So, here’s my 2020 summit idea. (Not that I’m a summiteer or a rejectee.) But first some preliminary opinions, which will please no-one.
James Allan thinks the fix is already in on a bill of rights (and more) because of the make-up of the Summit’s governance panel: judges, academics, the usual human rights crowd:
Then you can fill out the numbers and sit back and wait for what you knew you’d get going in.
There’ll be calls for a bill of rights. There’ll be calls for Australia to become a republic. And such
authoritative calls could prove mighty useful down the road, especially if that was what you
wanted before you started this little charade. Of course, when we play this game, we would
have to concede, were we honest, that the group we had assembled was nowhere near being
representative of the views of Australians as a whole.
I think he’s right. Not, mind you, because the numbers are stacked, but because there is now a set roadmap to a statutory bill of rights that no summiteers who want to avoid looking extremist can oppose: the community consultation on human rights. The consultation is the real fix, because its main question for the community is: do you want your rights better protected? Nearly everyone will say yes and everyone who doesn’t will sound like (and probably actually be) a crackpot. The hard question – the details of the protection – is a complex package that no lay member of the community will be on top of. The committee will then cherry pick the bits it wants and ignore the rest. If the committee foolishly includes something that wasn’t on the Attorney-General’s pre-announced wishlist – socio-economic rights, for example – then the A-G will cut that out of the final draft. I say all this without doubting, for a second, the genuineness of the people who have been involved in such consultations (including friends of mine.) The problem, as I’ll get to, is with the whole idea of consultation at this stage.
James Allan’s solution is a different form of community consultation:
The issues of whether to have a home-grown head of state, or whether to hand lots of decision-making power to an aristocratic judiciary, are not issues on which expertise should trump numbers. Letting the numbers count is a dumb way to pick a top physicist or malaria expert. But letting the numbers count is a supremely excellent way to decide whether we pay the costs involved in moving to a republic or whether we want to take power away from our elected representatives and give it to committees of ex-lawyers (which is what judges are and which is why there is something so self-serving about judges calling for a bill of rights).
In other words, a referendum. This too is a fix. The referendum will inevitably include a detailed model (or, even if it’s non-binding, will – because of the way Australians associate referenda with constitutional change – the spectre of one.) The opponents will be able to bring up all manner of scare issues and trumped up constitutional technicalities. Supporters will tear eachother apart in differences about the details and papering over the inevitable ambiguities. The referendum’s negative result will be as inevitable as a community consultation committee’s positive report.
The problem is that human rights legislation is just that: legislation. Not a mystical document. Not a social upheaval. And communities don’t – and can’t – legislate. Rather, the people who should decide whether or not we have a human rights statuteand what model we should use are the very people whose power may be limited and whose job is legislating: federal politicians. Why James Allan wants to take the quetion of which statutes the federal parliament passes from parliament and hand it to the people is beyond me, given his glowing support for Australia’s usual system of doing things. But I know why the pro-bill mob don’t want the issue to be exclusively for parliament: the history of such attempts is about as dispiriting as the history of constitutional rights referenda. The community consultations road, by contrast, has done pretty damn well. As well, goes the argument, such consultations give the laws that are passed some crucial community legitimacy. I agree that such laws need the legitimacy of community consultation. But I think that the ACTHRA and Charter are presently burdened by the accurate perception that those consultations were a fix.
So, that’s the bind: a human rights law needs the legitimacy of community consultation, but the community lacks the knowledge to judge the complexities of such a law.
My solution: enact the law first, then consult the community later. Of course, that sounds like a fix too. But what I have in mind is a sunset clause – say an eight-year one- that is triggered unless a referendum is held. My hope is that that will send the message to the community that their say will count, thus supplying the necessary legitimacy, and at the same time focus on the effects of the new law, which is how the community can actually assess the dreaded details. Parliament, of course, could ignore the referendum result – or even repeal the sunset clause, or the human rights law itself, without a referendum – but will have to pay the price of reneging on the promise of consultation. And that’s how parliamentary sovereignty should work. Also, the people might reject it – not liking the results, as they discern them – but that’s how community consultation should work.
(Off-topic, this is also how I think that the republicans can avoid the inevitable ‘appointment vs direct election’ debacle. The constitutional amendment should provide for the pollies’ preferred model of bipartisan parliamentary appointment, but with a built-in follow-up referendum – mid-way through the second Presidency? – that puts the direct election model to the people. If the pollies are right, then that the second referendum will be defeated. If not, then that’s fine too, as the appointment model clearly wasn’t cutting the mustard. But, crucially, both sides of that pro-republic movement will have a stake in voting yes in the first referendum, unless of course they hate the other side’s model more than the present constitutional monarchy.)