Delaney, Joachim --- "Pulling Out the Roots of Rooting Democracy: Growing the Society We Want, Moira Rayner" [1997] AUJlHRights 26; (1997) 4(1) Australian Journal of Human Rights 213

Review Article: Pulling out the roots of Rooting Democracy, Moira Rayner

Joachim Delaney

• Defining the public interest
• The roots of democracy
• Participation and consultation
• Protecting human rights
• Representative and accountable government
• The rule of law
• A wilting democracy?
• The way forward
• Conclusion

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The surprising popularity of politicians such as Pauline Hanson, the heated debate over the Wik case and native title, the continuous rise in unemployment and the growing tension between the politicians and the judiciary, has raised fundamental questions about the state of Australian society as a modern democracy. In Rooting Democracy, Growing the society we want, Moira Rayner critically examines Australian democracy, scrutinising the underlying philosophy as well as the form and processes of this modern democracy. She explores the type of society a modern democracy should ensure, compares this with the current shape of our democracy and suggests ways of improving the declining state of Australian democracy.

Defining the public interest

In the introduction, Rayner illustrates the need for the public interest as a balancing tool in a democratic society. The public interest is concerned with interests such as education, public health and the environment. These interests are essential to create a cooperative and democratic society, which "offers a decent life for all its citizens".[1] As these interests often conflict with individual private interests, they must be protected and promoted by the government. Rayner stresses that government is about people. Participation in government is imperative to establish trust in government. As well as periodic elections, participation involves regular consultation and public discussions, local government activities and membership in community and other associations, as indicated by Robert Putnam's study of democracies. Accordingly, the central question is "how do we build [a decent society] together?"[2]

Having defined the public interest as the central concern of a democracy, Rayner goes on to outline the underlying philosophy of a modern democracy in the first section. The second examines the state of Australian democracy, illustrating the problems and deficiencies through interesting and often alarming case studies, many revolving around the Kennett government. The last section strives to bring the theoretical goals in line with democracy in practice and looks at ways of moving forward.

The roots of democracy

Rayner describes four fundamental characteristics of a democratic society -- participation and consultation, the protection of human rights, representative and accountable government and the rule of law. These characteristics form the benchmark against which Rayner evaluates Australian democracy.

Participation and consultation

Rayner outlines the concept of citizenship, and the need for reciprocity and communication between citizens and the government. People involvement, and people knowledge and interest in government are two core elements missing in Australian democracy. Active citizenship involves two way communication between the people and the government, particularly through the spreading of information and public debate. Rayner points out that while there are many vocal community and interest groups, there is still insufficient communication, as illustrated by the case study on women prisoners. To fulfil its duty to all citizens, Rayner argues the government must actively solicit the views of its citizens, through for example referendums, formal commissions of inquiry, statutory watchdogs and public surveys. Without communication, government cannot be open and accountable.

Protecting human rights

Rayner explores the need for human rights protection in a democratic society. Human rights form "the bridge between our private interests and the public interest".[3] They embody the rights and duties of citizens and the government, falling into four main categories - fundamental freedoms, political rights, legal rights and social rights. Rayner shows how the growing importance of social rights indicates the changing nature of the relationship between citizens and government. However, without legal protection, the value of human rights is diminished. Rayner reminds us that underlying all human rights protection is the fundamental dilemma of balancing individual and community interests. The difficulties in striking an appropriate balance are evident in the conflicts between privacy, confidentiality and the public interest and conflicts between the rights of children and the rights of parents.

Representative and accountable government

Rayner describes two processes which ensure democracy or "people's rule" in practical terms -- free and fair elections, and accountability. While Australian democracy fulfils most of the essential requirements for ensuring free and fair elections, Rayner points out some of the problems in the different voting systems adopted by the Commonwealth and the States. These problems include the undemocratic nature of the federal Senate, the disadvantages of swinging voters and the restricted representation of a one vote, one value system.

Accountability of government is essential to ensure power is used in the public interest. For Rayner excessive executive power and the weakness of other government institutions are fundamental causes of the problems in all Australian governments at all levels. A powerful executive limits the initiative of the lower houses and their ability to scrutinise government actions and instigate real debate. The separation of powers between the government and the judiciary is a fundamental to ensure accountability. New checks and balances, such as ombudsmen, commissioners, tribunals and statutory review processes, developed to ensure government power is exercised in the public interest, have not prevented official misbehaviour.

The rule of law

Rayner outlines the importance of justice in a democratic society and emphasises that the rule of law and equality are imperative to attain a just society. Rayner describes the role of the judiciary and shows how justice is ensured through criminal law, civil law, administrative law and constitutional law. Rayner stresses that the judiciary must be independent. If the judiciary is unable to operate free from political influence with the knowledge that their position is secure despite unpopular judgments, not only will their work be jeopardised, but it will impede on the rule of law and undermine public confidence. Rayner's analysis of the High Court's recent approach to human rights questions indicates the need for an independent judiciary and exemplifies the courts' role in interpreting the law in accordance with the principles of rights, representative democracy and citizenship.

A wilting democracy?

Rayner examines the various problems with the fundamental characteristics of democracy in Australian society. These problems include the divergence between the constitutional framework of government and political reality, the impact an expansionist executive has had on the role of the parliament, governors and the public service as well as the accountability of government and the detrimental affect of the attacks on the judiciary and their independence. Rayner also looks at the need for equality in the law and the state of the legal profession, the need for local government to encourage people participation, the role of watchdogs in ensuring an open and accountable government, the influence of the media on public opinion and the effects of privatisation on the role of government.

The way forward

Rayner makes a number of suggestions to improve Australian democracy. First, the people must be put back into parliament through communication, public consultation, and open and accountable government. Secondly, the powers and operation of local government must be enhanced as the "building block for democracy".[4] Limiting the expansion of the free market is the next step and constitutional change is the final step. While Rayner acknowledges that the people should decide the form and type of rights that should be adopted, she argues that we need a constitutionally protected set of human rights, which cannot be overridden by the government to the detriment of individual rights and the public interest.

Many would find Rayner's view on constitutional change controversial. While the need for constitutional change is now generally accepted, especially in light of the Republican debate, adopting a bill of rights might face strong opposition.

Conclusion

Directed to all Australians, Rayner's book provides an informative and comprehensive discussion of the philosophical and practical needs of a modern democracy, where Australian democracy fits into these ideals and how its deficiencies may be improved. Through a critical analysis of the current state of Australian democracy, Rayner achieves her primary goal in searching for ways of building a democratic society together. Her clear and concise writing style provides every Australian the opportunity to understand the wide range of issues canvassed. This simplistic approach, however, may frustrate more learned readers. Much of the discussion focuses on more opinion-based arguments emanating from personal experience, rather than an extensive debate of the complex issues raised. While the reader may expect a general overview of the theory of a modern democracy, and the translation of this theory in Australian democracy, many readers may find that the book does not reach the crux of the problems with Australian society. Nonetheless, at a time of change within Australia and throughout the international community, this book invokes public debate on the most challenging and important questions facing Australian people, that is what sort of society do we want and how do we build it together.

* Solicitor, Baker & McKenzie, Sydney.

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[1] Ibid, p 5.

[2] Ibid, p 5.

[3] Ibid, p 30.

[4] Ibid, p 256.