REASON rarely prevails when a public debate generates more heat than light. The bill of rights debate is a case in point, with a prominent critic like Paul Kelly even claiming that the proposal threatens the very fabric of our democracy. Such exaggerated language serves no purpose other than a pre-emptive strike; that is, to prevent a reasonable discussion in which the strengths and weaknesses of a proposal can be weighed. Some negative reactions to the public consultation, to be chaired by the Jesuit priest Father Frank Brennan, about a possible federal bill of rights misrepresent how Australia’s parliamentary democracy actually works in practice. The critics are deliberately hyping up their language in order to derail debate before it even begins. When we begin a public discussion about possible change to our system we should first get our understanding of the status quo right. Yet the critics in this case paint a picture of parliamentary democracy that is strangely unrealistic. Parliament is not sovereign in Australia, as the critics claim. Furthermore, parliament commonly gives responsibilities to other bodies where it considers them better able to carry them out. It is executive government, not parliament, which rules us. Parliament per se rarely has a say these days. Policy initiatives in our system of government, indeed in just about any system, are frequently driven from the top rather than by a popular groundswell. These realities must be recognised before a balanced discussion about a bill of rights can take place. Framing - that is, setting the terms of debate - is crucial in politics. The bill of rights debate is often framed by its critics as being about a sovereign, elected parliament protecting the common law tradition versus the non-elected lawyer-dominated courts advocating a bill of rights. If it is framed in that way it is a no contest. The debate is as good as over. The sovereign, elected parliament must win every time because the debate becomes a struggle between good and evil. But our system is not about parliament versus the courts. It is about parliament and the courts working together in tandem. For a start, let’s look at the mistaken idea that the Australian parliament is sovereign. Parliament is responsible to the written constitution and works within its constraints. The 1901 Commonwealth of Australia Constitution Act sets out the powers of the Commonwealth and state parliaments, including the division of powers between them. The umpire in matters of disagreement as to where power lies is the High Court. So in fact the High Court judges, all of whom are lawyers, regularly decide cases in a way that interprets the constitution within which governments and parliaments operate. The constitution and the High Court together define what can and can’t be done by governments. Furthermore, our system commonly hands power to make policy from governments and parliaments to non-elected bodies. The Commonwealth government, for instance, happily gives the power to set interest rates to the Reserve Bank because it recognises its own limitations and values an expert body’s non-partisan deliberations, though the government will often try to have it both ways by influencing what the bank chooses to do. The same is true of other statutory bodies, such as the Australian Broadcasting Corporation. We have many commissions that act in a space within the political system that has been created by acts of parliament. Many social, economic and political matters in our system are taken out of the hands of parliament by mutual agreement. Secondly, executive government dominates our parliaments. If there is to be a conflict that should frame the bill of rights debate it is realistically between executive government and the courts. Such a different frame would change markedly many people’s preconceptions about the debate because the concept of executive government is far less popular with the community than is an idealised version of parliament. Executive government, that is cabinet government, is less popular because it, rather than parliament, is responsible for the state of affairs in our society. That includes the obvious blemishes in the record of the protection of human rights in Australia. Executive government means political party government in Australia. Like many executive governments around the world, Australian governments are usually unaccountable to their parliaments. They control the numbers through party discipline and exercise them like a steamroller to squash any opposition, no matter what the merit in the opposition case. Remember that many outspoken opponents of a bill of rights, like former NSW premier Bob Carr and current NSW attorney-general John Hatzistergos, are the voice of executive government, not the voice of parliament. Their record in executive government has rarely shown any great concern for the rights of their parliamentary opponents or for the sovereignty of parliament. Finally, it is hypocritical for any members of elite professions like journalism, government and the law, to criticise emerging political developments because they appear not to be the result of a so-called democratic groundswell. Such arguments are usually employed by one set of elites attempting to quash the views of another set of elites. This is what is happening in this case. The kettle is calling the pot black. Our system of government develops new policies best when they flow from a mix between so-called elites, like public servants, academics and business leaders, and the general public. It is an iterative process of initiative and reaction overseen by the government(s) of the day. Our best protection as citizens comes from an interaction between various institutions, not by setting up a false dichotomy like parliament versus the courts.
John Warhurst is an adjunct professor of political science in the Faculty of Arts at the Australian National University. This article first appeared in the Canberra Times.