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Constitution an “Alice in Wonderland” view of democracy and rights

By James Allan - posted Friday, 22 July 2011

The naivety of the Australian Greens' constitutional reform policies are matched only by the bad consequences they would engender, were this country ever unlucky enough to see them come to pass.

Let's turn in a moment to the main ones listed on their website. Before doing that, however, notice that the Greens like to pay lip service to what they style "democratic structures" but at the same time they propose and support policies that regularly fail to gain the support of the majority of Australians.

In other words, if "democracy" and "democratic decision-making" are taken to have some strong connection to "majoritarianism" and "letting the numbers count" where each of us is counted equally and the policy preferences of the majority prevail, then Greens constitutional preferences – the core druthers of this political outfit – consistently run up against the problem that the majority of Australians oppose what the Greens want.


So the Greens want a bill of rights. Indeed they want one extremely badly and spend an inordinate amount of time telling us so. But when Australians were asked in s.128 referenda in 1944 and 1988 if they wanted an entrenched, constitutionalised bill of rights, even insipid, enervated versions, they answered "no" in clear and certain terms. Indeed in the latter of these the "yes" case did not succeed in a single state and was slaughtered.

And when that particular gambit was shelved and proponents opted to try, instead, for a statutory bill of rights model, one that gives judges hefty extra powers not through the front door of being able to invalidate or strike down democratically enacted statutes but rather through the back door of affording them a new Alice-in-Wonderland-like interpretive power that insists they read all other statutes in a new, human rights friendly way (including, implicitly, scope to downplay the clear intentions of the enacting legislature), that alternative was so unpopular that it divided the Labor Party, unified the coalition in opposition, and was put to one side for the foreseeable future.

And this despite the Labor Party government having biased things immensely by at first setting up a consultation committee chaired by a known statutory bill of rights proponent and without one single known sceptic or opponent as a member.

Put differently, if democracy is going to decide this issue, then the Greens' desire for a bill of rights will remain unrequited.

Much the same goes for its adamant desire to shift to a republic. The case for that shift was put to Australians in November 1999 in a s.128 constitutional referendum. It lost badly, by 10 per cent across the country and again it failed in every single state.

On that latter issue, moving to a republic, the Greens seek to overcome that referendum loss by structuring how they would like to get there in such a way as to maximise the chances of success. In effect they want to isolate those of us – like me – who favour the status quo constitutional monarchy solely because we see it as the least bad option on the table (and likely to be on the table for the foreseeable future) by first having a plebiscite on republicanism in the abstract, next putting together the tired old ploy of a committee of the great and the good to come up with something and then putting whatever that is – which anyone with a brain knows will have to be either a directly elected president or an indirectly elected one – to another s.128 referendum simply for endorsement.


Think about this staging of events and you will realise that the goal is to split those who favour the status quo into two camps: Those who are emotionally attached to monarchism and very much like it; and those who are emotionally indifferent but who think the present set-up is the least bad one in a Westminster parliamentary system of democracy.

In other words, the Greens want to avoid putting any specific alternative up against the status quo because they realise it would likely lose – better to start with vague, amorphous, indeterminate and gaseous platitudes. But the problem is that both the directly elected president option and the indirectly elected option have flaws so bad that if either were put up against the status quo it would lose. So that reality has to be side stepped.

And as for the bill of rights the Greens trumpet, it is impossible to read their website and not be left with an overwhelmingly sense of naivety, of breathtaking naivety. The Greens effectively ask, "don't you want your rights protected?" again and again in setting out their "Goals" and "Measures"' as regards these instruments. And of course the answer to that sort of question is for almost everyone a resounding "yes".

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About the Author

James Allan is Garrick Professor of Law at the University of Queensland.

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