Magna Carta and ‘vox pop’ democracy

Dr Nicholas Gruen

If we compare our own system of government to King John’s government – either before or after Magna Carta – there is no comparison. We have a robust democracy rather than a tyranny at the very beginning of a centuries long process by which the West came to impose the rule of law on its rulers. In contrast to the barons of thirteenth century England, if we’re unhappy with our government, we vote them out. Yet all is not well in our democracy.

Our political system has rarely been held in such low regard. In what I call our ‘vox pop’ democracy, there is a pervasive sense of the staged quality of politics and its remoteness from citizens’ lives and concerns. Political parties have hollowed out to a rump of professionals managing party ‘brands’ – in turn, political ‘brand management’ has hollowed out public debate, producing systemic disaffection and deepening cynicism and distrust.

But despite a good deal of agreement as to the nature of the problem, there’s little that’s agreed about how these problems could be tackled. You could say ‘that’s politics’ – vigorous disagreement is part of the package. But while agreeing on improvements to our democracy will always involve debate, there’s a deeper problem. When we think about the problem we excuse our own role in the problem. We sentimentalise the idea of ‘we the people’.

‘We the people’ can do no wrong. It’s our politicians that let us down – by gilding the lily, by promising more than they can or intend to deliver. And their media are also to blame. They reduce the news to entertainment and encourage people’s resentments.

This sentimentalism then sees us swoon to the siren song of people doing democracy themselves. The internet’s extraordinary connectivity can amp up democratic participation so that we can by-pass a corrupt system and take matters into our own hands.

But the fact is that ‘we the people’ are thoroughly implicated in all those aspects of democracy that we feel so disillusioned with. After all, it’s a democracy. It would be surprising if we didn’t have a pretty pivotal role in the shape our democracy has taken.

The media only got the way it has because our decisions as media consumers reinforced the editorial decisions the media makes. The media reports personality conflict, and the talkback radio of resentful, narcissistic entitlement ahead of policy analysis because that’s what gets us buying papers, tuning in and clicking links.

And guess why politicians make promises that can’t keep? Because it wins them elections. We vote for the promises they can’t keep. (As Bernard says to Prime Minister – or perhaps it’s just Minister Hacker – when Hacker muses that the civil service seems to do little other than prevent politicians implementing their sacred promises to the people: “Well someone has to”.)

This sentimentalism about ‘we the people’ is often tantamount to magical thinking as for instance when a sizable block of republicans wanted to use the occasion of the recent republican referendum to introduce a system in which the people would take the appointment of a head of state into their own hands. No more politicians thank you! But a moments’ reflection reveals who you’ll get if the people elect a public office-bearer. A politician!

Though I am not particularly sympathetic to the argument he was making in articulating them, the Austrian economist and political philosopher Joseph Schumpeter offered two fundamental ideas that have governed my own understanding of our dilemma.

His first point is that even rudimentary social organisations like a local football club have a division of labour and specialisation. Governments have all sorts of functions to perform and that means a division of manual and intellectual labour. A great deal of what governments do involves detailed administration of the relatively humdrum. Wanting all such details to be governed by the will of the people in democratic elections is a recipe for dysfunction. We need means to delegate to those who understand the issues. So the real question becomes how to do we delegate that work so that it is done and seen to be done effectively.

Secondly when ‘we the people’ do engage in politics by voting or by more extensive activism that conduct is generally driven not by reason, but by our expressive and emotional faculties. (If we were governed wholly by instrumental reason, there’d be no point in voting given how infinitesimal is the chance of influencing the outcome.) As early as the 1940s, Schumpeter was prescient about the similarity between the growing irrationalism of commercial advertising and political campaigning. He observes:

We find the same attempts to contact the subconscious . . . the same technique of creating favorable and unfavorable associations which are the more effective the less rational they are . . . the same evasions . . . and the same trick of producing opinion by reiterated assertion that is successful precisely to the extent to which it avoids

Sound familiar?

Today we live in a democracy in which either side can paralyze the other with a scare campaign by playing on fears. Paul Keating won an election in 1993 with an about face on the GST – opposing the very policy he’d so vociferously campaigned for a few years previously. It was hugely successful. Vox pop scare mongering at its best.

But today we’re even further along the road. For in 1993, for all its brazenness, the policies with which Keating retained government were relatively coherent.

Today the depredations of vox pop democracy have gone further. The current government found its way to power not simply with a vox pop scare campaign but with a policy that was designed only to get through media interviews, not any length of time in government. And so the government committed itself to meeting Australia’s emissions targets at the same time as dismantling the most efficient way to do so – with carbon pricing – and replacing it with a subsidy scheme which will only be effective to the extent that it evolves towards the carbon pricing scheme it replaced.

The Magna Carta: from absolute power to limitations and accountability

Pia Waugh

The Magna Carta is an important part of our democratic history and provides some useful lessons to this very day. It was a key step in placing limitations on the absolute power of the Crown, but it also put unprecedented power into the hands of an elite business class which tool several more centuries to rebalance.

Unlimited power by a King or Emperor has always been tricky for community and commerce. Unpredictable taxes, arbitrary decisions, illegal imprisonment and other random enforcement, wars based on personal vendettas, controls over communications and transport and international relations based on personality all make for an unstable environment in which to prosper. The King at the time believed himself to be above the law and a group of rebel barons strongly disagreed. The Magna Carta was, broadly speaking, an uneasy truce between the King and the barons which had the practical impact of limiting the power of the King and creating a more stable and sustainable environment. Similar to any major power struggle, it was accompanied by drama and violence.

The limitations on power imposed by the Magna Carta established the basis of the Westminster democratic political system, by having a group of people, albeit barons, responsible to holding the King to account. Limitations of power needs to be accompanied by accountability, or the limitations are meaningless. However, this model was still very based on the elite holding the super-elite to account, and did not have the characteristics of representative democracy we see today. That was to come later.

The Magna Carta saw the distribution of power from the King to the elite class but it was the various independence movements of the 18th century that led to the distribution of power from the elite to the common people. The American secession from Britain could have been based on a simple call for national independence, but it used the argument of the ‘unalienable rights’ of all men as the basis for this secession, and went even further to declare in the United States Declaration of Independence that any government that did not uphold these fundamental human rights could legitimately be overthrown by the people. This created a further shift in power from Kings to commoners, where the powerful were all accountable to the general population.

The Australian democratic tradition was born yet another century later, and it combined aspects of both the English and American systems. A British Westminster system with a US style Senate of the people, with no Lords in sight. We may not have a Bill of Rights like the US, but we have at least culturally adopted the principles of all citizens in Australia having certain unalienable rights, including the right to hold our Parliament and Government to account. Ironically, centuries after the elite business class created a limitation on power of the King, we have ended up with a representative system that places limitations on the power of everyone, including businesses, to establish greater stability and prosperity.

In recent decades the Internet has rapidly further evolved the expectations and individual capacity of commoners through, for the first time in history, the mass distribution of traditional powers. With a third of the world online and countries starting to enshrine access to the Internet as a human right, individuals have more power than ever before to influence and shape their lives and the lives of people around them. It is easier that ever for people to congregate, albeit virtually, according to common interests and goals, regardless of their location, beliefs, language, culture or other age old barriers to collaboration. This is having a direct and dramatic impact on governments and traditional power structures everywhere, and is both extending and challenging the principles and foundations of democracy everywhere.

In summary, the Magna Carta remains an important part of Australian democratic history, but must be always considered in the context of subsequent influential documents such as the US Declaration of Independence, and the traditions that were adopted into our own unique democracy, which I would argue is an incredible blend of the British and American systems. Australia has one of the most open, least corrupt, and most representative democracies in the world, and it is always helpful to understand and remember how we got here. Largely through limitations on power and systems of accountability that can be traced, at least in part, back to the Magna Carta.

http://pipka.org/2015/03/08/technocracy/

Human rights in Australia: 800 years after the Magna Carta

Emeritus Professor Gillian Triggs

President, Australian Human Rights Commission

The Charter of Liberties, or Magna Carta as it later became known, was drafted by Stephen Langton, the Archbishop Canterbury, in an effort to avoid civil war between the King and his rebel barons. It was 4,000 words long and filled a whole skin of parchment. Notably, King John was probably illiterate and did not sign the document. Rather he attached his seal to it. Both the King and his Barons then swore oaths before a crowd of hundreds, the King to abide by the terms of Magna Carta and the Barons to give fealty to the King.

Within nine weeks of the sealing of the Magna Carta it was annulled by Pope Innocent III. The fragile peace soon broke down and by the following year, the King was dead.

  • How was it that this Latin inscribed sheepskin parchment became anything more than a minor foot note in English history?
  • Why is Magna Carta today recognized as the foundational document of English constitutional law and the symbol of liberty and freedom throughout the English-speaking world?

Magna Carta was not written by idealists or constitutional theorists. It was a practical document to solve daily problems of inheritance, wardship and marriage and to stop King John’s arbitrary money grabbing.

I believe Magna Carta has such potency today because of two seminal ideas that underlie Magna Carta. The first is that the sovereign, or in today’s parlance, ‘executive government’, is subject to the law. It was the written articulation of the idea that the King was, like his Barons, also bound by the law of the land, that explains the enduring power of Magna Carta.

The second important idea was the provision in the 1215 document in which the King agreed in order to raise taxes:

To obtain the common counsel of the kingdom we will cause to be summoned the archbishops, bishops, abbots, earls and greater barons… and all those holding us in chief- for a fixed date, namely after the expiry of 40 days and to a fixed place,… when the summons has been made, the business shall proceed.

Within days a committee of 25 was set up to oversee compliance with the Charter. The clause was later struck out, but the damage was done.

In short, Magna Carta was a revolution: it was described in the earliest contemporary account in the chronicle of Melrose Abbey as follows:

A new state of things [has] begun in England; such a strange affair as had never before heard; for the body wished to rule its head, the people desired to be masters over the king.

While parliament as we know it took many centuries to evolve, the idea of a common council to advise the king was sown.

It is about the vital role our parliaments play in protecting our ancient democratic liberties and rights that I would like to focus on in this blog. Over the last three years as President of the Australian Human Rights Commission, I have become increasingly concerned about the decline in the effectiveness of Parliament and diminution of the role of the judiciary and the corresponding increase in executive discretion that is all too often exercised without independent scrutiny.

While we rightly celebrate Magna Carta, the reality is that our freedoms are constantly under threat 800 years later. Under our constitutional system, any government that controls parliament can assume significant unchecked power. My view of democracy is that the majority should be constrained from abusing the rights of minorities. Power should be exercised according to the rule of law. Indeed, the danger of unchecked power is that governments are increasingly likely to assume that they are the law, paying lip-service only to the wider idea of the rule of law. The maxim remains true that ‘the price of liberty is eternal vigilance.’

Magna Carta has been used and abused by lawyers, politicians, and activists ever since to support every side of an argument. As our Chief Justice, Robert French, has observed,

Magna Carta has given many a plaintiff false hope in litigation before the courts.” (2015)

But it is also true that, after the historical revisionists have done their worst, Magna Carta means much more than it says. It has become a universal acknowledgement of principles that remain fundamental to modern democracies: the sovereign or executive government is not above the law and parliament itself is sovereign. Other legacies of Magna Carta include:

  • The right to a fair trial and access to justice
  • The idea that ‘punishment should fit the crime’
  • That laws should be written and made public
  • That widows should have their inheritance on the death of their husbands and not be forced to remarry
  • That the measure of a glass of wine or ale or a piece of cloth should meet an agreed standard.

It is not the technical provisions of Magna Carta that are most important today. The detail may be wrong, for Magna Carta did not establish trial by jury or the writ of habeas corpus. Rather it is Magna Carta’s iconic protection of the fundamental freedoms of life, liberty and property that informs my concern that the supremacy of the law over the executive is under threat in Australia’s contemporary democracy.

One example of the failure by modern parliaments to protect our ancient liberties includes that over recent years parliaments have granted to the executive excessive and unsupervised power to detain a person indefinitely without charge or trial. Two of the most enduring clauses of the Magna Carta are the promises by King John that:

No freeman shall be taken or imprisoned or stripped of his rights or possessions, or exiled, or deprived of his standing in any way, …except by the lawful judgment of his equals or by the law of the land. (Clause 39)

To no one will we sell, to no one deny or delay, right or justice.(Clause 40)

These words are the defining statements of the rule of law, setting limits on the arbitrary power of the state. They ring through the centuries and remain the bedrock for principles of justice we struggle to protect in the 21st century.

Another example is that Parliament has given ministers the power to detain indefinitely various classes of individuals, including refugees and asylum seekers, those with infectious diseases, those subject to mandatory admission to drug and alcohol rehabilitation facilities and the mentally ill. Some state parliaments have passed laws for “preventative detention” of certain “high risk violent or sexual offenders. Few have meaningful access to judicial review.

Detention powers of the Executive have also been expanded to detain asylum seekers and refugees indefinitely, powers that were found to be valid by the High Court in Al Kateb in 2007.

These are just a few examples of executive overreach, accepted by parliaments. And there are several more in the pipeline including counter-terrorism laws, restrictions on freedom of speech and association, invasions of privacy and punitive sanctions for those receiving welfare support.

Parliamentary restraint is especially important in Australia where we have an ‘exceptionalist’ approach to the protection of human rights. While Australia has played an active role in negotiating the human rights treaties they have typically not been introduced into Australian law by Parliament. Key treaties such as International Convention on Civil and Political Rights and Convention on the Rights of the Rights of the Child are not directly applicable by our courts, so that the Magna Carta probation on arbitrary detention is not part of our law.

Our Constitution protects the freedom of religion, the right to compensation for the acquisition of property and the right to vote, and implies a right of political communication…but very little more. As is well known, unlike every other common law country in the world, Australia has no Bill of Rights. We have very little human rights legislation other than the laws prohibiting discrimination on the basis of race, sex, disability and age.

But, it might be thought, as a last resort we can rely on the courts to protect our common law rights. Laws passed by parliament are not to be construed as abrogating fundamental common law rights, privileges and immunities in the absence of clear words. Our courts have, where possible, employed the principle of ‘legality’ to adopt a restrictive interpretation of legislation to protect common law freedoms. But in practice this has not proved to be as effective a protection as one might have hoped as many laws today are drafted with such precision or are constantly amended, so that ambiguities are increasingly hard to find.

In the Malaysian case, for example, the High Court found that under the Migration Act the Minister could not send asylum seekers to Malaysia as that nation had not ratified the Refugees Convention. The Government returned to Parliament to delete the offending clause.

Over the last 800 years, judges have continued to assert the rule of law against the executive. Time and again the High Court has limited executive discretion by reference to the principle of legality. Time and again the Government has been successful in asking Parliament to tighten up legislation to permit what was hitherto illegal.

We must ask ourselves ‘what then is to be done to protect democratic rights and freedoms in Australia?’

Celebrations of Magna Carta this year could reignite calls for some form of legislated Bill of Rights. Had we such an articulation of rights it would give greater scope for the courts to assess the validity of legislation against human rights benchmarks. Another option is to strengthen scrutiny by the Joint Parliamentary Committee on Human Rights.

I suggest that the most effective, if long term, solution is to improve our education of young Australians so they better understand and value the Constitutional protections for democracy and the rule of law. It is for this reason that Australian Human Rights Commission places a strong emphasis on education and has developed educational resources to explain the importance of the Magna Carta on its 800th anniversary. The resources include a short video, an interactive infographic and teacher resources (available at https://www.humanrights.gov.au/magnacarta/).

Our liberties depend upon an informed and committed community. The idea of a ‘fair go’ is understood by most Australians and, indeed, is probably as close to a bill of rights as we are likely to get. I place my trust in the Australian people to ensure that this quintessentially Australian idea is guaranteed to all of us.