to their importance to democracy?
Throughout the democracies, government is shrinking and doing much less for people than it once did. That contributes to its unpopularity. Much of its power and influence is passing to global business organisations. Most media organisations are integrated with such an organisation. The dominant impulse of a business organisation, though not the only one, is to win against competitors. The corrupting influence of power, of which Lord Acton spoke, accompanies economic power as much as political. The people will need their Governments, of whatever size, to look after their interests and regulate the activities of powerful economic organisations. Preserving the democratic character of government will remain just as important as now, so that the community will retain control and Governments will act in the interest of their people.
Sir Ronald Wilson
It is an honour to present this lecture, named after Sir Ronald Wilson, a great Australian. In each of the areas I have described as essential components of a good democracy his lasting contribution has been great. His work as barrister, Solicitor-General, Justice of the High Court and within his Church reinforced our constitutional system and increased confidence in our democracy and community. As Chairman of the Human Rights and Equal Opportunities Commission he developed community respect and concern for others and their rights and interests. As leader of the Stolen Children Inquiry he emphasised that citizens of a democracy have a responsibility to have a respect and concern for others of all races and racial backgrounds.