Australians might well be taken aback to discover how feebly many of the processes that constitute a robust democratic system are formally protected in this country. What safeguards them are conventions or informal norms rather than constitutional provisions or laws.
This means we can’t rely on institutions coming in on our behalf and imposing sanctions when conventions are broken. We have to trust the robustness of our political culture; we must trust that citizens and people in office will insist democratic conventions are observed and that those who flaunt them pay a reputational, professional or electoral price.
One such basic democratic convention is respect for the separation of powers. This traditionally refers to the executive, the parliament and the judiciary. Another is respect for the independence of statutory officers, such as ombudsmen and human rights commissioners.
In the beginning
To appreciate why respecting the independent operation of these different arms of democratic government is so important, let’s take a look at one of the classic texts on modern democratic government, the Federalist Papers, written by the founders of the US political system.
Having an all-too-rare and precious opportunity to actually construct a political system embodying the principles they held dear, the federalists identified institutional designs to realise freedom and equality.
They decided to allocate different types of powers to different branches of government. This did this to ensure one part of government – or one small group – couldn't gain a monopoly over political power. The move had the added advantage of creating parallel lines of review or appeal, so that no one office would hold the trump card.
Democratic political systems establish statutory authorities for a similar reason. It’s a way of ensuring that other parts of government administer laws and carry out their duties in a way that respects higher-order principles, such as freedom of information, non-corruption and fundamental human rights.
Tethered camels
Even though our political representatives are mandated to represent our interests and respect the law, we put these statutory officers in place because we understand there’s always a risk that expediency, bias or self-interest may prevent politicians observing their duties. Trust in Allah, as the Sufi saying goes, but tether your camel.
But unlike the judiciary, whose lines of authority are formally separated from those of the legislature, statutory officers are appointed by and ultimately answerable to the ministers under whose portfolio they sit.
The attorney-general, for instance, selects and appoints the human rights commissioners and is ultimately responsible for acting on, or ignoring, their recommendations. Respecting their independence, then, is a matter of political civility or conventional forbearance, rather than a legal requirement.
I say forbearance because, remember, those officers are there to point out where their political bosses have fallen short and to provide advice on how they might do better. It’s unsurprising that such advice isn't always appreciated.
Avoiding enfeeblement
Nevertheless, we expect our political representatives to respect the advice they get from statutory officers. Not because they enjoy having their failures made public, but because we hope they’re committed to the integrity of our democratic political system, which can only operate when such checks are in place.
This is why the former prime minister’s and attorney-general’s attacks on the president of the Australian Human Rights Commission this year, over her report on children in immigration detention, were so troubling.
The substantive issues were alarming and provoked strongly held and deeply divergent views on how Australia ought to respond to asylum seekers. But the rhetorical attacks went beyond political differences.
As the highest political officers in our country, it’s incumbent on the prime minister and ministers not only to respect the independence of statutory authorities, but to model such respect. Doing so demonstrates the importance of upholding the democratic political culture to everyone in the country. When their actions and words model an ethos where political differences are more important than democratic conventions, we’re all enfeebled.
The heart of democracy
Like virtually every other contemporary nation-state, Australia also holds itself to account by signing up to international human rights treaties. We thereby promise the other parties to those conventions that we'll respect certain fundamental rights.
When we do so, we also agree that independent monitors will periodically check up on how well we’re observing our commitments. These monitors aren't some sort of international government that lords it over national governments. Rather, they are expert authorities we collectively establish to strengthen the meaning of our commitments.
But when then-prime minister Tony Abbott responded to negative comments concerning our treatment of asylum seekers from the United Nations Special Rapporteur on Torture by saying that Australians were “sick of being lectured to by the United Nations”, he acted as though some interloper had intruded into the inner sanctum of our national affairs.
Abbott wasn't merely expressing a difference in political opinion; he demonstrated his disrespect for the convention of honouring our international agreements and respecting the people we put in place to ensure we do so. When countries that pride themselves on their democratic credentials flinch at being called to account, they signal to others how disposable such principles actually are.
However much we bootstrap our democracy with laws and constitutional provisions, its lifeblood will always be our respect for a democratic culture and the informal conventions that breathe life into it.
This might make the whole idea of democracy seem intolerably fragile and easy to topple. But perhaps democracy relies on active assent rather than fear of sanction because it’s the only form of security worthy of a system that claims the principle of freedom, and of citizens who claim the right to govern ourselves.
This article is republished under creative commons licence.
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