Unrepresentative swill (Part 2)

To my mind, in my short 17 years in Australia, the scariest thing I ever heard uttered by a major political leader was Keating's castigation of the Senate as a bunch of "unrepresentative swill". It was the upfront honestly uttered frustration that many other leaders have only hinted at. At its core it was the curse and scorn heaped by a hobbled monarch. It was symptomatic of the rot of corruption that all in power must at some point feel, if there is any truth to the observation that "power tends to corrupt". Mr Howard has shown similar frustrations, but he is both too much the political genius and ingenuous to say so in so many words. His Gollum-like cooing over his control of the Senate was not hubris; it was crowd control.

You see, once you're Prime Minister of Australia, and particularly if you have the usual control of your party and the unusual control of the Senate, there is not a lot of institutional checks on the balance of your power.

The traditional rough description of governmental checks and balances is the three legged stool concept consisiting of a tripartite arrangement of shared powers and responsibilities composed of the executive, legislative and judiciary. And typically you find ancilliary checks and balances within each of these parts to further ameliorate the tendency of power to concentrate and aggrandise.

I think the most classical embodiment of this system is the US system. (Hold on, I might think it is the best system, but I'm not saying that here. Just consider the framework.) The executive is the President, elected by the people, who has administrative control over the government. The President does not make law; does not declare it, vote for it or interpret it. While he has undoubted huge influence over it in the way it is administered or not, he cannot have any legislative authority to make law even if Congress were to try to delegate the power to him. This prohibition extends so far that executive departments (Ministries here) cannot make regulatory law that extends beyond the scope of the enacted law, and there are plenty of cases where this demarcation has been upheld by the courts. The power to make law lies independently with the Congress (which, being a federated republic of states, is bi-cameral with a proportionally popularly elected House and a Senate made up of equal representation from the various States).

History has shown that even when the President is from the same party as the majority of either the House or Senate, or both, the independence of the legislature is carefully and jeolously guarded by its members, often in contradiction to party loyalty to the President. There is the ancillary check that even within parties, there is a tradition of deferring to constituency over party, resulting in frequent cross-party line voting.

Compare that to the Australian system. The Prime Minister, as executive, controls the administration of law and, as leader of the governing party in Parliament, controls the making of law. This is so much concentration that nobody is surprised when a government "proclaims" law by press release to be backed up by written enactment later. My first introduction to this was when Keating, as Treasurer, issued a press release over night restricting foreign ownership of residential property during the 1980's property boom. No law was ever enacted to my knowledge; my enquiries to the then FIRB simply referred me to the press release!

Add to the lack of any checks and balances between the executive and the legislative branches the tradition of strict party control of members, and the government of the day has a pretty free hand to impose its whim. The only institutional obstacle in the way of a government is the Senate.

By definition, the executive controls the House, but often fails to muster the votes to control the Senate. In that case, there is a real contest for the making of laws. Real contests mean open debate, airing and consideration of minority opinions and interests, and the survival of more consensually agreeable law and the failure of more divisive law. In those times when the government does not control the Senate, then, there is a modicum of checks and balances that impede the concentration of authority, control and power. I believe the Westminster system also contains a check and balance that the US system doesn't hold up as an ideal, that of strict Ministerial responsibility. But I leave it to you to decide if that is truly alive and well and compatible with the ducking and weaving of the governments we have seen of late.

Since democracy is always a system of government by majority rule within the context of the consent of the minority, this messier rubric of checks and balances leads to a more robust democratic state. It's untidy, time consuming, frustrating, expensive and humbling, but it is more democratic than an autocratic system lacking in the checks and balances. We don't have to have a democracy. We can have autocracy if that is what we want or if that is what we allow to happen by default.

A word also ought to be said about the role the judiciary plays as a check and balance. The judiciary does not, in the first or last instance, make law. The legislature makes law, the executive enacts and admisters it, and the judiciary is there to enforce it, which involves a degree of interpreting it if is in need of clarity. Moreover, in a constitutional democracy, it is the final authority on the interpretation and application of constitutional law, not the legislature or the executive.

Have you ever read any of the laws of the land? Have you ever seen one that was imminently clear and concise? Some rare ones are, but more are obtuse if not internally inconsistent. This act of bringing meaning and interpretation and application of law to particular facts gives the courts an appearance of declaring law, but that is not what they are doing. Otherwise, they could just sit in the parliamentary library and declare away all day.

It is always within the power and right of the legislature to write clear and concise law to narrow the scope of judicial review. It is also always within the power and right of legislature to rewrite laws to correct perceived misinterpretation or misapplication of law. Those people who decry "judicial activism" fail to mention this, and I'll get to one reason shortly.

But first I want to mention "judicial activism" in the context of checks and balances. If a court never found that a government had exceeded its powers, if it always rubber-stamped the government's interpretation or application of law, it could never be accused of judicial activism. Neither would it fulfill its role as an independent review. Independent review is an essential part of checks and balances. Without it, the government sits on its own one legged stool.

And where a government controls the executive, the legislative and controls the Senate, the court stands as the last line of defense against potential tyranny. This is not a strident criticism of the government; I do not accuse Mr Howard of being a tyrant. It simply is meant to underscore that unchecked governmental powers do tend to lead to abuse, and that is a form of tyranny. A "strict constructionism" court does not constitute the robust check and balance that a more scrupulous court provides, but that may not be so necessary where other more democratic checks and balances prevail.

The usual fodder for whether a court is "interventionalist" or involved in "making law" is the constitution and cases based on it, because, as noted, the judiciary has the final say on matters constitutional. It is always a power of government to try to change the constitution, just as it may change any other law, but such changes involve political considerations that usually put it in the "too hard" basket. But it is not beyond its power. The government has the greater power if it can marshall its strength.

And the particulary contentious constitutional issues arise in the usual subjects found in bills of rights. Bills of rights give tend to protect individual rights from government interference, involving subjects such as freedom of or from religion, speech, association, due process, etc. In Australia, these are not subjects devoid of some form of protection now. But, the current protections are laws, not constitutional protections, and the government has much more latitude to alter the nature and extent of such protections than would be the case if enshrined in the constitution where, barring constitutional amendment, the constitution has the first say and the court has the last say.

All of which is a lead in to a discussion of an opinion piece in today's SMH, entitled "Let's draw a line through a bill of rights." (http://www.smh.com.au/news/opinion/lets-draw-a-line-through-a-bill-of-rights/2005/09/25/1127586742586.html.) This piece is not so much about rights that individuals should have or not have as about checks and balances. And bear in mind that the Australian system, with a traditionally "laid back" (deferential) judiciary that often accepts form over substance, has relatively few checks and balances, at least as I've described it, anyway. If there are other checks and balances of significant order, I'm not aware of them, but would gladly acknowledge because I feel the more the merrier (to a point, a point that is far away from present circumstances).

The author's argument is that these personal rights are "messy" and the courts should not have any checks and balances over the government when it comes to the details of these rights. Let him say it:

"The case against bills of rights ... at core it is that these instruments ... transfer too much power to unelected judges." Why would that be? Because, as mentioned above, as such rights become a constitutional matter, the constitution has the first say and the courts have the last say over such matters, barring a constitutional amendment.

And why is that a bad thing? "Bills of rights offer us all an emotionally attractive statement of entitlements and protections in vague, very broad terms.... The problem, however, is that the effects of bills of rights are not felt up in these Olympian heights. They are felt down in the quagmire of detail .... Tough calls have to be made about where to draw lines."

His argument is that politicians are better equiped and prepared to make the tough calls and judges are not. Every day politicians weave and duck the tough calls. Every day politicians write laws that are vague, broad and require an ultimate judgment by a court. Every day politicians hand off the tough decisions to committees, study groups, their underlings, the courts, anyone but their own accountable selfs.

Take the case of negligence, since this has been in the political ball court for a while. Can politicians write laws that tell us if this particular person entering this particular beach under this particular set of circumstance is entitled to recover for this particular damage in this particular amount. No. But judges do that every day.

Take family law. Do politicians write laws making the tough calls, drawing the difficult lines about how this man and this woman will divide these particular assests and share the responsibility for their children in this particular way? Again, no, of course not. But judges do that every day.

Take terrorism laws. Do politicians write laws that tell us what "incite to violence" means, or do they leave that up to judges? Do politicians have trouble defining why someone might be a suspect, and is that the reason they want no interference if they want to "detain" someone for days on end? Do politicians who cannot even articulate what makes a person a suspect have any greater moral compass than a judge? Can politicians define when it is "malicious" to leave an unattended bag at an airport subjecting you to fine or imprisonment? Would you want that decision determined by politicians or a judge?

Do you want to leave it to politicians to determine for themselves if they have "credible evidence" of babies overboard, weapons of mass destruction, incitement to violence or an imminent terror event?

The argument against a bill of rights, and by extension, using the courts as a check and balance against executive power, is that judges cannot make moral judgments but politicians can: "What makes a bill of rights, and its transfer of power to judges, appear attractive is the unspoken assumption that the moral lines drawn by judges are somehow always the right lines...."

This is truly a fatuous statement; judges make, as best they can a legal judgment. Cutting judges out of that process raises the unspoken assumption that our politicians will be the ones to draw a moral line, the "right" moral line, rather than the politically expedient one, because they have such a great track record in drawing the right moral lines rather than politically expedient ones.

If I had my druthers, I would prefer a judgment based on reasoned legal lines that may be influenced by a judge's moral compass than one based along expedient or influence-peddled political lines that may be influenced by a politician's moral compass. What about you? Would you prefer your fate to be decided with the wisdom of a Solomon or the crowd-pandering of a Pilate?

As the Scott Parkin case showed us, the government doesn't have to explain itself to us. It doesn't have to give reasons. As the weapons of mass destruction arguments bear out, governments can play with the information that they officially "rely" on to make a decision. As the Rau and Solon cases demonstrate, governments do not have to bear responsibility for the tough lines wrongly drawn.

But for judges, their decisions must be legally reasoned and transparent and not driven by some philosophical dogma or ideological end. Even the author of that opinion piece acknowledged: "Victory does not go to the judge writing the most moving judgement or the one with the most references to moral philosophy." And thank our lucky country for that.