The end of democracy in Canberra

ISSUE 108, June 29, 2006:

Australians are fierce defenders of democracy around the world. But, writes PROF LARISSA BEHRENDT, maybe we need to start looking a little closer to home for evidence of its widespread abuse.

Democracy. It is so precious that we send one of our most valuable possessions - our Australian troops - to fight for it in Iraq.

Once the weapons of mass destruction that were the original excuse for the war did not turn up, we were fed the line from both our Prime Minister and the United States President that it was important that Iraq be free - and that meant that they should have the benefits of a democracy that we enjoy.

There are lots of elements that make up that democracy. There is the notion that there should be election by the people of their political representatives; there is the notion of the separation of powers (that the legislature, executive and judiciary should be able to act independently to keep check on each other and avoid abuse of power); there is the notion that you need to have protected rights like political free speech and an active and inquisitive media.

But a recurring and central notion in the idea of democracy is the idea that it is through the election process that representation is drawn and can be held accountable at the time of the next election.

H.L. Mencken, an American journalist, wrote in 1916 that 'democracy is the theory that the common people know what they want, and deserve to get it good and hard'.

We don't always like who gets elected and we certainly don't always agree with the policies and initiatives of the elected government.

But it is our right to disagree with them - in writing or through other forms of political free speech - and it is our right to lobby those parliamentarians during their terms, and campaign for or against them when we next go to the polls.

All this seems pretty straightforward - a basic summary of the basic notions of a healthy democracy. But, sadly, these simple notions have been lost in our national capital.

While the voters of Canberra elected a Labor government to govern their territory (they are a self-governing territory), the federal government has seen fit to interfere with the way in which they run things.

Jon Stanhope is the Chief Minister of the ACT and in early June his government passed a law that allowed for civil unions that would mean gay and lesbian couples could have their relationships formalised and legalised.

The legislation allowed for gay and lesbian couples to have similar rights and entitlements such as not paying stamp duty when transferring property between each other and being covered by the same inheritance laws.

Because it is a territory rather than a state, the ACT is subject to additional interference from the federal government because the constitution gives states the right to determine matters but retains substantial power over Australia's territories with the federal government.

Why is it that the federal government feels the need to interfere on this matter?

The federal Attorney General always has a quick answer up his sleeve and he argued that the Civil Unions Act infringed on the federal government's powers to make laws about marriage.

Civil unions do not have the status of a marriage and many legal commentators have expressed the view that there is no infringement on the marriage power.

The opposition to the laws are better explained by their close connection to homophobia than they are to any sense of protection of the federal government's power.

Cardinal Pell criticised the law because it recognised gay and lesbian relationships.

He said that he 'was not in favour of homosexual marriages because I think that it threatens the status of a marriage between a man and a woman... That's undoubtedly the best protection for the spouses and the best protection for the next generation.'

However, Dr Helen Watchirs explained that the legislation was not about marriage but was an important step towards equality for gay and lesbian couples.

She stressed that the legislation did not go as far as civil marriage but was about getting some recognition for the status of relationships so that gay and lesbian couples were not treated as second-class citizens.

She also said the legislation aimed to ensure that prejudice against gays and lesbians was not reinforced by law.

In the second reading speech for the legislation, Mr Stanhope makes the distinction clear: 'A civil union is not marriage but will be treated in the same way as marriage.... It will give couples functional equality under ACT law with married couples but does not replace or duplicate marriage.'

This exercise of power was so undemocratic that even the Liberal senator from the ACT, Gary Humphries (himself a former Chief Minister of the ACT), crossed the floor when the matter was voted on.

He had said, '... any step which takes away from the ACT the capacity to execute decisions based on the democratic process if a very serious, very regrettable step.'

Humphries went on to say that he couldn't support his colleagues in the Government who made that decision. His leader played down the extraordinary break in ranks that Humphries showed by voting against his own party.

Howard noted that Humphries was a 'good colleague' but stressed that the important thing was that the result was the one that Howard wanted.

In other words, the important thing was there were enough homophobes in the parliament to ensure the legislation passed without need of Humphries' vote.

'It's the outcome that matters in these things and it was the right outcome,' the Prime Minister said.

Over-riding the democratic process in the ACT is not a good outcome.

Whatever you think of the issue - and I personally see no reason that an intimate choice of life partner should not be acknowledged, celebrated, formalised and legalised - Jon Stanhope had the issue of civil unions on his agenda as part of his re-election platform.

The people of the ACT knew that when they decided to vote for him and if they do not like his track record, they can vote him out next time they go to the polls.

This is where the federal government should have left it.

Former Shadow Minister for Indigenous Affairs, Bob McMullan - whose electorate of Fraser sits in the ACT - best summed up the actions of the former Minister for Indigenous Affairs and now Attorney-General Phillip Ruddock when he called it 'outrageous, high-handed, arrogant, offensive...'

American politician Alfred Emanuel Smith once said that 'all the ills of democracy can be cured by more democracy'.

Not only does that mean that the people of the ACT can think about Jon Stanhope's track record at the next ACT election, the federal government's penchant for anti-democratic behaviour should also be remembered when they next go back to the Australian people.

What's 'new' about Abbott's paternalism?

I wonder who was advising Tony Abbott, the Health Minister, when he thought that he would package up his latest big idea by using the term 'paternalism'?

The word sends a cold shiver down the spine of most Indigenous people, as it reminds of us the darkest days of the colonisation of Australia.

So it was clear that Abbott's comments were designed to show how 'tough on the blacks' he could be rather that any attempt to reach out and engage with Indigenous people.

When first being told of Abbott's statements, I heard many Aboriginal people say that at least he was being honest.

Ever since the government abolished ATSIC, Aboriginal people have been leaving the federal public service as we return to the era where white people are making policy for black people.

But more than a poor public relations exercise, the notion that more paternalism is the way to go is simply a bad idea. And it is fundamentally a bad idea for two reasons:

- all credible research points to the fact that you need that to have Aboriginal involvement in policy-making and program delivery if you want to get results; and

- one of the fundamental problems with the mission manager approach is that it fails to foster capacity within the Aboriginal community. By treating Aboriginal people as though they are children, they remain dependant. And that isn't going to be a long-term solution to anything.

The fact that Abbott is the Minister for Health adds an element of irony to his comments.

It has been estimated by Access Economics that government funding on Indigenous health falls short by over $450 million. In a year with a record budget surplus, this enormous need remains neglected.

The debates about how to best deal with dysfunctional communities are in fact discussions about how to deal with the results of under-funding of essential services, the failures to provide adequate infrastructure and a lack of investment in human capital.

They are debates about institutional neglect.

It continues to be a constant source of frustration that government's with plenty of money to spend will not make a commitment to meet their responsibilities to Indigenous communities.

The sad thing is that these kinds of comments that focus only on our most dysfunctional communities mean that many people are left with the impression that most Aboriginal communities are basket cases.

I was recently interviewed on New Zealand radio and the interviewer was genuinely surprised to learn that there were Aboriginal communities in Australia that were cohesive, functional, closely knit and doing great things despite policy failures and lack of funds.

'Really? We never hear about those,' she said.

Well, unfortunately, neither do many Australians and this leaves the erroneous impression that we are all incapable of finding the solutions, building capacity and showing leadership.

* Larissa Behrendt is a Professor of Law and Indigenous Studies at the University of Technology, Sydney. She is a fortnightly NIT columnist and writer and the author of the multi-award winning novel Home.