The late Manning Clark, the great Australian and profound historian, disdained the Australian "worship" of the ballot box. In this, I believe he was both wrong and right.
He was wrong to see liberalism, electoral democracy and material progress as discredited goals of the 19th century. They remain deeply ingrained in Australia.
But his criticism of the Australian worship of the ballot box still has a point. The ballot box is not always a good protector of minorities. The ballot box can sometimes be an instrument to legitimise oppression by law.
The law in the first century of our federation was not always "unrivalled in its spaciousness and freedom" for Aborigines and other indigenous peoples. Nor for women. Nor for the old. Nor for the disabled. Nor for Asian Australians. Nor for other people of color. Nor for gays and lesbians.
Often it has required court decisions, and sometimes international intervention, to stimulate parliaments, elected by the ballot box, to defend minority rights. Unlike the majoritarian conception of democracy, Australians of today must appreciate that a modern democracy ensures an effective interaction between the will of the majority and the needs of minorities.
Until Australia has a bill of rights, it will lack the occasional constitutional corrective that stimulates and cajoles the politicians, answerable to the ballot box, into reflecting modern notions of pluralism and equality.
I know these things at first hand because, for most of my life, as a homosexual Australian, I have been oppressed by unjust laws. I do not doubt that had there been a constitutional bill of rights in this country, the reforms, slowly and sometimes reluctantly (and even apologetically ) enacted for homosexual equality would have come more quickly from the courts.
The courts would have upheld fundamental human rights to privacy, to equality and to full human equality and dignity more speedily. This is borne out by the experience of Europe.
Even today, basic equality is still denied to my segment of Australians. Governments and parliaments endorse or refuse to remove discriminatory laws. The ballot box
has denied us full equality, as it continues to do to several other minorities in Australia.
So, on this point, Manning Clark was correct to sound a cautionary note about Australia's self-satisfaction with the ballot box.
He was also correct in appreciating that the ballot box is just the beginning of any democratic process. Democracy is not about the game of elections. It is about true accountability of rulers and giving the electors real choices. In short, it is not about Tweedle-Dum and Tweedle-Dee.
The changing character of politics, the shifts of power and the demands of new media have all too often frustrated the carrying into effect of the assumptions of our constitution concerning the way the parliaments will function and the way the executive governments will be answerable to them. Sometimes actualities turn the letter of the law on its head.
And perhaps Manning Clark, the prophet, in his call to us to replenish the 19th-century notions of electoral democracy, was prescient beyond even his own understanding. Since his death in 1991, we have seen the ever-growing emergence of phenomena that make national parliaments, such as our own, relatively powerless in the face of global forces. This is so despite the ballot box. Such forces may include bodies like the World Bank, the World Trade Organisation, the IMF and so on. They are substantially impervious to the electoral will of our citizens.
Or they might include the sheer economic clout of transnational corporations, accountable to far-away shareholders and the Nasdaq, indifferent to local regulation. Or the vast complexity of global problems, like how to combat AIDS. Or how to regulate patenting of the human genome. Or how to make the slow-moving organs of the United Nations more accountable to the people of the Earth.
These global forces will not go away. They will shape Australia's destiny in the century to come. But we have to see our electoral democracy now for what it is in relation to global and regional forces.
The future, controlled by technology and economics, is probably not the libertarian place that Manning Clark dreamt of. But it is the only future we Australians are likely to have.
Now we must look out, as he taught, and see ourselves in relation to our region and to the world. Looking inwards and understanding ourselves and our history is no longer enough.
Michael Kirby is a High Court judge. This is an edited extract of his Manning Clark Lecture.
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