Checks on a government

Is it a problem with the system if the government is passing laws that you don’t like? It’s not hard to find government policies that lots of people disagree with. In fact, you’d be surprised to find many that approach universal approval.

The simple fact is that after each election, more than 40% of the electorate will have voted for a party which has quite a different policy platform to those which end up forming a government (and that’s not to mention disgruntled supporters of the parties which do win being dissatisfied with what they do in power).

As annoying as that is to that significant portion of us, though, it’s ultimately a feature, not a bug, of our constitutional setup. Once a democratically elected government can command a majority in Parliament, our system isn’t really set up to stop those in charge from enacting the policies they want.

For all you might hear about checks and balances within the system, none of them can force a government to do anything.

Let’s quickly run through these potential checks on government power.

Parliament? Sure, there need to be multiple readings of each bill a government wants to pass, there need to be select committee hearings, but ultimately a government with a majority can pass whatever it wants without taking on any of the opposition’s objections (there’s a reason being opposition leader is seen as the worst job in politics).

The courts? If you can afford it, you can judicially review a wide range of government decisions. But you can’t just go to court and say you think a decision is bad and so it should be scrapped.

The courts will step in only if the government got the law or process wrong, and even then it can correct its error, then make an almost identical decision again.

What about independent investigatory bodies like the Ombudsman or the auditorgeneral? They do have really significant investigatory powers, but ultimately their findings are (with a few narrow exceptions) not binding on a government.

The news media, too, is a big player in government accountability. But as much as a government hates bad headlines, those, too, can’t force it to change its mind.

So if none of these institutions can stop a government doing what it wants, are they pointless? Is this a problem with the system?

I don’t think so, and in fact I don’t think this is what they’re designed to do, anyway. A government is elected to govern. It has a democratic right to do so. But – and here’s where the institutions come in – it’s not there to govern for its own benefit.

It governs for us.

In my view, one of a government’s primary obligations is to continually explain and justify its use of power to its citizens. We’re not mere legal subjects; we no longer accept ‘‘because I said so’’ as a reason for obedience. And the institutions I just mentioned are really good at making a government explain itself.

The opposition grills a government through multiple readings of legislation in Parliament. Judicially reviewing the government forces it to turn up in court and explain how it got the law right (if it did) to an independent judge.

The Ombudsman and auditor-general’s investigations absolutely allow them to demand a government explain itself, and their reports can make public what those explanations are.

A government also clearly sees itself as obliged to explain itself to media; the existence of the press gallery and regular press conferences show that.

Combined with fine investigatory work done by journalists and the creaky but still functioning Official Information Act (OIA), the press performs an invaluable role in getting a government to explain its reasoning (whether it entirely wants to or not).

I said at the outset that as annoying as it can be, the passing of laws we disagree with is simply a feature of democratic government.

What I do think we should all legitimately get angry at, whether we like what any given government is doing or not, is when a government tries to get around the parts of our system which make it explain itself.

Things like the overuse of urgency in Parliament. OIA shenanigans. Making certain decisions immune from judicial review. Absent or inadequate consultation. Cynical media management to avoid explaining things a government finds embarrassing.

It’s easy to dismiss this as process stuff that only nerds and lawyers (guilty!) care about. But when a government doesn’t explain itself, it makes it almost impossible to understand what it is doing, why, and whether that will affect our vote at the next election. And that can’t be dismissed as just process.