Download Democratic community standards, law, and related administration

Democratic community
standards, law, and related
administration
Aim: 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 monitored
The outcome is evaluated (and the law may
accordingly be revised)
Ideal moral characteristics of a
democratic state
The adult community votes for its leaders
Elected 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 nonadversarial 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
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.