‘Chaos of the Demos’ - WAS ANCIENT ATHENiAn democracy MORE DEMOCRATIC THAN AUSTRALIA?

The classical ‘Athenian democracy’[1] has often been romanticised into a descriptor for a Golden Age long lost. It has been considered a society where people were represented fairly and equally on the matters of government.[2] In contrast, statistics have revealed the Australian voting public believe their system does not represent the people, and elected officials do not address the interests of voters.[3]

This paper will comparatively analyse the classical Athenian and Australian democracies. It will be contended the Australian system lacks in some democratic elements, but is more suitable to modern society. The paper will conclude noting that the Australian system is a more efficient system than what a ‘more democratic’ system could provide. Legal recommendations will be suggested to enhance democratic processes.

II    Definition of Democracy

The common dictionary definition of democracy is ‘a system of government in which all the people of a state or polity ...are involved in making decisions about its affairs, typically by voting to elect representatives to a parliament or similar assembly’.[4] It is described as a ‘government by the people’, focusing on the ‘rule of the majority’. The ‘supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.’[5]

It is possible to, according to Professor Larry Diamond,[6] deduce four elements common to any form of democracy: ‘1. A political system for choosing and replacing the government through free and fair elections. 2. The active participation of the people, as citizens, in politics and civic life. 3. Protection of the human rights of all citizens. 4. A rule of law, in which the laws and procedures apply equally to all citizens’.[7] Diamond explains that while there is a lack of consensus on what democracy actually is, it seems that all forms of democracy at least share these broad characteristics.[8] This paper will use these elements in the following comparative analysis to underpin the discussion.

IV    Comparative Analysis

A    Representative Government Through Fair and Free Elections

Australia’s government is representative of the people in that politicians are elected, ostensibly, on the basis of their (or their party’s) policies. Pre-election, candidates present policies to their constituents. A voter finds common cause with a candidate’s initiative, and votes for them in a general election so they can implement their electoral mandate. If elected, the officials are appointed into government for a fixed term of service. Contrast this to Athens, where citizens became part of the Assembly (ekklesia)[9] and Council (boule)[10] through either direct participation or, in the case of select administrative officials, via lottery.

1 Athenian representation vs. Australian representation.

A common criticism of the Athenian dēmokratía[11] was the narrow definition of who could take part in the Assembly or Council, and also be elected. To vote within the ekklesia, one was required to be a citizen. To be a citizen, one was required to be a free Athenian male over 20 (not a slave), have completed their compulsory military training,[12] and be of common Athenian ancestry. This narrow definition of ‘citizen’ excluded the majority of the population: women, children, slaves, freed slaves, and foreign inhabitants.[13] This left 10 - 20% of the population eligible for citizenship from 250,000 inhabitants, leaving approximately 30,000 able to vote.[14]

Within the boule, 500 members were elected via lottery. The Athenians considered elections to be aristocratic or oligarchic in nature.[15] As observed in Australian elections, the more well-funded, resourced and organised candidates are often elected into government. Athenians sought to negate this problem by using the chance of lottery.

This naturally creates problems of representation. It prevents any one person being elected via popular mandate and competence. This seems contradictory for a relatively meritocratic society such as Athens. Merit, civic duty, and political philosophy were the basis of Athenian philosophy, which has influenced much of Western society today.[16] To discard this in favour of random elections seems counter-intuitive.

In Australia, while the election process is much slower and expensive, voters can elect officials based on policies. Politicians typically align themselves within a political party of similar interests. This allows Australian citizens the option of not only electing an official with similar interests, but an entire bloc of like-minded officials into parliament.

The Athenian system did not revolve around representatives. Citizens could vote directly within the Assembly on any issue raised. Officials simply moderated the course of discussion. Voting was by raising hands and decided by majority.[17] In this sense, their system was directly representative and is advantageous over the Australian system; an Australian politician has no legal requirement to act on electoral promises once elected without much consequence. Conversely, it also allows them to respond to changing circumstances and raise legislation or policies in response to unforeseen changes.

2 Ostrakismos

One method of preventing abuse of the powers of the Assembly was ostracism (ostrakismos).[18] This was the banishing of unduly popular leaders for up to ten years, if the minimum number of votes was found.[19] Ostrakismos was an attempt to prevent what arguably exists in Australia today; that self-interested figures could seduce ‘the people’ into choosing leaders who had no interest in ‘the people’ except for abusing ‘the people’.[20] Ostrakismos was designed to defend democracy against ‘democratic excess’.[21] This was imperfect, as ostrakismos still required the intent to implement the procedure and the minimum number of votes. It could also be abused by vote rigging, to remove political rivals.

While the Australian system does not allow for a direct representation of each voter’s interests, it arguably represents a greater portion of the population with its electoral system. It is advantageous over Athens, as women, children, slaves and metics did not have representation. It is also less likely to be swayed by the emotional ‘tyranny of the majority’.[22] Though less adherent to the element of representative government through free and fair elections, the separation of powers, electoral system, and constitutional safeguards, prevents the greater uneducated population from making emotional decisions that are not representative of the nations’ interest.[23]

B    The Active Participation in Civic and Political Life

1 The atimia vs. apathetic citizenry in Australia

The demos[24] of Athens were strongly encouraged to participate in civic and political life.[25] Athenians inactive in political life were viewed with contempt, with Pericles declaring ‘…do not say that a man who takes no interest in politics is a man who minds his own business; …say that he has no business here at all’.[26]

It is arguable that Australians are disconnected with civic and political life. Governing power is centralised, rather than relying on direct participation like the Athenians. Other than compulsory voting for elections, Australian citizens are not actively encouraged or required to partake in civic and political life. The atimia[27] system of Athens was a direct way of ensuring participation.[28] There are no active consequences for Australian citizens to be apathetic towards political life, other than a required vote at federal and state elections.

The Commonwealth Electoral Act 1918[29] makes it compulsory to register to vote for a federal election.[30] This does not force a voter to make an educated vote, however – a voter can opt to make the choice of not making a choice by blank voting. This encourages individual freedom in a democracy, but does not actively encourage meaningful participation so much as ensuring the democracy continues. This can cause skewed electoral results, subverting the nation’s democratic interest. Without an active interest in politics and civic life, complusory voters are much more likely to vote against the nation’s best interest, through methods such as blank voting or for minority parties as a form of protest.[31]

2 Institutionalised ‘Mob Rule’

Plato believed there are people of equal and unequal station in life due to better education, resources, money, etc. Far from elitism, he believed that those better educated are likely to have a more nuanced view of what better represents society’s interests. He criticised the demos having a forced involvement within political life, as the uneducated majority can cause a ‘mob rule’ that can lead to oppressive and detrimental decisions within the democracy.[32] Plato summed up his beliefs of democracy in his dialogue, The Republic,[33] by stating ‘[d]emocracy, …is a charming form of government, full of variety and disorder, …dispensing a sort of equality to equals and unequaled alike.’[34] Thucydides[35] agreed, noting that the common people were often too uneducated about even the most basic of issues to be allowed to participate directly.[36]

The author suggests that ‘mob rule’ is institutionalised within Australian parliament itself. As voters elect politicians into power, the party system of government allows politicians to make alliances between parties and overwhelm important minority interests. Much of this is simply for political expediency. This is demonstrably worse than Ancient Athens. The Athenian system implemented preventative methods to prevent ‘mob rule’, like ostrakismos, whereas the Australian system has not, barring election or criminal charges.

C    Protection of Human Rights For All Citizens

1 Athenian protection and the execution of Socrates

Athens’ approach to human rights was primitive in comparison to today. Only Athenian males could be classified as citizens, and receive the full benefits of Athens’ democracy. Women, slaves, foreign inhabitants, etc. were excluded. The fact that Athens exploited slaves, and excluded a large proportion of its population from the full benefits of its system, shows a marked lack of regard for human rights.[37] The citizenry was not guaranteed protection of their individual liberty and/or human rights. Rights that are considered essential today, such as a fair trial or freedom of religion, were often overlooked depending on ‘the general feeling’ of the Assembly members or jurors. One example is the trial of Socrates.

Here, the unchecked emotional outrage of the Assembly convicted Socrates of corrupting Athens’ youth.[38] This outrage was fuelled by Socrates’ religious beliefs and his public criticisms of the Athenian invasion of Sicily. Clearly, the Athenian democratic system could result in the violation of human rights as easily as any other non-democratic system. As Samons highlights, democracy is no more likely to better govern than other forms of government; ‘[The] execution of Socrates … [seems] to discredit the ubiquitous modern idea that democracy leads to good government’.[39]

2 Australian protections: the principle of legality and a lack of bill of rights.

The common law principle of legality requires all law to be clear, ascertainable and non-retrospective. It was first applied in Australia in 1908 in Potter v Minahan.[40] Brennan J concisely explained the rationale behind the principle in Re Bolton, Ex parte Bean[41]: ‘Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will construe a statute as having that operation.’[42] If the Parliament wishes to override a common law freedom, it must expressly do so within the statute. [43] This still allows the legislative avenues to pass laws in violation of human rights.

A federal bill of rights is suggested. Several states and territories of Australia have already enacted their own, such as the Victorian Charter of Human Rights and Responsibilities.[44] A bill of rights has been rejected in the past, for reasons such as it would be granting greater power to non-elected judges, rather than elected officials.[45] However, given the narrow scope of the principle of legality, to further strengthen democratic principles a legislative or entrenched constitutional bill of rights is essential. This would ensure all legislation is in accordance with human rights.

D    Rule of Law

The rule of law has been considered the most vital aspect of democracy. The ‘law is king’[46] is vital, and in Australia it is foremost upheld through constitutional separation of powers. The Australian High Court is often claimed the ‘guardian of the constitution’.[47] This is due to the High Court’s original jurisdiction over constitutional law, enshrined by the Australian Constitution.

1 Athenian rule of law

The Athenians attempted a separation of powers through their three governing institutions: the ekklesia, boule, and the courts. Magistrates were required to swear an oath to cast their votes in accordance with the laws and decrees of the Athenian people.[48] An Athenian leader, Lysias, once exclaimed ‘that men ought to define what is just by law, persuade each other by reason, and serve both these aims by submitting to the rule of law and being instructed by reason.’[49]

While well intentioned, the trial of Socrates makes clear that the direct representative method of Athens did not allow a clear adherence to the rule of law. There were little avenues of appealing decisions and few restrictions on what laws the legislative could make. This is evident in the uneducated majority of the Assembly allowing emotional, biased and unjust decisions as opposed to what is generally legally possible in Australia.

2 The ‘odd fact’ of section 76.

An important element of the rule of law is an independent judiciary, established through a separation of the three arms of government: legislative, executive and judicial. The Australian Constitution encompasses this in Chapter III.[50]

The High Court, contrary to popular belief, does not have a cemented jurisdiction over constitutional matters:

‘[Section] 76. Additional original jurisdiction - The Parliament may make laws conferring original jurisdiction on the High Court in any matter...’ (Emphasis by the author).[51]

This wording implies that Parliament could legally interfere with the role of the High Court as the guardian of the constitution. The High Court of Australia Act 1979[52] and the Judiciary Act 1903[53] govern the High Court and its administration. Section 30 of the Judiciary Act confers the power to decide on ‘all matters arising under the Constitution or involving its interpretation…’[54]

This oversight has been explained away as an ‘odd fact of history’.[55] This does not prevent a future Government from attempting to repeal this jurisdiction. The High Court has previously prevented the Australian parliament from infringing on the rights of citizens, states, and the separation of powers. It is critical that this ‘odd fact of history’ be amended via referendum to cement the High Court as the ‘guardian of the constitution’.

E    Conclusion

The Australian system is one that has slightly steered away from foundational principles of democracy for efficiency’s sake. While Athens’ dēmokratía was an imperfect system, Athens had stronger participation from its citizens in civic and political life, and possessed a far more direct representation in government from its citizens.

While the idea of the classical Athenian democracy is romantic, the aforementioned failures of the Athenians who practiced dēmokratía ‘left us almost nothing but criticism of this form of regime’.[56] This undoubtedly influenced modern political scientists and lawmakers in the formation of representative governments like Australia to attempt to mitigate the dangers of a fully representative and participatory democracy.

The Australian system is not ‘more democratic’ than Athens in the most literal sense. This is to ensure the nation can function within modern society. However, Australian can still make improvements to safeguard democratic principles, without compromising the original motivation behind its representative system.

A    Articles/Books/Commentary

Diamond, Larry J., ‘What is Democracy’ (Speech delivered at the Hilla University for Humanistic Studies, January 21, 2004)

Goldhill, Simon, The Good Love, Sex & Tragedy: How the Ancient World Shapes Our Lives, (John Murray Publishing, London, 2004) 179.

Griffin, Jasper, John Boardman and Osywn Murray, The Oxford History of Greece and the Hellenistic World, (Oxford University Press, Oxford [Oxfordshire] 2001)

Harris, Edward M., ‘The Rule of Law in Athenian Democracy, Reflections on the Judicial Oath’, (2007) 1 Ethics & Politics 55

Keane, John, Life and Death of Democracy (Simon and Schuster, 2009)

Liddell, Henry George, and Robert Scott, An Intermediate Greek-English Lexicon, (Oxford. Clarendon Press. 1889)

Ober, Josiah, Political Dissent in Democratic Athens: Intellectual Critics of Popular Rule (Princeton University Press, 2001) 78 - 79

O’Donnell, Garry, Larry Diamond and Leonardo Morlino, Assessing the Quality of Democracy (John Hopkins University Press, 2005)

Plato, The Republic (New York: E.P. Dutton & Co. Inc, 1938)

Przeworski, Adam, Jose Maria Maravall, Democracy and the Rule of Law (Cambridge University Press, 2003)

Raubitschek, Antony E., ‘The Origin of Ostracism’ (1951) 55 American Journal of Archaeology 221

Rothchild, John ‘Introduction to Athenian Democracy of the Fifth and Fourth Centuries BCE’ (2007) Wayne State University Law School Research Paper No. 07-32.

Rutherford, Samuel, Lex, Rex, (1644)

Thucydides, History of the Peloponnesian War, Book 1:22 (Rex Warner trans, Penguin Books 1954) [trans of: The Peloponnesian Wars, Book 1:22 (first published -411 BCE)]

Samons, Loren J., What's Wrong with Democracy? From Athenian Practice to American Worship, (University of California Press, 2004)

Spigelman, Chief Justice James, Statutory Interpretation and Human Rights (University of Queensland Press, 2008)

Waterfield, Robin, Why Socrates Died: Dispelling the Myths (W.W. Norton and Company, New York, 2009)

B    Cases

Potter v Minahan (1908) 7 CLR 277

Re Bolton, Ex parte Bean (1982) 162 CLR 514.

C    Legislation

Australian Constitution

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Commonwealth Electoral Act 1918 (Cth)

High Court of Australia Act 1979 (Cth).

Judiciary Act 1903 (Cth)

D    Other

Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report No 92 (2001)

Colebatch, Tim, ‘Bringing a barnyard of crossbenchers to heel’ The Age (online), 10 September 2013 <http://www.smh.com.au/federal-politics/federal-election-2013/bringing-a-...

Howard, John, ‘2009 Menzies Lecture, by John Howard, full text’, The Australian (online), 27 August 2009 <http://www.theaustralian.com.au/archive/politics/menzies-lecture-by-john...

Kirby, The Hon Justice Michael, ‘Kitto and the High Court of Australia - Change and Continuity’, (Speech delivered at the Sir Frank Kitto Lecture, The University of New England, 22 May 1998).

MacAllister, Professor Ian, ‘ANU-SRC Poll: Changing views of governance: Results from the ANU poll, 2008 and 2014’, conducted by Australian National University and Social Research Centre, August 2014