|
Talking to the People: Consulting on the Republic
Speech by Hilary Charlesworth
ARM Women's Network / Women for an Australian Republic breakfast, Canberra
11 August 2004
Many of the plans for developing and deepening a popular
republican movement in Australia call for greater community
consultation. This is seen to be necessary because of
Australia's bad record on constitutional change. Australia
was once described by the great constitutional scholar, Geoffrey
Sawer, as 'the frozen continent, constitutionally speaking'.
This description has remained remarkably apt - of the 44 proposals
put to the Australian people since federation, only 8 have been
successful. no referenda have passed in Australia over the last
twenty-five years.
It’s important also to remember that no referenda have passed
in Australia over the last twenty-five years.
It's been argued that the one way around the great Australian
reluctance to change its constitutional fabric is to improve
the reform process. This would mean giving the electors some
sense of ownership of the process, rather than a sense that they
are being asked to vote on some elite agenda that will have little
real impact on most people's lives.
I am old enough to recall well the 1988 constitutional referenda,
when a very half-hearted attempt was made to, among other things,
increase the protection of individual rights in the Australian
Constitution.
I remember going along to some public meetings in Melbourne that
debated the issues: although the proposed amendments were worthy
(if rather weak) and had the support of an eminent group, the
Constitutional Commission, they seemed arcane and irrelevant to
daily life and it was very easy for Peter Reith, then at the
beginning of his political career, to mock the proposals and to
prophesy that they would end Australian civilisation as we know
and love it.
So, how can we get people to feel connected to the process of
constitutional change?
One way that has been proposed is to run a program of community
consultation. The term 'community consultation' is increasingly
popular in a wide variety of contexts. It's a bit like 'motherhood'
or 'apple pie' - a thing that attracts automatic approval and
approbation. Community consultation gives an aura of legitimacy
to an idea or a project and it's hard to imagine anyone speaking
against it in principle. I want to draw on my experiences as a
member of the ACT Bill of Rights Consultative Committee to suggest
a number of lessons that I hope will be useful to any plan for
community consultation about the republic. I certainly don't want
to suggest that our consultation was a model: indeed I am very
conscious that we could have done it much better.
There are of course some parallels in the debate over a republic
and the protection of human rights. Human rights as a concept are
generally regarded in Australia as something very vague and insidious.
Politicians from all sides of politics have been quick to undermine
talk of human rights by presenting them as dangerous, selfish and
unlimited, simply another aspect of a grasping, litigious, consumer
society.
Human rights are also depicted as a foreign import, the product of
corrupt international institutions, at odds (as our Prime Minister
has said) with the great Australian tradition of mateship and with
the glories of the common law and parliamentary democracy.
Politicians have of course the least to gain in the short term from
taking human rights seriously because the aim of human rights guarantees
is to provide a threshold of the necessary conditions for people to
live lives of dignity and value. Human rights are often troublesome
for politicians because they set limits on legislative action.
With some great exceptions, Australian politicians have resisted taking
a long term approach to human rights -- in other words, understanding
that a society that publicly commits to protecting human rights will be
a wiser, more mature and more just community.
A constant argument used against the better protection of human rights
is that Australia's human rights record is 'second to none'. And that
we live in a 'gold-plated democracy'. The ACT's Shadow Attorney-General,
Bill Stefaniak, would regularly use the aphorism 'If it ain't broke,
don't fix it' in the ACT debate.
So, there are clear parallels are with the debate over the republic.
The republic can be presented as a fancy optional extra, the desire
of the chardonnay-sipping chattering classes, and irrelevant to Aussie
battlers.
Opponents of a republic also depict such a reform as a foreign idea,
beloved of dictators in far off dark countries, implying that it could
lead to some form of authoritarian government. Retaining the linkage
with the British crown is said to give us stability and connection to
our British heritage and traditions.
Some models (eg direct election of a President) would reduce the power
of the executive to choose the head of state and thus provide another
locus of political legitimacy: this has been portrayed as a dangerous
power shift in our society.
And of course the 'If it ain't broke' refrain was very popular during
the 1999 referendum campaign to resist the idea of constitutional change.
These similarities in the human rights and republic debates make me hope
that our experiences of consultation will be of use to you.
Let me tell you a little of the background to the ACT BORC Committee.
ACT Chief Minister Jon Stanhope made an election commitment to consult
on a bill of rights in 2001. He was genuinely open-minded over the form
and substance of the consultation and there was no pre-emption of issues.
We felt like amateurs at consultation and were once asked by a consultation
expert whether we wanted to do a 'real' consultation or something that
looked like consultation! In the end we worked out our program in a rough
and ready and unscientific way. We published an Issues paper and then
followed that up with public meetings advertised in the Canberra Times in
the six Canberra town centres. These were, numerically, a limited success,
although we gained a lot from the views we heard. We also engaged in more
targeted consultations with community groups, schools, boards, and churches
(there were almost 50 such meetings). We tried, but failed, to have much
contact with business groups. The Committee also called for submissions on
our terms of reference (receiving almost 150 submissions, ranging from a
learned treatise to a postcard). Finally, we held a Deliberative Poll in
November 2002 at old Parliament House. This was our most high profile event.
Overall, we found that, once people understood the issues, there was
strong support for better protection of human rights. But our
experience of community consultation suggests three cautions:
1. Issues can be easily misunderstood
For many people, talk of human rights immediately conjures up the
spectre of the United States Bill of Rights. For example, the
international human rights instruments offer no protection for the
right to bear arms, but this was a great fear in many peoples' minds.
So, I think you need to be very clear and explicit about what the
term 'human rights' or 'the republic' means. Certainly in my
experience the group who has the most clear and intuitive
understanding of human rights is school children.
The need for accessible education material is vital - and updated
and attractive web sites.
I also think that people are very wary of being sold a line and
very much appreciate being presented with the counter arguments
as well.
Sometimes, the BORCC felt a little cast down when a consultation
would throw up many doubts and objections to the idea of an ACT
bill of rights. But I learned a great deal from the articulation
of these issues and indeed, over the course of the consultation,
changed my views in a number of ways.
2. Issues can be misrepresented easily
In the ACT consultations, talk of human rights was often met with
the riposte that human rights are simply a bonanza for lawyers.
Wild litigation scenarios were imagined and the fear that human
rights will be used as part of a litigation spree was regularly
expressed.
It was important, then, for communication of the idea that
litigation can only ever be a last resort in the protection of
human rights and that a legislative commitment to human rights
is aimed primarily at changing the behaviour and consciousness
of the government in the development of policy.
In the ACT, we used the idea of 'dialogue' to sum up the model
we proposed, in other words the idea that the Human Rights Act
would put the judiciary, the legislature and the executive in a
relationship of dialogue with respect to human rights. It was a
useful way of emphasising that the judiciary would not have the
final word on human rights protection and the collaborative nature
of the task.
It is also important to be clear where legal change would make a
practical difference.
So, too I think in the republican movement, it is crucial to make
clear that the idea of the republic is not just an elite
preoccupation, but one that will define the nation in a new way.
3. Consultation can raise false hopes
My experience was that community consultation about human rights
could sometimes raise great hopes in community groups, particularly
those which had a history of repression and marginalisation. They
tended to see legal protection of rights as a panacea for all types
of problems, when of course it can only ever be one of many strategies.
They would endorse the work of the consultation committee with such
enthusiasm and I would often feel a damp squib as I explained all
the limitations of our proposals.
So, while it's necessary to explain why taking the idea of an
Australian republic seriously is significant, I think it is also
necessary to be modest in describing what effect it will have.
Conclusion
- Be based on clear and accessible information and put all
perspectives on the table; any sense of a political or partisan
line makes consultation tough and unproductive.
- Present legal reform as only one aspect of more general
reforms - whether related to human rights protection or the
republic.
- Be modest in the hopes and expectations it creates.
At its best, community consultation can engender real excitement
and engagement with public issues. For this to happen, it is
important to spend as much time planning the consultations as
actually taking part in them.
|
