01/04/2003 - 22:00

State Scene - An executive decision

01/04/2003 - 22:00


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TWO Saturdays ago a conference was held in the WA Constitutional Centre, one of the historic buildings on the hillock behind Parliament House.

TWO Saturdays ago a conference was held in the WA Constitutional Centre, one of the historic buildings on the hillock behind Parliament House.

The conference was convened by the Australian Association of Constitutional Law (AACL) and hosted about 50 people.

Far and away the majority of Western Australians knew nothing of a gathering that dealt with an issue directly affecting all citizens.

Soon after, an MP’s minder revealed he’d learned of it only on being asked to prepare speech notes for an invited speaker.

So who participated?

Well, there was the Premier Geoff Gallop, his conservative counterparts Colin Barnett and Max Trendorden, and Greens MLC Dee Margetts.

Interestingly, no One Nation MP delivered a speech or panel comments. But former Nationals leader Hendy Cowan presented an excellent critique of excessive executive power, without suggesting remedies.

Legislative Council president John Cowdell participated, as did Labor minister John Kobelke, who, in 1990, chaired a joint select committee on WA’s Constitution.

So did former Legislative Council president George Cash, Kimberley MLA Carol Martin, Attorney-General Jim McGinty and his counterpart, Peter Foss.

There were also three academics, two judges, and Malcolm McCusker QC, who chairs the WA Constitutional Centre board.

The participants, therefore, comprised much of WA’s politico-legal power elite, none of whom has advocated fundamental restructuring of the State’s executive-dominated Westminster system of governance.

That said, it’s interesting to note two who were not invited to speak.

One was Emeritus Professor Martyn Webb, long-time colleague of the late Associate Professor Patrick O’Brien, who together advocated fundamentally democratising WA by ensuring executives (cabinets) became servants of legislatures (parliaments), not vice-versa, as is currently the case.

They jointly authored a pathfinding book titled The Executive State.

Professor Webb has also published a democratic constitution for WA, which was tabled with the 1990 Kobelke committee, and several other books and papers on the known limitations of the Westminster system of executive domination, which the WA inc days so starkly showed was flawed.

And there’s WA Democrat Senator Andrew Murray who, like Professor Webb, strongly advocated a democratic path for Australia at the 1998 constitutional convention by instituting an elected presidency.

Since then he has edited and published an excellent book titled Trusting the People: An Elected President for an Australian Republic.

Like Professsor Webb he’d have told the meeting on why having elected, rather than undemocratically selected, State governors would help to dramatically democratise WA’s political and legal orders.

You’d have thought both would have been welcomed to outline their fundamentally different, but democratic, perspectives.

They could have taken discussions beyond mere tinkering about with WA’s flawed and out-dated institutional politico-legal arrangements, which certain people so doggedly wish to preserve.

Convening a fundamentally like-minded elite is neither a smart nor productive way of ensuring real constitutional reform eventuates.

If WA’s constitution is to ever be reformed along democratic lines, such counterproductive efforts by our politico-legal power elite will need to be ignored.

Little wonder so few believe WA is likely to ever move in directions that both advocate – a bill of rights; clear division between legislature (parliament) and executive (cabinet); citizen initiated referendums; and elected governors.

And what about parliamentary ratification of judicial and other senior appointments?

Interestingly, shortly before the latest election, Dr Gallop promised a referendum on WA having elected governors.

Now that he dominates the power elite the premier’s adamantly refusing to honour his pro-mise, belatedly realising that the undemocratic colonial hang-over is a crucial pillar upon which the executive State he backs rests.

Constitutions can be variously changed, including by parliaments, with or without reference to the people at referendums.

Bitterly factionalised and caucused conventions, such as Prime Minister John Howard convened in 1998 on the republic/ monarchy imbroglio, can be convened.

Another way, one State Scene hopes eventuates in WA, is the establishment of a panel, like the 1991 Commission for a Democratic South Africa (CODESA).

Such a commission would be made up of democratically dedicated experts who would be given strict guidelines authorised at referendum calling upon it to draft a democratic constitution.

It would be one in which executive power was limited and the will of the people enhanced through a bicameral parliament in which party and cabinet controls were institutionally removed.

At the end of that process the constitution would require a multiple-choice referendum for acceptance.

Launching the CODESA, President Nelson Mandela said: “Today will be indelibly imprinted in the history of our country.

“If we, who are gathered here, respond to the challenge before us, today will mark the commencement of the transition from apartheid to democracy.”

If WA followed this path a future democratically minded premier could equally proudly say …“today will be indelibly imprinted in the history of Western Australia.

“If we, who are gathered here, respond to the challenge before us, today will mark the commencement of the transition from executive government to democracy.”

It’s time the AACL and WA’s Constitutional Centre started promoting deeper assessments of constitutional issues. Shallow opt-ions aren’t good enough.


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