Can courts teach parliament?

Not a silly question because courts and MPs do related work; both settle disputes about the law. Courts settle our disputes about what the law is, whether people are breaking laws. MPs settle our disputes about what the law should be, whether laws are breaking people. Parliament is our courthouse when it’s the law itself that’s on trial. Our courthouse when the law itself is accused of stupidity or waste, ignorance or sloth, spite or bias. Or abuse, neglect, deception, intimidation, fraud. When the law assaults, robs, maims or kills. When we say it’s criminal what this or that law allows.

We stretch the language by speaking of the law as a person who can be accused of doing wrong, put in the dock. It’s a good stretch though. Much law-making is delegated to persons, the ministers and officials we obey. The law is our ruler; that’s what we mean by the rule of law. Many rulers – kings and queens, dictators and tyrants over the centuries − have stood in the dock, climbed the scaffold.

We have found less bloody ways to change the law but still require a process for deciding whether a law is a good law or a bad law. Something like a trial in something like a courthouse.

Though our trust in courts is not perfect, courts go about their work in ways that we comprehend, that seem reassuring and natural. Natural to the extent that young children demand a court-like process when parents sit in judgement on their disputes: a timely hearing, promises to be truthful, reliable evidence, cross-questioning, rejection of hearsay, punishment for lies and refusing to answer, severe punishment for witness tampering, that sort of thing. Not that MPs need be told any of this; they were children once, have also watched more courtroom drama on TV than is healthy, demand due process when personally accused. That’s not the point. Rather, our shared knowledge of court procedure is a lens through which we can more clearly see and analyse our frustrations and disgusts with MPs and parliament. We share knowledge that arms us with procedural insight, poses sharp questions about parliamentary procedure, gets us thinking about reform.

One: surely the constitution lays down rules for parliament to follow? Nope; the constitution is hands-off on rules. It leaves MPs to write their own rulebook, what they call parliament’s ‘standing orders’. With one important exception; our constitution says that parliament must decide all matters by majority vote, including the suspension of its rulebook. Thus, each house is controlled by the factional alliance with the majority in that house. Elections are contests for the control of parliament, a crucial difference between courts and parliament. Judges control courts, not the side – accuser or accused – that hired the most lawyers.

Two: should not parliament’s Speaker be more like a judge, the assertive manager of parliament’s proceedings when some law stands accused of breaking people? Such a Speaker would schedule timely hearings for all charges, dismiss frivolous and ill-prepared charges, deny trial by ambush (order pre-trial disclosure of evidence), exclude tainted evidence and hearsay, keep the questioning and cross-questioning relevant, ruthlessly insist on answers and civility. Parliament’s Speaker is currently the pale shadow of such a judge, basically charged with timekeeping and giving both sides roughly equal opportunities to abuse each other. And never above suspicion even in that weak role, having been appointed by the side that hired the most lawyers.

Nothing prevents MPs from greatly strengthening the Speaker’s role and putting distance between the Speaker and factional politics.

Three: how does parliament ensure that every charge is tried separately, on its merits? We know how separation is achieved in regular courts: discharge the jury when a trial is done; summon a fresh jury for the next trial; put judges on a roster; choose legal services from a multiplicity of legal firms; prohibit improper contact with jurors, witnesses and judges; no mass trials or collective punishments. We also know why; constant re-jigging prevents the various players getting too cosy with each other. Constant re-jigging makes it difficult to do deals of the kind … I’ll go easy on your burglar, you go easy on my fraudster, and we both go 50:50 on this wad of $100 bills. In that light, parliament looks suspiciously cosy.

Suspicious because new governments replace the Speaker with one from their side. Suspicious because, often, only a handful of seats change hands on election day, every three years, such that there is infrequent and surprisingly little refreshing of our MPs (our jurors), as a parade of laws take their turn in parliament’s dock. Suspicious because these long-term MP-jurors, these stagnant juries, try all the accused in the semi-secrecy of party rooms and the corridors of power. The real trials play out in these ‘shadow parliaments’, from which MPs emerge to vote the party line in parliament proper. Suspicious that this combination of stagnation and secrecy permits and encourages improper contact, just part of the MP-juror’s job. Suspicious that verdicts to acquit and condemn – to shackle good law, to set bad law loose again – are readily horse-traded by political factions.

Again, whatever the processes of party rooms, whatever happens in the corridors of power, nothing prevents MPs coming into parliament proper and conducting a proper trial. All in public, such that voters can judge their MP’s judgement. Some reformers would have MPs summon ordinary citizens to jury service in parliament. Parliament’s jury would then be constantly refreshed, each law tried separately before a new jury, as courts have long done. Shadow parliaments and too-cosy parliaments would then be subject to the discipline of arguing their brief to a large and representative sample of ordinary citizens, face to face, respectfully.

Four: in disputes with the majesty of the law itself, ought not ordinary citizens have a parliamentary version of the class action procedure? In regular courts, class actions allow large groups of citizens – as victims of unfair business practices, as duded consumers, duded shareholders or workers – to jointly challenge powerful corporations and agencies of government. Complex and costly challenges that few ordinary citizens could pursue separately – for example, to accuse privacy protection law that fails to protect privacy, accuse aged care that fails to care for the aged, accuse ministers and public officials of incompetence or corruption. Class actions provide the many with legal access that is otherwise the privilege of the few.

A class action needs an organiser; someone to analyse the claims, scrutinise the evidence, assess the damages, identify and count the victims, propose remedies, calculate chances of success, deal with the legal paperwork. Someone like the Director of Public Prosecutions, the official who, on behalf of the mass of ordinary citizens, organises to lock up criminals. Likewise, when the law itself is accused, some official or commission needs to do the organising on behalf of ordinary citizens.

Some investigative and analytical machinery already exists. The ALRC (Law Reform Commission) has nearly 50 years of relevant experience but, currently, cannot investigate matters without a reference from the Attorney-General. It could be let off the leash. Other watchdogs – the ACCC (Consumer and Competition Commission), NMHC (Mental Health Commission), AFSA (Financial Security Authority), and many more – could be charged to pay equal attention to people breaking laws and laws breaking people. The many agencies of government could make themselves more accessible to ordinary citizens, listen more closely for the sound of laws breaking people.

It’s not that we don’t already have class action organisers who deal with complaints against the law itself; parliament is awash with them. MPs are our class action lawyers when laws break people, professional brokers of access to parliament’s schedule of hearings. Ever helpful, MPs have organised themselves as political parties, each specialising in certain types of complaint. You must hope that your case is a nice fit for a party’s political strategy; brace for the reflexive hostility of other parties; further hope that your party wins government; worry that you have been milked for political donations and votes; pray not to have been a stalking horse for unseen agendas. This politicking is an insurmountable obstacle for most of us, a frustrating and unfair barrier to fair and timely hearings in parliament.

Five: surely elections are all the due process that democracy needs, a fulsome substitute for parliamentary due process? Not if we take due process seriously. Election campaigns are plainly not the occasion for the timely and dispassionate hearing of all accusations against the law, for calmly presenting and testing all the evidence, for listening to experts, for the discipline of questioning and cross-questioning. It is enough that elections select one or other side to be the majority that decides every case that comes before parliament. But too much that those majorities also decide which cases will be heard, too much that any case may be denied a hearing because it discomforts the majority, or evidence suppressed because it discomforts the majority, or debate cut short because it discomforts the majority.

Sound electoral process and parliamentary due process are not substitutes for each other; they are complements. They make a good team, like coffee and cream. MPs would decide differently, more justly, if bound to sit patiently through parliamentary trials that fairly hear accusations against the law, court-like. On election day, voters would be better placed to reward MPs who judge fairly in response to fulsome evidence and debate, to unseat MPs to whom natural justice seems not to come naturally. Elections would thus grow more discriminating, carry more authority.

Politicians aspire to brute parliamentary power but, gutless, never test the legitimacy of such power at an election. They never consider how voters might respond to the promise of a parliamentary rulebook that, while leaving the majority to decide each case, accorded basic rights to parliamentary minorities. Voters might see the justice in granting a parliamentary hearing wherever some reasonable sub-majority of MPs agrees – say, 25 per cent. Voters might see the justice in binding MPs to vote parliament’s agenda in secret, alone with their conscience, unsupervised by factional bosses. Voters might see the justice in being asked directly what parliament’s priorities ought to be.

Six: would all this due process slow government down? Most likely, it speeds government up. Courts teach parliaments that due process and natural justice are our best shot at settling disputes decisively. Courts make mistakes but can right their wrongs in appeals and retrials. Win or lose, we get on with our lives. None can like all judgements but, given due process, must be content to have been fairly heard and impartially judged, satisfied that justice has been done and seen to be done. The decision done, the parties parted, the fighting finished.

But not when the case is before parliament, the law itself on trial. Ascendant factions push their law-making through parliament but, without due process, their changes lack legitimacy. Such that their achievements are often added to the matters to be reversed when the subordinate factions next win an election. Taking the long view, parliament dithers: decisions never done, the parties never parted, the fighting never finished. Parliament is an unending parade of appeals and retrials, a growing pile of unfinished business and business unstarted. Our dithering parliament overloads our elections, overloads our public conversations, strains our tolerance.

Seven: ought parliament provide written judgements to explain its verdicts? As judges do in courts, rehearsing and weighing the decisive evidence, endorsing sound claims, laying false claims to rest, listing unsettled claims that need further work. Written judgements invite scrutiny of the judge’s legal reasoning and assessment of the evidence, a basic courtesy to the contending parties, an acknowledgement of the loser’s right to appeal, an acceptance that judgements should be cross-checked for consistency. The discipline of written judgements would similarly hold politicians to account.

Last: Regrettably, it’s true, only parliament can reform parliament. Reformers can do no more than prepare the ground, which they have done well; MPs will be spoilt for choice when reform gets serious. Voters can do no more than apply the requisite pressure to their MPs, which we have yet to do.

But we’ll know parliamentary due process when we see it, because proper courts show us how due process works. Then will we have both equality before the law and equality before the lawmakers.



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