Australia — a democracy or just another ballotocracy?
ACM National Conference , Perth 2008
Try to imagine Australia if its 1890s colonial founding fathers had incorporated into the federal constitution the following clause: No Bill passed by both Houses of the Federal Parliament shall be assented to by the Governor-General until after a referendum, if a referendum shall be duly demanded before assent declared.
A referendum may be demanded in respect of any Bill passed by both Houses of the Federal Parliament at any time within three calendar months after the passing thereof.
A referendum may be demanded by — I. One-third of the total number of members of either House of the Federal Parliament: or II. Resolution of both Houses of any two local [State] Legislatures: or III. Twenty thousand persons entitled to vote at the election of members to serve in the National Assembly [Senate and House of Representatives].
Clearly, it would have placed a huge brake upon the growth of central or Canberra power since a third of all federal members of parliament — not simply a prime minister and/or cabinet — could have triggered a nationwide referendum on any bill enacted by a majority party in Parliament.
A referendum could also have been triggered if any two state parliaments so resolved. And, last but not least, 20,000 voters could have brought on a referendum. And if any of these triggers were activated, it would stop a bill from becoming law until the referendum was held and the Australian people made the final decision democratically.
The existence of such a clause would have prevented politicians, or more correctly the handful constituting a Cabinet, from having monopoly control of the legislative process. That control would have been shared with the states and with electors.
Of course, the Australian Constitution does not include such a clause, and Cabinet does control the legislative process in Canberra, from the drafting of bills and arranging debates on them, to the final vote that turns bills into laws which all Australians must obey.
But the Constitution may well have included such a clause because the clause is not a figment of the imagination.
It was in an 1891 draft proposed by one of those intimately involved in the final draft of the constitution, the South Australian Charles Cameron Kingston.
A variation was part of Labor’s policy platform almost continuously from 1900 up until 1963. Both the draft and the policy plank have effectively disappeared from history: they rarely if ever get any mention in the history books; and most Australians, including academics, teachers and even politicians, honestly believe that the system of representative democracy that we have here is the only form of democracy that exists. The Swiss would disagree.
Unlike Australians, they are constitutionally empowered to initiate referendums at every level of government — municipal, cantonal and national — and this is in addition to their right to elect representatives every five years. Put otherwise, the Swiss have not bestowed monopoly power upon their elected representatives to make laws. Unlike Australians, they, the people, are the final arbiters of what shall or shall not be the law of their land.
True democracy versus ballotocracy
Both Australia and Switzerland are bicameral federations, so each has a lower and an upper legislative chamber. In both countries, bills may be initiated in either chamber. In Australia, however, once a bill has been passed by both houses, it goes to the Governor-General for royal assent, after which it becomes law.
In Switzerland, a bill that has been passed by both houses lies dormant for 100 days during which time 50,000 voters can trigger a referendum by signing a petition.
Voters in both countries periodically elect representatives to parliament, but the Swiss electorate’s right to call referendums means they have far more power than Australian voters. They can continuously exercise a power of veto over the legislative process through this rejective or facultative referendum process. Put another way, Swiss voters have at least double the power of voters enfranchised in polities that are without citizen-initiated referendums.
Swiss voters can determine what will or will not be the law. Australian voters must accept what their politicians decide will be the law.
But Swiss voters can also initiate changes to their national constitution, although this requires a petition with 100,000 signatures gathered over a period of not more than 18 months.
In ballotocracies such as Australia the politicians’ monopoly power over the lawmaking process, including the power to trigger amendments to the Constitution, operates unfettered by the people, the demos.
The Swiss form of democracy has been variously described as direct democracy, true democracy, or simply democracy, since it is the people, the demos, who are the ultimate arbiters of what laws they will live under.
Moreover, such direct or true democracy applies not only at the national level, but also in Switzerland’s 2,740 municipalities and 26 cantons (states). In practice, 94 per cent of all bills passed by the Swiss national parliament end up as laws without undergoing the referendum process. Of the remaining 6 per cent, about half are rejected by the people.
A key reason for those 94 per cent not being challenged — that is, not having to go to referendum — is the fact that Swiss politicians feel compelled to consult voters extensively and over long periods so as to ensure that the bills they work on will not be challenged at referendum.
During the long consultation periods, those who are likely to be affected are brought into the process of preparing the relevant bill. Being fully informed means there is less likelihood of a bill being challenged. Even so, 6 per cent must face the ultimate test, that is, the people.
By comparison, the Australian representative, or indirect form of, democracy constitutionally excludes the people from being the final adjudicators of bills, with one limited exception. And, interestingly, Switzerland was the inspiration for that exception, which applies to bills that seek to amend the national constitution. But the Australian version gives politicians the power to initiate all referendums to amend the constitution and limits the people’s power to merely voting on the politicians’ proposals, that is the power of veto, but not the power to initiate, which the Swiss have.
This legislative dominance of elected representatives over voters is what most people here call democracy but it is more correctly described as ballotocracy since voters — the demos — are excluded entirely from the legislative process. Under ballotocracy the people’s power is limited to only electing representatives.
Voters in 24 American states also have the right to initiate referendums. In some cases, this includes the right to initiate changes to the state constitution.
The impetus for initiative and referendum (I&R) in America initially came from the predominantly rural or farmer-based Populist movement of the early 1890s and its successor, the urban-based Progressive Movement of the late 1890s to late-1910s. Most of the western American states had adopted I&R by 1918. A smaller number did not for a variety of local reasons, including ongoing resistance by politicians.
In stark contrast, no Australian state succeeded in incorporating I&R into its constitution despite several determined efforts in the early 1900s by state Labor governments. The main reason for the failures was the opposition of virtually all conservative-oriented Australian national and state politicians who preferred a representative or limited form of democracy, something with which the Labor Party now concurs. By the early 1920s, the impetus went out of this debate as more and more Labor politicians lost interest in transforming their states from ballotocracies into direct or true democracies.
Proponents of direct democracy
Since Kingston, only a handful of Australian politicians have spoken out publicly about the democratic nature and benefits of I&R, and not a single state or federal Labor politician has done so since at least 1963 when the party removed it from its platform.
Even fewer academics have supported I&R. In this group, the three most important who have publicly backed I&R are emeritus professor of law at the University of Queensland, Geoffrey de Q. Walker, and Emeritus Professor Martyn Webb, and his colleague and co-author, the late Professor Patrick O’Brien, both formerly of the University of Western Australia.
Martyn Webb made two fact-finding visits to the United States in the 1980s to investigate principles behind American local government and state constitutions. This led to his drafting a new constitution for Western Australia and later a book on republicanism in which he opposed the idea that removing The Queen would transform Australia into a republic. During the 1990s, he intermittently worked at the Institute of Government Studies at Berkeley. His 1990 draft constitution for Western Australia was presented to a state parliamentary select committee.
The late Patrick O’Brien was a political scientist specialising in Soviet and American political traditions and history. In his view, direct democracy provided the institutional means for its practical expression where written into a jurisdiction’s constitution, and ensured that “the man and woman in the street” became sovereign citizens, not merely subjects.
He wrote: This, of course, is the reason why there is so much resistance to such doctrines and practices from those who cherish the absolute powers mandated to the political executive by virtue of a Westminster-type system, no longer constrained by respect for those traditional conventions which, in the past, did at least provide some checks on gross abuses of the constitutionally undefined and unlimited executive powers of Prime Minister and Cabinet. O’Brien attributed the elites’ strong distrust of the people to Australia’s colonial past and also to the political correctness that is both promoted and reinforced in the nation’s universities.
He said: “These traditions have been homogenised in Australia mainly through higher educational institutions. This explains further why our elites distrust constitutional arrangements that empower the people.”
He asked: What, though, is our present constitutional reality? Does it, on balance, favour the people? In theory, our present order of constitutional priorities is: Parliament first; Executive second; people third. In reality, it is Executive first; Parliament second; people third. If we are committed to constitutional democracy and, thereby, transforming ourselves from subjects into sovereign citizens, we must make it: people first; Parliament second; Executive third. That is, we must democratise our overly hierarchical constitutional arrangements, which now make accountability of government to the people and Parliament nigh on impossible.
Significantly, it was only about a decade after the Labor Party effectively mothballed its I&R policy plank that it adopted its socialisation plank. This was in 1921 which was also the last year that a state Labor government sought to have I&R adopted at the state level. This makes it all the more remarkable that the I&R plank survived even on paper in the national platform between 1910 and 1963.
The third academic advocate of direct democracy is Geoffrey de Q. Walker. As well as regularly speaking on I&R, Walker is author of Australia’s most popular book on the subject; Initiative and Referendum: The People’s Law (1987).
The following summary of his views on the policy is taken from his 1994 Brisbane address to the Samuel Griffith Society:
• I&R checks tendencies of political parties to make laws that are contrary to the wishes or beliefs of the voters.
• I&R does not, however, eliminate political parties or lobby groups since these have a part to play.
• I&R allows people to distinguish between politics and personalities — so they no longer need to turn out of office a government they basically approve, simply because they object to one of its legislative policies, thereby increasing politicians’ security of tenure.
• Conversely, politicians can say “no” to minority pressure groups agitating for extreme legislation, while advising that if they really believe they have popular backing, they can launch a petition.
Direct legislation gives the people an incentive to take an interest in public issues and so make the best use of their talents and experience. It is sometimes said that Australians are politically apathetic and ignorant.
• On particular issues people may well be ill-informed and many are certainly apathetic. But that is itself a result of the present anti-democratic system which has deliberately excluded direct voter participation. To become well informed or active on a particular issue takes time and effort.
• At present, citizens have no incentive to seek full information on any particular issue because they know that when the next election comes they’ll be confronted with the same political cartel offering a choice between two, or at the most three, personalities and policies packages.
• The system of direct legislation, on the other hand, calls on voters to express considered opinions that will automatically count in the law-making process. This gives voters an incentive for independent and considered thought.
• Most people behave responsibly when responsibility is placed upon them. As Thomas Jefferson said, men in whom others believe come at length to believe in themselves; men on whom others depend are in the main dependable.
• Under Australia’s present anti-democratic constitutional arrangements and doctrines, governments that win elections are virtually handed dictatorial power for the next three or four years. In that time, there is little or nothing to stop them from using their parliamentary majority to destroy society’s most precious institutions or trample on its most cherished values.
• Politicians in countries where I&R exists have become more respectful towards public opinion. They have learned to give more thought and care to legislative proposals, and to avoid passing bills vehemently opposed by a substantial portion of the population.
Walker concluded by outlining how the direct involvement by Swiss voters as citizen law-makers had transformed their nation into a unique real democracy. In just three paragraphs he puts paid to all those who argue for voters to be subservient to politician hierarchs, party machines and their power-brokers: In Switzerland, the [citizen-initiated] referendum in fact accomplished a political revolution. This single institution led to the development of what has come to be called ‘consensus democracy’, in which the ranks of the government are opened to members of the opposition parties by a proportional allocation of Cabinet positions. This is the basis for the extraordinary stability of Swiss governments and the long tenure of elected representatives in that country.
But even apart from that, direct legislation takes some of the life-or-death character out of parliamentary elections, because the winning party no longer gains near-absolute power. It dispels the climate of fear that surrounds party rivalry and reduces the incentive or pressure to engage in unscrupulous or arbitrary behaviour.
ALP discards I&R
Sixty-three years after Labor’s 1900 adoption of I&R, it held its 25th national conference in Perth. On the agenda was a motion to drop the policy from its platform with little explanation. According to the party’s Official Report of the Proceedings of the 25th National Conference of the ALP, July 1963, the motion was moved by Don Dunstan, a future South Australian premier. then an Adelaide lawyer. He won unanimous support. The motion was carried 36 votes to none.
I&R in Australia has had few champions, but the list once upon a time included the Labor Party, or rather the Labor Party in its formative or pre- and immediate post-federation years.
It has also included a few non Labor politicians, notably the former independent MP, Ted Mack, and onetime Howard Government minister, Peter Reith. In the Western Australian parliament in 2008, only one MP, Dan Sullivan, a Liberal, actively backed adoption of direct democracy.
Labor’s early awareness of and attraction to I&R was due primarily to the influence of American Populist/Progressive thinking as disseminated within the Labor movement via the American Federation of Labor as well as ongoing informal contacts by certain early Labor activists. But this influence was short-lived, effectively lasting less than 20 years, even though the Labor Party retained the I&R plank in its official platforms for another half century, until 1963. In that year, the party’s 25th national conference unanimously dropped the plank on the grounds I&R could be used by its “enemies” to thwart Labor’s 1918 centralist plank, that part of Labor’s platform most cherished by senior ranks.
That the Labor Party’s upper echelons should so fear the people — the demos — is a truly amazing feature of that organisation. This appears never to have been brought to light before but it certainly provides support for O’Brien’s contention that “in every social democratic party there is a Leninist Party in potentia”.
In the 1960s, Labor once again set its sights on refashioning Australia into a unitary state rather than allowing it to remain a federated nation. Labor wished to see Australia more closely resemble the United Kingdom, New Zealand and South Africa, rather than permit it to evolve along the lines of the United States of America and Switzerland.
In so doing, it sought to further enshrine Westminster-style representative or limited democracy — all power to the elected few, not to the electing many. Labor’s fear was that if voters ever received a clear-cut ability to launch non-parliamentary choices via I&R, then most Australians would be able to reject centralisation at referendums. Creeping transformation towards a rigidly controlled unitary state through a process that would be slowly and methodically implemented from the top was consequently seen as the way to go. And that meant, first and foremost, denying Australians a way of electorally blocking such a move.
The fact that Labor went cool on I&R well before the outbreak of the Great War, when it was no longer “a third (minority) party”, means it is difficult not to suspect that most within its senior ranks had backed this plank for reasons other than a sincere commitment to democratic principles and practices. Such individuals saw I&R as a way of overcoming the blocking of Labor government-initiated legislation by non-Labor dominated state upper houses and even the Senate, an outlook and practice that was subsequently emulated by non-Labor parties which came to view I&R as something that would strip them of power.
Opposition to broader voter involvement in the legislative process is the antithesis of democracy because it ensures that power permanently rests with the few, rather than the many. Democracy envisages the very opposite, and to this day I&R is the most successful and best tested procedure for democracy to be fully realised. Despite this, both sides of Australia’s political divide have come deeply to despise I&R because they do not wish to share legislative power with all Australians.
[Joseph Poprzeczny is a Perth-based freelance journalist and historical researcher. This article is based on a longer article which appeared in the National Observer , No. 76, Autumn 2008, pages 7–32, whose website is at www.nationalobserver.net . The National Observer is published by the Council for the National Interest, PO Box 751, North Melbourne, Victoria 3051 (()3) 9326 5757. The National Observer is Australia's leading current affairs quarterly specialising in domestic and international politics, security-related challenges and issues of national cohesion. Its mission is to provide high-quality commentary unaffected by contemporary political correctness or prejudices, and to examine issues from the point of view of the long-term interests of Australians. Contributors have included many eminent commentators from a wide range of fields.]