Westminster democracy and illiberalism

Cam Riley doesn’t like the new “Bikie Laws” in South Australia.  He quotes Gary Sauer-Thompson, who says:

My understanding is that under the legislation … the Attorney-General has right to call an organisation, which could be anything from an informal group of people who meet at the local pub for a weekly drink through to a football club or a business, a Declared Organisation. The Attorney-General can use secret and untested evidence in making that declaration, and his decision can’t be challenged in the courts.

… Severe penalties are then visited upon controlled members who continue some form of contact, even remote contact by post, fax, phone or e-mail – two years imprisonment for a first offence, five years for a second or subsequent offence.

I agree with Cam and Gary.  This is illiberal and unnecessary.  The law is ostensibly to combat criminality in gangs of bikies, but every element of that criminality is already illegal.  It’s already illegal to conspire to commit violence, or to trade drugs.  So the net effect of this legislation is simply to grant the Attorney-General the power to disallow any organisation that (s)he doesn’t like.  Cam points out that the “emergency” laws enacted in NSW following the Cronulla riots are still on the books.

My question is this:

Why do these laws get passed now when they (probably) wouldn’t have been passed following equivalent crises 100 years ago?

It seems obvious that the legislature has a political incentive to be seen doing something, as time in the media’s spotlight is currency to a politician.  It’s common to suggest, although not universally accepted, that the sharp end of the executive (i.e. those charged with enforcing the law) generally wish for more options in carrying out that enforcement.  In a Westminster system of the executive having a controlling influence in the legislature, that would imply inexorable movement towards illiberalism over time as exogenously-sourced crises occur.

So how has liberalism survived for so long in the Westminster tradition?  What, if you’ll excuse the pun, arrests the movement to a sort of democratic dictatorship?

2 Responses to “Westminster democracy and illiberalism”

  • Good question, but there is the problem of prior illiberalism with white australia, and before that slavery, all of which were over come by both moral and liberal politicians and political sentiment. I think Ken Parish comments on the Fijian constitution that it seemed reasonable and nothing that would lead to the current disorder, so the constitution itself isnt the issue in that case. I also recall reading a book on the US Supreme Court and was shocked how political most of their decisions were, they were all within what was politically achievable at any one time and mimicked broader political feel.

    I think what is different to previous eras is enfranchisement is nearly universal now. It used to be male, and before that it was aristocratic, so a small group of moral liberalists could sway legislation in a positive manner, such as doing away with slavery. Now it has to be done within a broader political constituency and Daily Telegraph style illiberalism and populism does have an audience. There is also the issue of executive power seeks to maximize that power at all times, or at least reserve the right to maximal power. Westminster has always had that and has operated in exception without breaking constitutional bounds. It is more difficult to do that in the Washington system because of its stronger separation of powers, and when an executive does it, it becomes obvious, yet there are still examples of operating under executive exception in the Washington system as well.

    Tough question.

  • Your first paragraph would suggest occasional movements towards illiberalism with less-frequent-but-larger movements back towards liberalism. Is that observed in the data? (I’m not a student of political history, so I have no idea)

    Your second paragraph indirectly raises the idea of the “rise of the media” (god, I hate that phrase) and electoral populism. Certainly without it the legislature would have less incentive to react to every event by passing new laws. This was my first thought, too, but I’m pretty sure that MPs have always been populist relative to their electorate and cared about the newspapers since the day they printed the first one.

    So instead, perhaps you’re right to highlight the changing make-up of the electorate. We don’t even need to argue that the typical voter today is less educated than the average voter was before enfranchisement (although that might conceivably be true, it seems a bit unpalatable to me). Instead, we might focus on the fact that the act of enfranchisement was one that brought those with less power in day-to-day life into the electorate. In other words, irrespective of the distribution of education, enfranchisement served to lower the average day-to-day influence of the median voter.

    If we further assume that a person’s sense of vulnerability is positively negatively related to their power in everyday life, then the process of enfranchisement served not only to bring the electorate closer to 100% of the population (the young and the incarcerated being still left out), but also to make the median voter feel more vulnerable to any given crisis. Which would then — perhaps — explain why a populist politician today would seek laws to “protect” people more readily than they would have a century ago.

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