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.

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

To put these lessons in a more positive light: I think community consultation must:

• 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.

Send mail to women.republic@webone.com.au with questions or comments about this web site.
Last modified: 04 September, 2004

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