The ‘rule of law’ and reform of the Australian federal system

The author of the article suggests that the rule of law and federalism are no longer operating in Australia. As a result of three decades of Australian governments enthusiastically embracing neo-liberal capitalist policies, power is now concentrated at the central level. Government captured by the few: the two major parties in collusion with big business nationally and internationally. With no indication from the Australian people that they seek the radical systemic reforms required to reinstate federalism and reclaim a fairer and more just society, only small steps towards reform appear realistic. The revision of the Preamble to the Constitution as a precursor to further constitutional change and the reassertion of state powers supporting of local power are suggested as first steps.

Power centralised to Commonwealth means that Australia is no longer an authentic federation

There is general consensus among scholars, political commentators and others that over time a centralisation of power has occurred at the Commonwealth level in Australia [Bell, 2006 p171, Brown,2006 p12, Emy, 1997p387, Peters, 2006,p57, Twomey & Withers, 2007p.4, Wiltshire,.2006,p189]. Arguably, Australia is no longer an authentic federation. Federal structures legitimated in the Australian Constitution Act [ACA] (usually known simply as ‘The Australian Constitution’) are retained, established ‘norms’ of intergovernmental relations continue but power is firmly in the hands of the Commonwealth government and associated elites. I will argue below the Australian system of government thereby also fails to adhere to the principles of the rule of law and that Australian governments are failing to perform the primary function of government: to protect and secure the welfare of the people residing within their jurisdiction.

Power and authority

To have the power to govern is not the same as to hold legitimate authority to do so. In order to examine the ways in which the present system of government in Australia violates the principles of the rule of law, these principles will first be briefly described. How the Australian system of government violates these principles is then outlined. And, finally, strategies are suggested as preliminary approaches needed to break down the barriers to reform. If and how these violations can be corrected is conditional upon the successful removal of these barriers, with the Australian society finding a set of shared principles upon which to base a revised theory of government.

States and Governments

The concept of ‘State ’[1] is indispensable in the understanding of our current political world. States are the principal actors on the international stage and by far the most significant actors on their own territory”. [Skinner, 2011] It is also central to any understanding of the rule of law. Government is ‘state’-based. In mainstream discourse, government and state are often used interchangeably, as synonyms. They are not.

“Government is the means through which the authority of the State is brought into operation” [Heywood 2000, p40]. Hence ‘government’ is inseparable from the State: it cannot exist without a ‘state’.

According to the fictional theory of state as outlined by Skinner, “the conduct of government is morally acceptable if and only if it basically serves to protect the welfare and safety of the person of the state, that is to say our person – the fictional person – we are considered together as the person of the state. …. The duty of our rulers”, the government, “is to promote the good of that person”. This raises “the spectre of the common good… over and against theories of individual rights.”

The State, “the fictional person endures beyond the lifetime of any of us present” has, as originally posited by Hobbes, an artificial eternity of life. [Skinner, 2011] [Hobbes,1651]. This theory of the State places the common good to the fore and provides a specific meaning to the role of the demos in the state, a democratic state. The fictional person – every individual as one is the raison d’état - constitutes the state. According to the fictional theory of state, the legitimate authority to govern is to assure the well-being and security of the state’s ‘person’.

Pogge [1991] and [Held 1996] in outlining their differing views on cosmopolitanism share with many other theorists the view that the primary political unit is the individual and therefore the criterion for legitimate authority to govern lies in the observance of human rights. Is the State the collective in the form of a fictional person or a multitude of individuals? How can authority be vested in either the collective in the form of the almost eternal fictional person or the multitude of individuals? Power vested in the people as a whole is the sine qua non of democracy.

Rule of law and rule by law

Aristotle concludes government is better exercised through the rule of law than by the ‘rule of men’ “… it is preferable that government be by or in accordance with law, since (i) laws are products of reason(s) not passion(s}, (ii) the sovereignty of a ruler or assembly tends to tyranny [i.e. rule in interests of a section, not common good, (iii) equality demands that each mature person have some share in governing, and (iv) rotation of offices and office-holders is desirable and can hardly be managed without regal regulation.” [Finnis, J. 2010 paraphrasing Aristotle’s Politics III:15]

Not only is law based on reason, but it is based on reasoning applied and tested by many people to the accumulated experience of a society of people over time: hopefully accumulated wisdom.

Rule by law as protection against tyranny implies ruling in the common good, equality and political liberty, limitations on length of office, if not specifically representation and regulation: all elements of democratic liberal theory.
The ‘rule of law’ is then when primary and supreme authority of the state is vested in the law [Finnis, J. 2011]. The rule of law is independent of government[s]; it applies equally to the rulers and the ruled. It must be “administered fairly, rationally, predictably, consistently and impartially. Improper external influences, including inducements and pressures, are inconsistent with each of these objectives.” [Spiegelman2003]

The rule of law is different from rule by law. The rule of law “is not merely the opposite of the lack of law, of anarchy…. [it] is not the systematic and constant application of laws – that is rule by law” [Stephens1999]. It is based on reason, developing shared understanding over time: creating an accepted wisdom to protect the society/State/individuals as a whole. It cannot be imposed, requires nurturing and commands respect: the lore of binding rules.

As a self-proclaimed liberal democratic nation with a federal system of government, recent and contemporary governments in Australia are in flagrant violation of many, if not most of the principles inherent in those claims. The rule of law as outlined above is the overarching principle of good democratic government and it is not operating. In the Australian system of government, it is strictly rule by law as opposed to democratic rule of law. The two major parties, Labor and the Non-Labor coalitions have effectively captured the executive and legislature, the parliament, at both Commonwealth and state levels. Competition for executive power, increasingly adversarial nature of daily politics inside and outside of parliament, masks the fact that both ‘sides’ of politics share an interest in maintaining the level of power now acquired at the central level and face common challenges in setting agenda to govern when much of the decision making power over much of what was previously confined to the nation-states is increasingly in the hands of international ‘forces’ and they have lost the capacity to engage with and gain authentically the support of the public.

Power ever more distant from the people: Central government saps states of power

As stated in the introduction, there is little or no discernible authentic division of power between the Commonwealth and the state governments: power is firmly in the hands of the Commonwealth government in direct violation of this defining principle of federation. Federalism is a form of democratic government: it is premised on the sharing of power. The federal division of powers is one of the primary measures to prevent the concentration of power in the hands of the few. This polarisation of power in the Australian government is inextricably linked to a much broader upward spiral of power and wealth that is occurring globally [Pogge,T 2011]

Inaccessible justice system

The inevitable consequence of the concentration of the power and wealth in the hands of the few is the disempowerment and impoverishment of the many: this of itself is a form of tyranny.

“The fundamental rational of liberal democracy is to guarantee its citizens political liberty and equality of legal status… Both together entail measures to ensure all citizens have effective access to, and fair and humane treatment in and by the courts [Emy 1997 p. 393] This is put forward as an argument to advance the case of a limited bill of rights.

Neither of these ‘rights’ are guaranteed nor protected by the Constitution or by legislation. In the reality of the average wage earner, access to the justice system is severely compromised for most Australians due to the costs involved. Many in the legal profession and the courts are of the elites. While space prevents providing detailed evidence to this effect, the ex-High Court Judge Michael Kirby confirmed that access to the justice system is “the really central fault of our legal system” – “the problem really is a structural problem and if you want to do something really, you have to do something revolutionary.” It should be noted that, aside from the prohibitive costs of seeking redress in the justice system, the amount of legislation being passed by government has increased enormously over the last ten years. The amount, length and complexity of legislation contribute to a lack of understanding within the community.

Two party stranglehold on power makes change very difficult

If the above diagnosis is correct, how can these violations of the rule of law or democratic practice be corrected? “…any substantive amendment [to the Constitution] requires bipartisan agreement and the efforts by the major parties to mobilise consensual support amongst a sometime truculent electorate” [Emy, p.392] As stated above, the major parties have a shared interest in maintaining the level of power [and wealth] acquired as they are competing for the same prize. There is no incentive to diminish the power in the prize. Proposals for change to the current powers of the parliament are unlikely to be tabled in the current Commonwealth parliament. Even reforms not requiring constitutional amendment will require bipartisan agreement and are unlikely to impact or lessen the powers of the current parliament.

There is no evidence of impending popular uprising only of disaffection, even alienation. The something ‘revolutionary’ mentioned by ex-Chief Justice Kirby to render the system of justice more affordable and accessible is not so easily identified. Power and wealth once acquired are rarely relinquished without coercion or struggle. The legal profession is unlikely to accept the basic wage for their services. There are some signs of a mounting number of issues causing increased activism in some quarters but effective mechanisms of campaigning in the public domain are lacking. Mainstream media are largely controlled by powerful elites with vested interest in maintaining the status quo. The ‘social media’, while effective in reaching those with declared interests in a given subject area, are in fact not very effective in reaching an audience as diverse as the Australian electorate.

Reasons to reform the Australian government system

The main reasons to initiate reform of the Australian system of government are a moral ones: the alleviation of preventable human suffering through better government; to improve the security and well being of people residing within the jurisdiction of the Australian state; to establish the rule of law with a system of government established with the consent of the people.

Reform is required to halt and reverse the current polarisation of power and wealth that has for corollary the disempowerment and impoverishment of many. As a willing member of the Anglo-US axis of power, Australian governments are complicit in oppression caused by the phenomenon of globalisation within and beyond Australian borders.

Structural reforms required to system

The structural reforms proposed in much of the literature – the creation of new states or regions, the strengthening of local government, tax reforms to redress the vertical imbalance by the reinstatement of state fiscal powers have been unable to demonstrate how they can be achieved in reality. The number and breadth of proposals indicate that it is structural reform of the system of government, of the political system itself that is required.

Strategies and starting points in the Australian Constitution Act (ACA)

Before forming a proposal for structural reform, it is necessary to identify a strategy to break down the barriers to reform. It is also necessary to find a starting point. The Constitution - the Australian Constitution Act (ACA) - is a possible starting point for two reasons. Firstly, it is the foundation document of the consolidation of Australia as a nation-state – for better or worse – it is a shared point of reference. While it may not have been accessible to all of the people all of the time, it must become so to legitimate any significant reform. Firstly, in order to assist with understanding as to why revision/reform is required and demonstrate respect for what has gone before in order to promote respect for the process and for the revised Constitution. Secondly, because the ACA enshrines principles that should be retained, if the Australian people wish to build on what is, to create a genuinely democratic federation. The principles of the separation of powers, of federalism itself, of electoral representation and referenda, based on sound reason, all aspects of the ACA can be revised to reflect that which has been learned from experience over more than a century and with reasoned expectations of political participation from all sections of contemporary society.

Constitutional Revision – The Preamble

A proposal to revise the Constitution – a task accomplished by the Helvetic Confederation in the 1990s - would not be welcomed by the major parties, which between them, have a strong parliamentary majority. Even if a proposal of substance to bring positive reforms were put to them, it still would not succeed if it impinged in any way on their current powers. It is in their vested interest to preserve the status quo. The only proposal to which they may be amenable – with sufficient electoral pressure and underpinned by strong moral incentive – would be a revised Preamble to the Constitution.[2] While a revised preamble may initially have no immediate ramifications, a preamble that clearly and succinctly outlines the principles of government supported by a wide audience would be a stepping stone to raising the debate for a revision of the Constitution itself as one coherent document.

Practical alliance of State with Local and Regional government and institutions

On another front, those with the most to lose or who have lost already, may fight the next battle better. Local government is subject to radical change through state legislation. State governments, despite appearances, have lost fiscal and other powers. The so-called residual powers that is the Constitutional powers of the states have been neutralised through High Court judgements ruling in favour of the Commonwealth.

If the States’ politicians wish to regain and retain power within an Australian federation, they need to ally themselves with, not try to control, the regional institutes and local governments that are effectively under their regulation. Winning hearts and minds in those areas by effective institutional support and improved service provision is something valuable of itself. It is a strategy that would assist both the powerful and the less powerful: with institutional and electoral support, State politicians could also better defend their position in the federation.

Focussing the assets that one has on doing what is required as opposed to wasting effort on lobbying and negotiating for that which may not succeed, is amounts to preventing losses and consolidating one’s own power.
An indication that there is shared interest across the States to initiate a strategy of some kind for reform is the establishment of the Council for the Australian Federation (CAF) in 2006. This represented a small step to draw attention to the fate of the federation. Setting up institutions, however, is the political equivalent to the bureaucrats calling a meeting. The impact will not be felt in the wider Australian electorate. A joint state level strategy faces nonetheless the barrier of the two-party system. Will politicians be willing to break ranks within their parties to support the reinstatement of state powers in the federation? Or does it require significant electoral success by smaller parties and/or a rise in the number of Independent Members to strengthen state-based initiatives for reform?

The need for reform is urgent; the scale of reform required is significant. The barriers will be difficult to dismantle. The successful passage of any reform to the federation requires a paradigm shift reversing the impacts and repercussions of three decades of neo-liberal capitalist practices. Success will be conditional upon the political good will and cooperation of current elites [parliamentarians, federal court judges, and major capitalist lobbies, [media moguls, business, mining, professional associations, etc.] and/or the art of persuasion or tools of coercion to elicit the requisite cooperation. Legitimate positive democratic reform will require the sound understanding and the good will of many of the diverse interest groups within the Australian community to identify and validate authentically shared values and beliefs that can underpin the principles for a federation reformed or a nation refocused on democratic government and a more humane society.

NOTES

[1] When used with a capital ‘State’ refers to the national entity: the nation-state. When used with a small ‘s’ ‘state’ refers to a federated unit within the nation-state.

[2] The Australian public is said to be more likely to accept a revised Preamble rather than change the main text of the Constitution. The former is symbolic and not enforceable by law where contested concepts are present. However, the recognition of Aboriginal people and of local government is a way to lead in to the need for significant Constitutional changes by ‘amendment’ or indeed the need for a new Constitution.

BIBLIOGRAPHY

Aristotle “Politics – A treatise on Government” translated from the Greed by William Ellis. Publ by JM Dent&Sons Ltd 1928 – eBook edition

Bell, P (2006) “How Local Government Can Save Australia’s Federal System” in A.J. Brown & j. Bellamy (eds.), Federalism & regionalism in Australia 11: 171-184 Sydney, NSW: ANU Epress. Retrieved July 2012 from http://epress.anu.edu.au

Emy, H [1997] “Unfinished Business: Confirming Australia’s Constitution as an Act of Political Settlement” in Australian Journal of Political Science; 32:3,383-400

Fenna, A [2012] “Adaptation and reform in Australian Federalism”, in Tomorrow’s Federation -Reforming Australian Government, Kildea, P., Lynch, A and Williams, [eds], The Federation Press Ch.2pp. 26-42

Finnis, J [2011] “Natural Law Theories”, The Stanford Encyclopedia of Philosophy (Fall 2011 Edition) Edward N. Zalta (ed.) URL =

Galligan, D. [2011] “The Indirect Origins of Judicial Constitutions” The 2011 Annual Lecture in Law and Society, The Foundation for Law, Justice and Society, Oxford University. Podcast.

Gallop, G [2007] “The Future of Federalism” Keynote address: Institute of Public Administration Australia, Perth, Western Australia. September 2007 [Transcript] .

Gallop, G [2012] The COAG Reform Council: A View from the Inside in Tomorrow’s Federation -Reforming Australian Government, Kildea, P., Lynch, A and Williams, [eds], The Federation Press Ch.2pp. 43-52

Held, D. (2004) “Democratic Accountability and Political Effectiveness from a Cosmopolian Perspective”

Heywood, A 2000, Key Concepts in Politics, Palgrave Macmillan, New York.

Hobbes, T. 1651 “Of the several kinds of Common-Wealth by Instiution, and of the succession to the soveraigne power” in Leviathan or the Matter, Forme, & Power of a Commonwealth Ch.XIX: Project Gutenberg eBook released October 11,2009.

Kirby, M. [2011] Interview at a book launch of A J Brown’s Michael Kirby: Paradoxes and Principles at the ANU Faculty of Law, Canberra = podcast

Patapan, H. [2010] “Separation of Powers in Australia” Australian Journal of Political Science, 34:3,391-407

Pellet, A [2000] “State sovereignty and the protection of fundamental human rights: an international law perspective.” Pugwash Online – Conferences on Science and World Affairs: Occasional Papers, 1:I at www.pugwash.org/reports/re/pellet.htm

Peters, Mal [2006] “Towards a Wider Debate on Federal and Regional Governance: The Rural Dimension” in Federalism & regionalism in Australia. Brown, A.J., & Bellamy, J. (eds.). Sydney, NSW. ANU ePress. Ch 4 pp57-70 Retreived July 2012 from http://epress.anu.edu.au

Philpott, D [2010] “Sovereignty” in the Stanford Encyclopedia of Philosophy at http://plato.stanford.edu/entries/sovereignty downloaded 12 September 2012

Pogge, T. [1992] Cosmopolitanism and Sovereignty in Ethics,? 48-75

Pogge, T. [2011] “Globationsation, Inequality and the State” lecture in The State of the State lecture series, Oxford University downloaded iTunes, 7 August 2012.

Skinner, Q. [2010] “The Genealogy of the State” lecture in The State of the State lecture series, Oxford University, downloaded iTunes 7 August 2012.

Spigelman, CJ, NSW [2003] “Address at International Legal Services Advisory Council Conference” quoted at www.ruleolawaustralia.com.au/principles
accessed 12 July 2012.

Stephen, N. [1999] “1999 Annual Lawyers Lecture, St James Ethics Centre” quoted on www.ruleoflawaustralia.org.au/principles accessed 12 July 2012.

Sypnowick, C [2010] “Law and Ideology” in the Stanford Encyclopedia of Philosophy at http://plato.stanford.edu/archives/fall2010/entries/law-ideology download September 15, 2012.

Twomey, A & Withers, G. (2007) “Federalist Paper 1: Australia’s Federal Future: Delivering Growth and Prosperity. A Report or the Council or the Australia Federation” prepared at the request of the Premier of the Government of Victoria, S. Bracks.

Wiltshire, K. (2006) “Reforming Australian governance: Old states, no states or new states” in A.J. Brown & j. Bellamy (eds.), Federalism & regionalism in Australia 12: 185-200 Sydney, NSW: ANU Epress. Retrieved July 2012 from http://epress.anu.edu.au