Democratic community standards, law, and related

administrationAim: To explore standards: The key concepts and associated relationships

between policy, law, the justice system and ethics

What is the nature of leadership authority?

• Weber distinguished between three types of authority in a social system:

• Charismatic leaders sway their followers by direct emotional appeals

• Traditional authority rests on acceptance of the rightness of custom and tradition

• Rational-legal authority rests on rules expected to be fair and to apply equally to all

Democratic societies beyond the rule driven approach

A scientific, evidence based, or quality management approach is emerging

Laws set out broad aims, related standards and functions, not minute detail

Codes give expert guidance on how to implement law, but deviance is permitted if justified on the grounds of appropriate practice for a specific situation

Administration is documented and monitoredThe outcome is evaluated (and the law may

accordingly be revised)

Ideal moral characteristics of a democratic state

The adult community votes for its leadersElected representatives make laws to regulate

behaviour, on the community behalf Laws are administered by the public service

(including police)There is freedom of speech (press, TV, public

demonstration)Dispute resolution and research ideally undertaken

independently from government or commercial vested interests, to avoid bias and corruption

The modern state is normally secular

• Church and state are separated (This developed from Roman times)

• Some people in some Islamic communities believe that the state should be religious, and established to carry out the supposed law of God. (I don’t agree, do you?)

Judge made law – Common law and statute law

Since feudal times judges standing in for the king (the representative of God on earth) settled disputes using principles based on custom and practice and an adversarial process. This common law tradition continues on today.

• The development of government and expansion of statute law occurred as capitalism and democracy developed. The industrial revolution of the 19th century increased the speed of this process, which continues on today.

The Australian state

• The Constitution (1901) establishes the national ground rules for the way the rest of law is to be interpreted, and can be changed only by peoples’ referendum

• Government has 3 tiers, Commonwealth, State and Local, with differing responsibilities at each level.

• The nation is a federation of States, but since 1990 has been increasingly committed to developing national standards, which are regionally administered

The separation of powers

• Legislative power is the power to make laws

• Executive power administers laws through government departments, statutory authorities, the defense forces, etc.

• Judicial power is traditionally exercised by courts, but tribunals and other non-adversarial bodies increasingly proliferate

Statute Law

• Law are established through Commonwealth or State parliament deliberation and generated by political pressure. The requirements of local government are outlined in State Local Govt. Acts.

• The decisions of judges about individual cases (related to statute and/or common law may also affect the lawmaking process and its administration).

Relationship of Commonwealth and States

• Commonwealth powers primarily relate to taxation, defense, external affairs, interstate and international trade, marriage and divorce, immigration, bankruptcy and interstate industrial arbitration

• A State Parliament can make laws on any subject of relevance to the State. However, Commonwealth law has precedence when there is inconsistency or when a relevant international treaty is invoked.

Policy

• A direction given by those in authority with the expectation that it will be followed

• Government policy may be enshrined in law. If it is, it must be followed or penalties may result. (Whether they do depends on the effectiveness of administration)

• Any organization may make a policy to guide it, but it must also be consistent with legal requirements

Other Statements on Policy

Policy can be taken to refer to the principles that govern action towards given ends (Titmuss 1974)

Social policy is the result of the constant attempts of various groups in society to improve or redefine their situation vis a vis that of other groups (George & Wilding 1985)

Related views of policy?

• Policy is the continuing work done by groups of political actors who use available public institutions to articulate and express the things they value

• Policy is a set of general principles or conclusions stated as a series of desirable states

• Policy is a statement on social/political framework or process of action

Where do law and policy come from?

• The elected politicians (and the courts) make the law and policy.

• Government ministers have responsibility for particular portfolios of matters, and may oversee government organizations

• A wide variety of groups attempt to influence the process, informed primarily by the media

People may join political parties and/or organize around

• Their occupational demands• Their regional interests• Other perceived quality of life (health,

welfare, law and order, environmental) or economic interests

• Gender/sexual identity• Religious or cultural identification• Etc. with the aim of achieving their ends

How to influence policy and law making

• Analyze the power struggle over defining social issues, social purposes and goals in the light of the historical, economic, social, geographic and related factors which apparently produced the political contest

• Understand how political processes work• Develop personal and collective practices with the

aim of influencing the outcome of the contest

Liberal and Communitarian views of policy (rule or direction)

making• Liberal views of the democratic policy making process stress the

influence of individual and group interests. (The powerful or majority have most influence.)

• Communitarian views of policy making seek to define and meet community interest through an increasingly evidence based approach. How much diversity is permitted?

• I undertake research to make submissions to public inquiries relating to health, rehabilitation and insurance matters

• I do this on a cross-portfolio and cross-disciplinary basis, and from a public interest perspective rather than from a sectional perspective

• I try to publish the material in academic journals and use it in my teaching (Why do I do this?)

Can society move beyond interest groups to the public interest?

Can politics and law be more than a reflection of the struggles of interest groups pursuing their agendas?

The development of democracy is essentially tied to the ability to demonstrate which laws and practices protect the interests of the widest possible group of people, including and especially those who are most unusual and/or powerless

Spin or evidence?

• The development of democracy has also brought ‘spin doctoring’ – a study and practice aimed at influencing people’s ideas to serve the interests of those who hope to control and benefit from the ‘spin’.

• An evidence based approach to law and policy seeks to distinguish between what people may believe, and what actually appears to be so. Trying to take account of both is vital for the democratic process.

Dispute resolution is ideally an aspect of quality management

The Australian draft standard on dispute resolution (AS 4608-200X) requires adoption of a philosophy of continuous improvement in dispute handling. Records should be kept of each dispute type, treatment and outcome. They should be analyzed to identify dispute causes in order to pre

vent future disputes, improve rehabilitation related outcomes and contain costs.