THE
NINTH LUCINDA LECTURE MONASH
UNIVERSITY, 24 JULY, 2001 THE
SHAPE OF REPRESENTATIVE DEMOCRACY MURRAY
GLEESON
The circumstances that gave rise to the litigation
in Bush v Gore
must have shaken the confidence of some Australians who
believe that we all know what representative democracy means;
that even if there are minor differences between the so-called
Western democracies, the essential features are common to
them all; that, like natural law, the fundamental principles
of representative democracy are written on the hearts of
all right thinking people; and that reflection upon those
principles will expose far-reaching implications in the
text of the Constitution.
Such confidence was never easy to reconcile with
the facts. A useful way to show that is to present
a series of pictures of representative democracy, with a
gradually narrowing focus.
We all notice, perhaps with amusement, perhaps with
indignation, that the title of democracy is sometimes claimed
by governments in countries which appear to us to be distinctly
undemocratic. What is often unremarked is the extent
of the differences between our system of government and
the systems of other nations we regard as politically comparable.
Those differences can be illustrated by considering the
broad outlines of the systems of government in five nations:
the United Kingdom; the United States of America; Canada;
New Zealand; and Australia.
Four of those nations are governed under a system
of constitutional monarchy; one is a republic. Four
of them have the same monarch, but she is no longer regarded
as indivisible. Only in Australia is the possibility
of republicanism a significant item on the current political
agenda.
In four of the five nations, the national parliament
is bicameral. New Zealand is the exception.
But there are major differences in the manner in which the
Upper House is constituted. In the United Kingdom
that position is changing, but it is broadly true to say
that the Upper House is constituted by members of the nobility.
There is no such class in any of the other four nations.
In Canada, as in the United States of America and Australia,
the Upper House in the national parliament represents regions,
but in Canada, unlike the United States and Australia, the
members of the Upper House are not elected. They are
appointed by the Governor-General, on the advice of the
Prime Minister. It is the United States system of
electing members of the Senate that is closest to the Australian
system; not surprisingly, because in this respect our Constitution
consciously followed the United States model. That
model was described by the Supreme Court of the United States
as "the Great Compromise, under which one House was
viewed as representing the people, and the other, states".
In all five nations, the members of the Lower House
(or, in the case of New Zealand, the House) of the national
parliament are popularly elected, but the methods of election
are radically different. All five have universal adult
suffrage, but only one, Australia, has compulsory voting.
It will be necessary, later, to make more detailed reference
to the Australian systems of election, but for the present
it is sufficient to note that we now elect members of the
House of Representatives by a system of preferential voting
at a secret ballot. Parliament does not meet for fixed
terms. In the United Kingdom, members of the House
of Commons are elected on a first-past-the-post voting system
for terms of five years, subject to dissolution. Until
fairly recently, New Zealand also had a first-past-the-post
electoral system. This was altered to a variant of
the German multiple member system, under which the parliament
consists of a number of members elected in single-seat constituencies,
and a number elected by proportional representation from
national party lists for those parties obtaining at least
a certain percentage of the national vote. A certain
number of seats are also designated for Maori representation.
Members of the House of Representatives in the United States,
and the House of Commons in Canada, are elected on a first-past-the-post
system.
The difference between preferential voting and a
first-past-the-post system is important. Systems of
preferential voting vary, and include full preferential,
partial preferential, and optional preferential voting.
A first-past-the-post system operates on a winner take all
basis that can deny parliamentary representation to substantial
levels of minority opinion, and can produce large differences
between the parliamentary strength of the majority party
and the percentage of the population supporting that party.
For example, in the 1987 general election in the United
Kingdom, the Liberal Social Democratic Alliance polled 22.6%
of the vote but won only 3.4% of the seats in the House
of Commons. In the United Kingdom, governments commonly
enjoy parliamentary majorities out of proportion to their
electoral support, and election results, in terms of parliamentary
representation, tend to be much more decisive than in Australia.
And, of course, the member elected for a particular constituency
need not receive the support, either directly or indirectly,
of a majority of voters, let alone a majority of electors.
The first Commonwealth Electoral Act in Australia
provided for a first-past-the-post voting system for the
House of Representatives. Preferential voting was
first used at a general election in 1919. Compulsory
voting for general elections was introduced in 1924.
The significance of compulsory voting is a matter for a
political scientist rather than a lawyer. Whatever
the precise significance may be at parliamentary elections,
there is little doubt that it is a major factor influencing
the outcome of the referendum process in connection with
proposals for constitutional change. The low success
rate of proposals to amend the Australian Constitution may
be attributable to a number of factors, but it is difficult
to avoid the conclusion that one of them is the resistance
to change that results from compelling people to vote when
they feel that they are uncertain about the implications
of change, and are not particularly unhappy with the status
quo. The party political system provides guidance
and assistance to voters at general elections, but it may
be different at a referendum to consider constitutional
change.
Of the five nations mentioned, three have federal
systems of government, and two have unitary systems.
A description of the system in the United Kingdom as unitary
might now involve some over-simplication, but it is still
broadly correct. A federal structure of government
has a large influence upon the shape of representative democracy.
In Australia, as in the United States, the two Houses of
the national parliament are elected upon different lines.
In each place, the members of the House of Representatives
are elected to represent particular electoral divisions,
and are chosen by popular vote of the people who live in
those electoral divisions, although the method of election
is different. Senators are elected to represent a
State, and each State has the same number of representatives.
In the United States, senators were originally chosen by
the State legislatures, but this procedure was changed by
the 17th Amendment to the United States Constitution,
adopted in 1913.
Four of the five nations have a system of responsible
government, under which the executive government is, in
practice, entrusted to Ministers who are members of parliament
(although not necessarily the Lower House) and who hold
office only so long as they enjoy the confidence of the
Lower House. The United States does not have a system
of responsible government, executive power being vested
in an elected President. It is unnecessary to explore
the method by which the President is elected. That
method, in itself, provides a vivid example of the complexities,
and possibilities for variation, that can be associated
with popular election.
This brief description of the main features of the
systems of government in five nations which most Australians
would, without question, regard as representative democracies,
demonstrates that it is erroneous, and dangerous, to assume
that representative democracy is a concept with a fixed
and readily discoverable content. Writing in 1964,
a commentator said:
"A political system can properly
be described as a system of representative government if
it is one in which representatives of the people share,
to a significant degree, in the making of political decisions
... The necessary condition of representative government
is therefore said to be the existence of a fair number of
representatives of the people, meeting together in some
kind of council or assembly."
The
scope for variation in the forms of representative government
becomes equally obvious when attention is concentrated on
Australia.
It is convenient to consider the Australian system
of government at three levels: the national government;
State and Territory government; and local government.
Reference was earlier made to universal adult suffrage.
At the time the Australian Constitution came into effect,
there was no such system. In most parts of Australia,
women were not entitled to vote. In most States, women
were not eligible to vote in the referendum process leading
to the adoption of the Constitution. In a number of
Australian colonies in 1900, adult males were only entitled
to vote if they satisfied a residential and/or property
and/or income qualification.
The Franchise Act (Cth) of 1902 provided for
universal adult suffrage for British subjects, male and
female, over 21 years of age although, as was noted earlier,
voting was voluntary. Aboriginal Australians were
treated differently. In 1962, voluntary enrolment
for Aboriginal Australians was introduced, and voting was
compulsory for those enrolled. Enrolment for Aboriginal
Australians only became compulsory in 1984. In 1973,
the voting age at Australian federal elections was lowered
to 18. No one doubts the lawfulness and propriety
of having a minimum age for voting. It might be interesting,
however, to consider the constitutional validity of a law
that fixed a maximum age for voting. Of course, it
would be discriminatory, but we do not hesitate to discriminate
between people aged 18 and 17. And, lest it be thought
that discrimination on the ground of age is repugnant to
the Constitution, let me remind you of a provision that
affects me, personally and directly, and clearly discriminates
on the ground of age. I refer to s 72. I am
not complaining. I voted in favour of the change to
s 72. And it seems reasonable to assume that, if an
age limit of 70 had not been imposed, I would not be a federal
judge, because Sir Anthony Mason would still be Chief Justice
of the High Court, if he wanted to be. He is perfectly
fit, and sits from time to time as a member of the Hong
Kong Final Court of Appeal, which is a sensitive and responsible
judicial office. He is younger than the current Chief
Justice of the Supreme Court of the United States.
He is younger than both Sir Owen Dixon and Sir Garfield
Barwick at the time of their retirement. And he is
younger than Sir Frank Gavan Duffy was at the time he became
Chief Justice. My reference to the possibility of
a law imposing an upper age limit upon voting is not intended
as a proposal for change. It is intended to draw attention
to the uncertainty of the limits of the constitutional phrase,
"chosen by the people".
The Constitution provides for representation of the
Territories in the Senate on such terms as the Federal Parliament
thinks fit (s 122). It is left to Parliament to decide
what that representation, if any, will be. In that
respect, the rights of residents of the Territories are
less than those of residents of the States. This is
a clear form of inequality.
The method of alteration of the Australian Constitution
is also a factor basic to the structure of our system of
government. In brief, s 128 provides that a proposal
for a referendum to change the Constitution must originate
from the Federal Parliament, and must be supported by a
majority of voters in a majority of States. We do
not have a system, of the kind that exists in some other
countries, of citizen initiated constitutional change, nor
does a State legislature have the power to initiate such
a proposal. It is no coincidence that proposals for
change have shown a tendency to increase Commonwealth power.
The requirement that change needs the approval of
a majority of voters in a majority of states represents
federalism at work; and shows the flexibility of democracy.
A topical example illustrates the point. Whatever
one's opinion on the republican question, the outcome of
the recent referendum was mercifully clear-cut. Suppose
that a significant majority of Australians had voted yes,
but the result in majority of States had been the other
way. Legally, the outcome would have been clear, but
it is interesting to speculate on the political consequences.
Such a result is possible in any referendum for constitutional
change. It shows that references to "the will
of the majority" involve over-simplification.
Since the Constitution itself cannot be changed by a simple
majority of the Australian people, and voters in the less
populous States can defeat the will of a majority of Australians,
what does that say about the safety of drawing constitutional
implications concerning equality of voting power?
The tension between federalism and democracy, like
the tension between federalism and responsible government,
was well understood by the framers of the Constitution,
and by politicians generally at the time of federation.
Writing in relating to an early proposal that senators be
elected by the State parliaments, Professor La Nauze said:
"The Labour parties had generally
been indifferent or hostile, if not to federation, at least
to federation as proposed in 1891. They had had more
immediate and more urgent objectives to be gained through
legislation in their local parliaments. But when Labour
men had discussed the Bill of 1891 they had invariably criticized
its 'undemocratic' features: the absence of provisions
for 'one man, one vote', and for a uniform federal franchise;
the election of the Senate by parliaments whose upper Houses
enshrined privilege. Whether as a result of expediency
or conviction, a Constitution framed in 1897, and subject
to the verdict of a referendum, was bound to be less open
than its predecessor to the charge of being 'undemocratic'
if its framers sincerely hoped to see it adopted.
Nevertheless, the formal requirements of pure democracy
would at some point be confronted with those of federalism.
The objections of the radicals of the two large States to
equal State representation in the Senate, and to equal powers
for the two Houses, were in fact objections to federation
on terms to which the majority of States would agree."
A defining feature of our Constitution, and hence
of our system of government, is federalism. The Australian
nation, as it ultimately evolved, was originally the product
of an agreement between the people of a number of British
colonies. Those colonies were at various stages in
the development of self-government, and their systems of
government, at the time, would not satisfy current Australian
ideas of what is democratic. The Imperial government,
in theory, may have had the power to put an end to the existence
of the Australian colonies and impose a unitary Constitution.
But it never had the will to do so. (In that respect,
it is worth remembering that participation by New Zealand
in the new federal union was once regarded as a possibility).
The fact that the new union was to be a federal union, emerging
from a negotiated agreement between the people of separate
colonies, frustrated, and in some respects continues to
frustrate, those whose political opinions about democracy,
and equality, are at odds with federalism. It frustrates
some people on other grounds as well. But that is
a political, not a legal, problem. When political
values are confused with legal principles, constitutional
misinterpretation results.
The manner in which the Senate is constituted is
influenced by the method of voting for senators. This
method of voting is determined, from time to time, by legislation
of the Federal Parliament, not by the Constitution.
Before 1948, the method of voting for senators meant that
the political party that dominated the House of Representatives
also enjoyed a majority in the Senate. Between 1946
and 1949, there were only 3 Opposition senators facing 33
Government senators. As the result of legislative
change in 1948, since 1949 senators have been elected on
a basis of proportional representation. This in itself
produced a change in the membership of the Senate.
But an equally significant change occurred as a result of
legislation in 1984, which increased the number of senators
from 10 per State to 12 per State. In party political
terms, this change was brought about by an alliance between
the Australian Labor Party and the National Party, and was
opposed by the Liberal Party. When combined with the
system of proportional representation that applies to Senate
elections, the practical result has been to make it easier
for independents, and members of minor parties, to be elected
to the Senate, and to make it difficult for a major party
to obtain a majority in the Senate. The people best
at explaining this are politicians, but expressed in simple
lawyers' terms, and related to half-Senate elections, it
is easier for a party to get 3 out of 5 candidates elected
than it is to get 4 out of 6. The consequence is that
at the present time, and for the foreseeable future, the
party which controls the House of Representatives does not
control the Senate, and is forced to negotiate with independents,
and minor parties, to secure the passage of legislation
opposed by a major party.
The method by which the Senate is constituted, and
the provisions of the Constitution relating to amendment
of the Constitution, have a bearing upon the slogan "one
vote, one value". Exactly how a vote is valued
is not clear to me. But it is certainly arguable that,
within the Australian federal structure, a vote in Tasmania
is worth more than a vote in Victoria, and a vote in Victoria
is worth more than a vote in the Australian Capital Territory.
This is the direct consequence of the manner in which the
Senate is constituted, and the method which the Constitution
provides for its own amendment. It is the federal
compact. It is the price that had to be paid for federal
union. Whether we like it or not, it exists in the
express provisions of the Constitution. And the express
provisions of any instrument, including a Constitution,
have a controlling effect upon any possible implications.
There are differences between the systems of government
that operate in the various Australian States. Most
State parliaments are bicameral, but that of Queensland
is not. The Upper Houses in the State parliaments
are now generally representative of the community, but that
was not the case at Federation, or for a good part of the
20th century. When the Constitution first
took effect, the Upper Houses of some States were, by modern
standards, notably undemocratic. That, again, has
a bearing on the scope for Constitutional implication.
Tasmania has a distinctive system of voting for the Lower
House, the House of Assembly. The so-called Hare-Clark
electoral system is quite unlike any other State system.
There is even greater variation at the level of local
government. The powers of local government authorities
are determined by State legislation, and differ from place
to place, and from time to time. Some local government
authorities are elected. Others are appointed, at
least on occasion. Electoral systems and procedures
vary. One of the most important local government authorities
in Australia is the Sydney City Council. Within the
last 30 years, there have been repeated alterations to the
method by which the Sydney City Council is elected or, from
time to time, administered. Boundaries have changed,
as have voting entitlements. The constitution of such
a Council can be altered depending upon whether the voting
strength lies with the Central Business District, or densely
populated inner suburban areas.
A feature of the Australian Constitution is how little
it has to say about the election of members of the Parliament;
and how much choice it leaves to the Parliament itself in
determining, from time to time, the form of representative
democracy to be enjoyed by Australians. That is not
surprising, bearing in mind the context in which the Constitution
was framed. Most Australian women were not entitled
to vote. No one was compelled to vote. Aboriginal
Australians were not counted. The Upper Houses of
State parliaments were not democratically constituted.
The framers of the Constitution did not approach their task
with a rigid view of what constituted representative democracy;
and that is just as well for us. Democracy is always
in a state of evolution, and adaptation to changing ideas
and circumstances. The Constitution does not seek
to entrench more than the bare minimum of conditions for
democratic government; it is left to the Parliament to fill
in the details, and to alter them from time to time in response
to public opinion expressed through political pressure and
conflict.
Section 7 of the Constitution provides that the Senate
shall be composed of senators for each State "directly
chosen by the people of the State". Each original
State is to have equal representation. The method
of election is to be as Parliament provides. Subject
to such constraints as are embodied in the expression "directly
chosen by the people", it is for Parliament to devise,
and alter, where it thinks appropriate, the method by which
the people of a State express their choice. What has
been said earlier demonstrates the range of choice that
is available to Parliament. Since Federation, there
have been large alterations in the method of election of
Senators, and those alterations have resulted, not from
amendment to the Constitution, but from legislation.
Parliament is given, by s 7, the power to alter the number
of senators for each State, provided equal representation
between the original States is maintained. The increase
in the number of senators in 1984 which, together with the
system of proportional representation, produced the result
that the party majority which controls the House of Representatives
will almost certainly not be reflected in the Senate, has
had a major influence on the alignment of political power.
From a legal perspective, it is beside the point to argue
about whether it is democratic that the party that controls
the popularily elected House should have to negotiate with
independents, or representatives of minor parties, for the
passage of all contested legislation. The point of
legal significance is that it is within the power of the
Parliament itself to create, or to do away with, that outcome.
It is not a matter determined by the Constitution.
To accept that position, but at the same time to deny to
Parliament some area of discretion about the size of electorates
for the House of Representatives might be described, in
Biblical terms, as straining at a gnat and swallowing a
camel.
It is the Constitution that determines the powers of the
Senate, and requires that there be equal representation
for each State, but it is the Parliament that, subject to
the constraint earlier mentioned, determines the method
of election of senators. Because of the way in which
the party political system works, which is a matter outside
the purview of the Constitution, the current dispensation
has resulted in a practical consequence of great significance
for the balance of power between the House of Representatives
and the Senate. Thus, the shape of our representative
democracy is moulded, not only by federalism, reflected
in a bicameral Parliament with a Senate set up to provide
representation on a State basis, but also by the provisions
made by Parliament as to the size of such representation
and the method of election.
In the case of the House of Representatives, there
is a similar discretion given to Parliament as to the form
of representation. Section 24 provides that the House
of Representatives shall be composed of members directly
chosen by the people of the Commonwealth, and the number
of such members shall be, as nearly as practicable, twice
the number of senators. The number of members chosen
in the several States is to be in proportion to the respective
numbers of their people. Again, the expression "directly
chosen by the people" introduces a constraint upon
the discretion of Parliament, but the comments earlier made
apply equally here.
Decisions of the High Court have established certain
propositions.
First, "chosen by the people" does not
require that all voters can please themselves whether to
vote and whom to vote for. A right to choose may exist
even if the available choice is only between unpalatable
alternatives. Compulsory voting is lawful,
and Parliament may prescribe a method of preferential voting
which requires ballot papers to be marked in a certain fashion.
Secondly, the words "the people of the Commonwealth",
in s 24, do not include the people of the Territories.
Thirdly, the Constitution does not require the number
of people, or the number of electors, in electoral divisions
for the purposes of the House of Representatives, to be
equal.
There has been a division of judicial opinion as
to whether the Constitution guarantees universal adult suffrage.
In 1975, a majority of the High Court said that it does
not. A minority took the veiw that the requirement
of direct choice by the people of the Commonwealth might
now import that minimum condition.
This question, in turn, raises wider issues of constitutional
interpretation, because the Constitution came into effect
in a context which did not have universal adult suffrage.
Indeed, when the position of Aboriginal Australians is taken
into account, Australia did not have universal adult suffrage
until 1962. I express no view on the question, which
might again come before the High Court for decision.
What all this shows is that representative democracy
can take many different forms; and that the Constitution
leaves it to the Federal Parliament, and State and Territory
Parliaments, from time to time to decide most of the matters
affecting the shape of our democracy.
In his reasons for judgment in McGinty v Western
Australia,
Gummow J quoted from the writings of John Stuart Mill in
1861.
Mill said:
"In
treating of representative government it is above all necessary
to keep in view the distinction between its idea or essence,
and the particular forms in which the idea has been clothed
by accidental historical developments, or by the notions
current at some particular period.
The meaning of representative government
is, that the whole people, or some numerous portion of them,
exercise through deputies periodically elected by
themselves, the ultimate controlling power, which, in every
constitution, must reside somewhere."
The necessity of distinguishing between the essence
of representative democracy, and the forms of representative
democracy resulting from accidents of history, or ideas
fashionable at particular times, is demonstrated by the
survey I have earlier undertaken. The Constitution
has left it to Parliament to decide the essentially political
question of the form of representation which in Australia,
at any given time, best accords with our current ideas of
democracy. That the issue is chiefly political cannot
be doubted. Consider the following questions.
Is a first past-the-post system of voting more or less democratic
than a system of preferential voting? Is the current
system of electing senators more or less democratic than
the previous system? Is our method of altering our
Constitution democratic? The law does not provide
an answer to any of those questions. They are legitimate
subjects of political disagreement. The democratic
method of resolving those differences, to the extent to
which they are capable of resolution, is through the political
process.
The Constitution makes no reference to the political
process or political parties. The party system has
changed significantly over the century since Federation,
and will continue to change. The Constitution says
nothing about such important features of our system as Cabinet
or the offices of Prime Minister or Leader of the Opposition.
(If we became a republic, would there continue to be a Leader
of the Opposition?) The Constitution makes no mention
of Local Government, and it deals with the Territories very
briefly.
One explanation of the difference between our constitutional
arrangements and those of the United States, in relation
to the degree of choice left to Parliament about to the
shape of our democracy, was given by Sir Garfield Barwick
in the case of McKinlay.
A similar point was later made in relation to the difference
between the Canadian and United States Constitutions by
the present Chief Justice of Canada.
The United States Constitution was the outcome of a revolt
against British institutions and methods of government.
It reflected a deep distrust of concentration of power.
It was accepted on the understanding that it would be amended
to include a Bill of Rights. The Australian Constitution
took legal effect as part of a statute of the United Kingdom
Parliament. It was framed with the encouragement of
the United Kingdom government, by people, most of whom regarded
themselves as British, and who generally admired and respected
British institutions. They were anxious, in the interests
of their own security, to be seen as part of the British
Empire. The British institutions they set out to emulate
included parliamentary supremacy and Ministerial responsibility
to Parliament, to the extent to which those institutions
were compatible with federalism. It is not surprising
that our Constitution in large measure leaves it to Parliament
to determine, from time to time, most of the issues that
affect the shape of representative democracy in Australia.
Bearing in mind how our Constitution came into being, it
would be surprising if it were otherwise.
This, it may be thought, is not merely understandable;
it is also democratic. One thing the Constitution
says about the Parliament is that its members are to be
chosen by the people. It is through the political
process, and the exercise by the people of their choice
in the selection of parliamentary representatives, that
responsiveness to the popular will exists.
There is something paradoxical about an idea that
our democracy is best secured by the prescriptions of a
current generation of lawyers, because such an idea is undemocratic.
Our system of representative government depends as much,
for its health and vitality, upon an open and vigorous political
process, a free press, and a concerned and informed public,
as it does upon legal principles and institutions.
And the capacity of the framework of government to evolve,
and adapt to changing values and circumstances, depends
upon its not being fettered unduly by the opinions or standards
of the people of a particular time.
An examination of what the Constitution says, and
what it does not say, about representative democracy demonstrates
the effect of two great formative influences: federalism;
and British institutions. Not all the framers of the
Constitution were federalists; but most of them were.
Not all admired the British system; but most did.
Now, a century later, there may be many Australians who
regret federalism, or who wish we had more closely followed
the American, or some other, model. But those are
political preferences, and their proper place is in the
political arena. To understand what the Constitution
says, and to understand why it is silent on some matters,
it is necessary to take account of the context from which
it emerged. The framers were not given, and most of
them did not want, a clean slate to write on. The
only union that was available to them, as a practical possibility,
was a federal union: a body politic organized along
federal lines, with the colonies in their new capacity as
States, as integral components. So their agreement
reflected compromises about States' interests. The
framers' regard for British institutions powerfully influenced
their approach to what should be included, and what should
be left out. Regard for such institutions is not now
as widespread among Australians. But it helps to explain
the present form of our Constitution, and many other aspects
of our system of law and government. The Constitution
is a living and dynamic instrument of government; but it
is often necessary, for an understanding of its meaning,
to pay regard to its history.
The ground rules for government are set out in the
Constitution; but they leave a lot to be filled in by Parliament.
There are Australians who do not like some of the rules
as stated; there are some Australians, who would prefer
that the Constitution said more, and left less to be decided
by Parliament. The democratic and legitimate way to
resolve such issues is through the political process, including
public debate about constitutional and legislative change.
