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Williams, George --- "The Treaty Debate, Bills of Rights and the Republic: Strategies and Lessons for Reform - Paper Delivered at the National Treaty Conference, 27-29 August 2002, Canberra" [2002] IndigLRes 41
The Treaty Debate, Bills
of Rights and the Republic: Strategies and Lessons for Reform
George
Williams
I. Introduction
The idea of a Treaty or
Treaties between Indigenous peoples and the wider Australian community is again
on the political agenda. It
has been put there by bodies including ATSIC, with
the elected chair of ATSIC, Mr Geoff Clark, restating the call for a Treaty at
the Corroboree 2000 convention. The Council for Aboriginal Reconciliation also
identified a Treaty as an aspect of the unfinished
business of the
reconciliation process. It recommended in its final report ‘That the
Commonwealth Parliament enact legislation
... to put in place a process which
will unite all Australians by way of an agreement, or treaty, through which
unresolved issues
of reconciliation can be
resolved.’
A
Treaty could be the lynchpin of the next stage in the reconciliation process. It
might open up the Australian political and legal
system, which, since
Federation, has largely excluded Indigenous
peoples.
While a Treaty has connotations that suggest an agreement between sovereign
nation states, this need not be the case. It may merely
amount to an agreement
between two or more parties. In many other countries, a Treaty has been signed
between the settler and Indigenous
inhabitants as a way of striking an agreement
on governance and other issues. New Zealand provides a good example, with the
Treaty
of Waitangi signed in 1840. In fact, a Treaty is the accepted way in
other nations of achieving an appropriate settlement. Australia
is the only
Commonwealth nation that does not have a Treaty with its Indigenous
peoples.
While the idea of a Treaty has been put back on the
agenda, no clear political or legal strategy has yet emerged for achieving it.
The development of a strategy should be an immediate goal. Australian history is
littered with examples of failed attempts at reform
of our system of government.
It has been written of Federation and the creation of the Australian
Constitution in 1901: ‘There was no Damascus Road miracle about
Australia’s federal conversion. It took sixty years of spasmodic official
effort and fluctuating public interest to bring the Commonwealth into
being’.
This achievement may have exhausted the nation because, for the next hundred
years, reform has been very difficult to achieve. The
referendum process to
change the
Constitution has been invoked 44 times with only eight proposals
succeeding.
Such figures demonstrate that over the last century
Australia has achieved a relatively poor record of bringing about structural
reform
of our system of public law and government. It also suggests that the
process of reform is not working. When the money spent on processes
including
the 1999 referendum on the republic is put along side the long list of failures,
it is clear that much improvement is needed.
This raises serious concerns about
any attempt at achieving a Treaty between Indigenous and non-Indigenous
Australians, whether or
not such an outcome involves a referendum. If the reform
process itself is tending to jeopardise the success of structural legal
reform,
the idea may be doomed from the start. Of course, this is an unduly pessimistic
view. My argument is merely that we need
to be aware of the legal, political and
institutional obstacles to reform and that we should develop a strategy to meet
them. If
this is not done, success is unlikely.
In this article I draw lessons for the ongoing Treaty
process from two other long standing reform debates, those over a Bill of Rights
and an Australian republic. I ask what went wrong in these areas and what do
they suggest as approaches or strategies for the Treaty
debate? These are
appropriate areas for comparative analysis because they have strong parallels
with the type of reform being considered
in the area of a Treaty. Each could
produce a significant change to the basic legal structure of the nation and
raise complex legal
as well as cultural and political questions. Each reform has
as much to do with legal change as it does about symbolism and
recognition.
My argument is not that every referendum proposal put to the
people or attempt at structural legal reform ought to have succeeded.
Instead,
the record suggests that:
- the
reform proposals and models generated have often been flawed in their design,
and
- the
process that has generated these proposals, and by which such proposals are
considered by the Australian people, is not working
as it should.
These factors explain why even broad based
community support for a Treaty may not be enough to achieve a desired outcome.
We must
tackle the process of reform as well as the design of any model. Both
the model and process must then be backed by effective political
leadership.
In drawing conclusions and
analysing the lessons from these other debates, I do not assume any particular
outcome for the Treaty process
(such as that a referendum will be necessary). I
maintain an open mind as to the content and nature of any Treaty, and do not
even
presume that the culmination of the reconciliation process ought to be a
Treaty. I merely argue that, if a Treaty or like process
is to be tackled in
Australia, there is much that we can learn from prior debates. Indeed, unless we
learn these lessons the Treaty
debate may not produce any outcomes of
substance.
II. Republics,
Preambles and the 1999 Referendum
On 6 November 1999, Australians were
seemingly faced with a simple choice: become a republic with an Australian as
Head of State,
or retain the Queen and remain a constitutional monarchy. The
results were clear and decisive. Despite strong support for the idea
of a
republic, Australians rejected the proposed change and kept the
Queen.
The republic proposal was defeated nationally by a vote of 54.40 per cent to
44.74 per cent and in all 6 states and the Northern
Territory. There was a
majority of ‘Yes’ votes only in Australian Capital Territory. The
proposal to insert a new preamble
into the
Constitution fared even worse. It
failed to pass nationally a vote of 38.96 per cent to 60.08 per cent and also
failed in every state and territory.
Contemporary republican
models focused mainly on apparently pragmatic ‘minimalist’ change;
that is, a republic created
by the ‘minimal constitutional changes
necessary to achieve a viable federal republic of Australia while maintaining
the effect
of our current conventions and principles of
government’.
Minimalist change might mean no more than altering the
Constitution to delete
references to the Queen and to replace the office with a President appointed by
the Prime Minister.
Minimalism was sharply
challenged on several fronts. Some argued for a stronger form of republicanism
that would involve radical constitutional
and political change aimed at
enhancing the citizenship of the
people.
Non-minimalist models have, in particular, incorporated a greater role for the
Australian people in the selection of the President
by, for example, providing
for the President to be directly elected by the people or even through the
establishment of a United States
style presidency with full executive power.
Other models have moved outside the narrow terrain of Head of State issues and
have included
changes such as a Bill of Rights or reconciliation.
The republic model put
to the Australian people was opposed by a strong and well-organised coalition of
interests. The ‘No’
coalition was made up of two extremes:
monarchists who opposed any change, and direct election republicans who opposed
this change
on the basis that it did not go far enough. Despite the obvious
conflict in their positions, they had enough in common to wage a
coherent and
effective campaign. Both wished to see this model defeated. Caught in the middle
were the proponents of the minimalist
model, most notably the Australian
Republican Movement, who had to convince the Australian people to vote
‘Yes’ to a
model that lacked bipartisan political support (or even
the support of the Prime Minister), that had obvious weaknesses in
design,
and that had been unable to gain an absolute majority on the floor of the 1998
Constitutional Convention.
The ‘No’
coalition was effective in tapping into a cynical reaction in the electorate to
the referendum. It was able to
reinforce a growing perception among many
Australians that the constitutional reform process was dominated by politicians
to the
exclusion of community views and aspirations. This was reinforced by the
experience with the proposed new preamble to the
Constitution,
which did not include any role for members of the Australian community in its
drafting.
Even monarchists were prepared to argue that the failure of the republic model
to involve any direct popular participation meant
that this would be a
‘politician’s republic’. Community concerns were also fed by
misinformation and by fostering
fears that a ‘Yes’ vote might lead
to the secession of one or more states from the Federation.
The task of
comprehension was made more difficult for Australians by the complex legal
issues raised by the republic and preamble.
For example, the official
advertising stated that ‘there is currently no preamble in the Australian
Constitution itself’. While strictly correct, this was misleading. There
is already a preamble to the British Act which precedes the
Constitution.
This preamble has always been seen as prefacing the
Constitution, and it is
included when the
Constitution is printed for sale. The official advertising
material masked deep problems with the new preamble, including that a
‘Yes’
vote to this question would insert a new preamble while also
retaining the old version, thereby leaving the
Constitution with two
preambles.
The legal debate created
by the proposed new preamble was of minor significance compared to the questions
raised by the republic.
Much was made of the fact that the republic involved 69
separate changes to the
Constitution, as if to suggest that the mere number of
changes reflected a radical revision of the Australian system of government. In
fact, apart
from five major changes designed to establish the new office of
President, the remainder of the changes were largely consequential,
and many
merely replaced ‘Queen’ or ‘Governor-General’ with
‘President’.
Prime Minister John Howard entered the fray in the last
days of the campaign. He strongly supported a ‘No’ vote, arguing
that Australia is already an independent nation, and stating that the proposed
model was unsafe and flawed. He criticised the dismissal
mechanism and the
public nomination process for candidates for the office of President, correctly
stating that the latter would give
Australians no real say. He also sought to
undermine the ‘Yes’ case argument that the republic was necessary to
give
Australia an Australian as Head of State. The Prime Minister adopted the
monarchists’ position that the Governor-General, and
not the Queen, is
effectively Australia’s Head of State and thus, the shift to a republic
was unnecessary.
The republic debate
exposed deep, entrenched problems in Australia’s system of government that
help explain why this referendum
failed and why any future referendum on the
republic or on a Treaty may also fail. Two main weaknesses were brought to
light. First,
many Australians are alienated from the political process, and
from the people who represent them in Parliament. In a context of
uncertainty
and insecurity brought about by rapid social and economic change, it is not
surprising that there is distrust of political
leaders and the system of
representative government that has produced them. It is difficult to feel part
of a system that is not
understood and in which there are very few opportunities
for participation. This has led to such problems as a lack of confidence
in the
political system. The symptoms of this can be seen in the declining support for
the major parties (and consequently, in the
high number of minority governments
at the state level), and in the rise of protest parties such as Pauline
Hanson’s One Nation
Party.
Second, Australians lack basic
understanding and knowledge of their system of government. The republic model
put to the people in
the 1999 referendum was supported by a $24.5m
Government-funded advertising campaign, a 71 page ‘Yes’ and
‘No’
case booklet sent to every voter, and saturation coverage in
the media. Despite this, most Australians had little or no idea of what
a
republic would entail, let alone how the proposed model would work in practice.
The referendum ‘debate’ generated considerable
confusion, as well as
strong disagreements on issues ranging from the mechanism for the dismissal of
the President to the identity
of the current Head of State. Rather than being an
example of informed deliberation, the debate often involved each side seeking
the support of celebrities and other notable figures in the expectation that
such people would attract voters to their side.
This disagreement
obscured the fact that the proposed model remained impenetrable to many
Australians. Republicans faced an uphill
battle. They had the task not only of
informing Australians about the merit of the proposed changes, but also of
providing enough
information about the current system to allow the changes to be
evaluated. This proved an impossible task in the heated and partisan
atmosphere
of the campaign, particularly given the spilt in their own ranks between
minimalist and direct election republicans.
The central arguments of the
‘No’ case were ‘Vote No to the Politician’s
Republic’ and ‘Don’t
Know—Vote No’. These slogans
effectively exploited Australians’ lack of engagement with, and knowledge
of, the
political process. However, this is not to say that in voting
‘No’ most Australians cast their votes stupidly. The most
rational
choice when faced with a change to a system that appears to work at least
tolerably well from their perspective, but of
which little or nothing is known,
is to reject that change. This is especially the case where it is perceived that
those promoting
the change have a vested interest in the result (in this case
the, misplaced, suggest that the same politicians promoting the republic
model
would gain a benefit under the new system).
III. The Struggle for an Australian Bill of Rights
There
have been several attempts to introduce an Australian Bill of Rights and to
amend the Constitution to incorporate new fundamental rights. The first of these
came in the form of a referendum put to the people on 19 August 1944, which
proposed that the Constitution be amended to grant the Commonwealth 14 new heads
of power for the purposes of post-war reconstruction. The proposal also sought
to insert guarantees of speech and expression, as well as extend the guarantee
of religious freedom in s 116 to the states. These powers and guarantees would
have operated for a period of only five years. The referendum was lost with a
45.39
per cent ‘Yes’ vote to a 53.30 per cent ‘No’
vote.The
referendum that has received the highest ever ‘Yes’ vote was a
proposal put to the people on 27 May 1967. That referendum
gained the support of
89.34 per cent of voters and was carried overwhelmingly in every state.
Previously, s 51(xxvi) of the Constitution had empowered the Parliament to make
laws with respect to ‘The people of any
race,
other
than the aboriginal race in any
State, for
whom it is deemed necessary to make special laws’ (emphasis added). The
1967 referendum deleted the words in italics. It
also repealed s 127 of the
Constitution, which had provided, ‘In reckoning the numbers of the people
of the Commonwealth, or of a State or other part of the Commonwealth,
aboriginal
natives shall not be counted’. Although these changes to the Constitution
have been popularly seen as granting Aboriginal people ‘equal
rights’, and in particular the right to vote, this is not
correct. The
1967 changes to the text of the Constitution gave recognition to Aboriginal
people and repealed the discriminatory s 127, but they did not actually grant
Aboriginal people any
rights.
Despite
the success of the 1967 referendum, the next three attempts to bring about
greater protection for fundamental rights came
in the form of statutory Bills of
Rights. In 1973 Lionel Murphy, as Attorney-General in the Whitlam Labor
Government, introduced
the Human Rights Bill 1973 (Cth) into the federal
Parliament. The Bill sought to implement the
International
Covenant on Civil and Political
Rights
1966
in
Australia and would have protected a range of rights, including freedom of
expression, freedom of movement, the right to marry
and found a family, and
individual privacy. It even sought to prohibit ‘Any propaganda for
war’. The Human Rights Bill
met strong opposition and eventually lapsed
with the prorogation of Parliament in early 1974.
The
failure of the Human Rights Bill did not end attempts to bring about rights
protection by Commonwealth implementation of international
instruments. The
Whitlam Government, for example, was successful in enacting the
Racial
Discrimination
Act
1975
(Cth), while the Hawke Labor Government enacted the
Sex
Discrimination
Act
1984
(Cth). Senator Gareth Evans, as Attorney-General in the Hawke Labor Government,
sought to take up where Murphy had left off in promoting
a statutory Bill of
Rights. In 1983 he oversaw the drafting of a Bill of Rights Bill that, like its
1973 predecessor, would have
implemented international rights instruments.
However, the 1983 model was weaker than its 1973 predecessor in several
ways—most
significantly in that it would only have applied to governmental
action, whereas the Murphy Bill would have applied to any action
that infringed
the protected rights. Although the Evans Bill was given Cabinet support, it was
not introduced into Parliament. Lionel
Bowen replaced Evans as Attorney-General
after the December 1984 federal election. After being redrafted and having its
operation
watered down, the Bill was introduced into the federal Parliament in
November 1985 as the Australian Human Rights Bill 1985 (Cth).
It was passed by
the House of Representatives, but failed to gain majority support in the Senate.
Encountering strong opposition,
the Bill was finally withdrawn in November
1986.In
the wake of the failure of the Bowen Bill, the Government changed tack. It
established the Constitutional Commission in December
1985 to report on the
possibility of revising the Australian Constitution in order to ensure, among
other things, that democratic rights are guaranteed’. The Commission
responded in an interim report
in April 1987, in which it made recommendations
to expand the scope of the express rights already in the Constitution, but also
foreshadowed the need for wider change. The Commission’s final report was
released in June 1988, and was more ambitious.
It proposed significantly greater
protection for rights by constitutional means than had the Advisory Committee.
The Commission recommended
that a new Chapter (‘Chapter VIA—Rights
and Freedoms’) containing a wide range of fundamental rights be inserted
into the
Constitution.Bowen
had requested that the Commission provide an interim report so that a referendum
to amend the Constitution could be held in 1988. Accordingly, after the interim
report had been provided, but before the Commission had completed its final
report, the Hawke Government announced that it would initiate constitutional
change. Legislation was introduced to this effect on
10 May 1988 and four
proposals were put to the Australian people on 3 September 1988. The proposals
were derived, with some variations,
from the recommendations of the
Constitutional Commission in its interim report. The first and third proposals
concerned four-year
maximum terms for the federal Parliament and recognition of
local government, respectively. The second proposal sought to guarantee
‘one vote one value’ by requiring that the population count in each
electorate not deviate by more than 10 per cent.
This proposal would also have
inserted a right to vote into the Constitution. The fourth proposal also sought
to guarantee basic freedoms, such as freedom of religion and the right to a jury
trial, but only
by extending the operation of existing guarantees in the
Constitution.
All
four proposals were defeated. The results were dismal. The highest national
‘Yes’ vote for any of the proposals was
37.10 per cent, which was
for the proposal on ‘one vote one value’. The fourth proposal
received an astonishingly low
vote, the lowest of any of the proposals.
Nationally, 30.33 per cent of voters registered a ‘Yes’ vote, while
68.19 per
cent voted ‘No’. This was the lowest ‘Yes’
vote ever recorded in any referendum. In South Australia, the
‘Yes’
vote was only 25.53 per cent, while in Tasmania it was 25.10 per cent. The
failure of the 1988 referendum undermined
any suggestions that any further
attempt should be made to insert other rights into the Constitution or to
implement the final report of the Constitutional Commission.
The
1988 referendum showed the difficulty in gaining the popular vote for
constitutional change. It demonstrated that bipartisan support
for a proposal
can be essential for a successful constitutional change and that the support of
the Australian people cannot be assumed,
even for a proposal that is designed to
protect the rights of Australians as against government. Lack of bipartisan
support leaves
open the prospect of a determined opposition misrepresenting the
effects of constitutional change for its own political purposes,
as occurred in
1988.
To
achieve reform in the area of constitutional rights it will be necessary to
build a broad political and popular base for change,
underpinned by real
understanding of the issues and proposals. The result in 1967, as well as a
recent successful referendum in New
South Wales that entrenched judicial
independence and the security of tenure of judges in the
Constitution
Act 1902
(NSW), shows that it is possible to gain the support of the Australian people in
favour of changing the Constitution to protect basic rights. However, the 1988
result shows that this is by no means easy and that any attempt to insert new
rights into
the Constitution should be carefully considered and
prepared.
The failure to achieve a
Bill of Rights in Australia at any level of government may indicate that
Australia, unlike other nations,
has never had its ‘constitutional
moment’ in which a Bill of Rights has become politically achievable; that
is, one of
those ‘fleeting junctures of opportunity for radical re-design
of a
polity’.
However, in addition to the absence of the right ‘moment’, the
record of failure also demonstrates the need for new approaches
that harness the
respective responsibilities and interests of parliaments and the courts, as well
as the community. The community,
whose support will be vital for the successful
implementation of any Bill of Rights, must be engaged. Significantly, none of
the
constitutional or statutory proposals for a Bill of Rights explicitly
recognised a role for the community in the rights protection
process. Each was
essentially a Bill of Rights model in the traditional form in which the focus
would have been on the judicial interpretation
and application of rights. This
suggests problems with the models relating to their design and to the political
leadership backing
them.
IV. Ten
Lessons for Reform
The attempts to achieve structural change to
Australia’s public law system in the areas of a republic and Bills of
Rights suggest
the following lessons (which do not all point in one direction
and may in some cases even conflict).
1. Focus
on the long and not the short term
Major public policy debates in
Australia, perhaps due to our short three year political cycle, tend to develop
and be resolved quickly.
There may be little room for reflection or revision.
This means that one plan is commonly put and either fails or succeeds. A longer
term approach is needed that extends beyond any one political cycle. At least in
the absence of powerful political leadership, structural
legal reform cannot
generally be achieved in as short a space of time as three years because of its
complexity and because of the
level of community consultation and education
required.
2. Not just
politicians
A long term commitment requires that persons other
than our elected representatives be involved in the reform process. Any reform
must be underpinned by ongoing research undertaken by the university sector or
other expert organisations. This is not only necessary
because of the long term
nature of such projects, but also because many of the Australian people have
become alienated from their
representatives such that any outcome that is seen
as generated completely within the political process will be suspected of being
potentially self-serving.
3. Incremental,
not immediate change
The Bill of Rights debate has been characterised by
models that were inadequate in terms of their design or due to a failure to
engage
the community in their drafting or through giving a sense that the models
reflected community aspirations. In some cases a model
may also have been too
ambitious in its scope. The lack of community understanding of the complex
issues linked to public law reform
requires a gradual approach whereby a model
is developed and refined in line with changing community perceptions and new
understandings.
The change itself ought to drive this, such that acceptance of
an initial approach in these areas might then contribute to community
support
for more progressive
outcomes.
4. Reject
minimalism
Minimalism has its advantages in enabling debate to be
focussed on one model and a specific set of issues. However, the 1999 republic
debate and referendum demonstrated that this also creates the likelihood that
such a change will not only be opposed by people who
reject the need for reform
altogether, but also by people who would prefer a different model. Any change
ought to be tailored to
the problem in a way that matches community expectations
without seeking to confine the solution to such a narrow outcome as to alienate
potential supporters. Minimalism rightly failed as a strategy at the 1999
referendum.
5. Community ownership and
involvement
The strong reaction against the 1999 preamble proposal
and the fact that it received even less ‘Yes’ votes than the
republic
proposal indicates the danger in failing to fully consult the
Australian people. The people are unlikely to support any proposal
which they do
not ‘own’ through an appropriate consultative process. A mere vote
at a referendum is not enough to generate
community feelings of ownership and
support. By that time it is too late, and the vote is more likely to reflect the
extent to which
the community feels they have been alienated from the process.
Consultation can take many forms, but models might include a convention
with a
high level of community membership or an inquiry process with a range of
political and community members that holds hearings
at centres around Australia.
Any major structural reform ought to have a strong grassroots base from an early
stage.
6. Community
education
Australians possess an appalling lack of knowledge
about their system of government. A 1987 survey conducted for the Constitutional
Commission found that 47 per cent of Australians were unaware that Australia has
a written
Constitution.
Similarly, the 1994 report of the Civics Expert
Group
found that only 18 per cent of Australians have some understanding of what their
Constitution contains, while more than a quarter of those surveyed nominated the
Supreme Court, rather than the High Court, as the ‘top’
court in
Australia. Significantly, only one in three people felt reasonably well informed
about their rights and responsibilities
as Australian citizens.
One of the most powerful arguments at the 1999
referendum was the argument ‘Don’t Know – Vote No’. It
will
be very difficult, if not impossible, to gain support for major change
unless it is underpinned by adequate community education.
Information must be
available on websites and in pamphlet form that is accessible by schools and
other community organisations. The
information must be credible, accurate and
reliable.
In 1999, Australians did not have access to information of
this kind on the
Constitution or the proposed change. This should be remedied
for future referendums. A new system should be introduced that would clearly
separate
the basic information required by Australians to cast their vote from
the partisan arguments of the ‘Yes’ and ‘No’
cases.
Without such information, referendums will continue to be plagued by the
destructive, but effective, argument ‘Don’t
Know – Vote
No’.
7. Draft a model that can
be understood in the communityThe reform ought to be constructed
in such a way that it can be communicated simply and effectively to a community
audience. It should
be based upon a set of guidelines, principles or criteria
that match community aspirations. The reform should be accompanied by
‘plain
English’ guides in appropriate languages as well as by
material that accurately states the issues and proposed change. If this
is not
possible, the proposal is unlikely to gain sufficient support to be
implemented.
8. Develop support
Australia-wideThe need for a double majority in a referendum held
under
s 128 has not proved to be a significant impediment to constitutional
change. Only in three instances, two referendums held in 1946 and
one in 1977,
would the removal of the requirement for a majority in at least four states have
enabled the referendum to be carried.
The evidence instead suggests that to be
successful a referendum needs to gain support across Australia. In every case
where a referendum
was carried, with the exception of the referendum of 13 April
1910 that amended
s 105 of the
Constitution to enable the Commonwealth to take
over State debts, a national majority was accompanied by a majority voting
‘Yes’ in
every state. A broad and deep basis of support should be
developed across the nation. The 1967 referendum achieved
this.
9.
Seek bi-partisan
supportMajor constitutional reforms are almost never achieved
without bipartisan support. In fact, there has never been a successful
referendum
in Australia that has not had bipartisan support. However, in matters
of structural public law reform, such support will not always
be attainable. In
the absence of bipartisanship, there should instead be a focus on incremental
change of a statutory type rather
than seeking a constitutional referendum. A
referendum may incur a high financial cost and polarise people without gaining a
positive
vote. A failed referendum may also preclude subsequent reform in an
area through strategies that do not involve a referendum. Once
the people have
rejected a change it will be very difficult to gain further political or popular
support to pursue the issue in the
short
term.
10. Tackle the reform process
along with the reformBoth the republic and Bill of Rights debate
shows that a change may not succeed for reasons that have little to do with the
merits
of the general reform proposal. In fact, surveys of public opinion on
both the republic and a Bill of Rights show strong underlying
community support
for change. Opinion polls around the time of the 1999 referendum on the republic
consistently showed that majority
of Australians support generally the idea of
the nation becoming a republic. One Newspoll taken a few days before the
republic referendum
correctly predicted its defeat but also found that that 74%
of Australians (with 23% against) were in favour of ‘Australia
becoming a
republic’.
[17] Similarly, one opinion
survey found strong underlying community support for the concept of a Bill of
Rights; in that case 72% of
those surveyed favoured some form of Bill of Rights
for
Australia.
This demonstrates that, even with strong community support, structural legal
change can be difficult to achieve and that community
support will not translate
into outcomes unless the process by which such change is addressed is also
effective. To overcome this,
any program for structural reform should also
tackle the process by which that reform will be achieved.
Making the referendum
process work is an important policy challenge of the second century of our
Federation. We should examine how
Australians can become more involved
throughout the reform process. The provision of better information to voters
only requires a
rewrite of the basic referendum procedures
(
Referendum (Machinery Provisions) Act
1984 (Cth)) and not of the
Constitution. This can be brought about by the federal Parliament. It should
institute a joint parliamentary inquiry to examine the effectiveness
of the
current process, including the ‘Yes’ and ‘No’ case
procedures, in providing information to the Australian
people. Unless the
referendum process itself is reformed to better involve Australians, the factors
at work in 1999 may again play
a large role in the next vote on the republic, or
indeed any future referendum on issues of public law reform. The lessons of 1999
should be acted upon now, before they are overtaken by a partisan referendum or
plebiscite campaign on a Treaty or other topic.
V. Strategies for
the Treaty debate
These ten lessons give a
preliminary indication of how the Treaty process might be approached. In
particular, they suggest that the
debate must be conducted in a way that takes
account of the long term prospects of reform. Any strategy must not alienate
people
with suggestions of short term or immediate solutions. The nature of a
Treaty also makes it essential that any reform stems from
an informed choice of
both Indigenous and non-Indigenous Australians. A choice implies consideration
and debate by communities based
upon engagement with the material at a useful
and informed level. The debate and education ought to be long standing before
any attempt
is made to bring about specific change. This is particularly
desirable if the debate is to lead to constitutional reform and a
referendum.
The outcomes of the Treaty process can be viewed in the
short, medium and long term. Each stage must be supported by credible
independent
research and analysis. Deep and complex issues raised by this
debate, such as sovereignty and reform of the existing constitutional
structure,
must be tackled along with any consultative process. In the short term, an
appropriate outcome is a heightened awareness
among Australians about the
relevant issues and about the range of possible models. Australians should also
be made more aware of
why a legal instrument of this type would be appropriate
for the reconciliation process and why it might be seen as a matter of
unfinished
business. This period should see the production of community guides
and web resources for use at the community level and in schools,
other education
institutions and the media.
In the medium term,
there should be significant public debate over the types of models that are
proposed, and formal community consultation
should be undertaken through
processes such as conventions and plebiscites. Such processes would be designed
both to deliberate upon
the options and, if appropriate, to build support for
the idea. They would also naturally contribute to and deepen community
understanding
of the issues. This is necessary given that the Treaty debate,
like that on Bills of Rights and the republic, involves many complex
legal and
other issues that are likely to provoke genuine disagreement. The issues of
sovereignty is a good example.
In the long term, the Treaty process should lead to the
drafting of an instrument that would represent the first significant legal
outcome in an ongoing Treaty process. For example, a statutory instrument might
be achieved to be followed after some time by a referendum.
It would be a
mistake to think that any initial instrument, or even a referendum, could
satisfy all of the aspirations of any of
the parties. The process must be an
generational one. Any statutory instrument preceding a referendum might include
a requirement
that it reviewed after five years so that it could be refined and
further developed. The five year point might be marked by further
community
consultation and deliberation. Ongoing community involvement is necessary if a
Treaty is to have the flow-on cultural impact
that would transform from what
could otherwise merely be just another legal instrument.
Anthony Mason Professor and Director, Gilbert & Tobin Centre of Public Law,
Faculty of Law, University of New South Wales; Barrister,
New South Wales Bar.
This article has been revised from an address delivered in the AIATSIS Treaty
Seminar Series ‘Limits and
Possibilities of a Treaty Process in
Australia’ on 3 September 2001. I thank Paul Kildea for his research
assistance.
Council for Aboriginal Reconciliation, Final
Report of the Council for Aboriginal Reconciliation to the Prime Minister and
the Commonwealth Parliament (Commonwealth of Australia, 2000) at 106. See
the Reconciliation Bill 2000 in Appendix III, which was drafted to set out such
a process.
The author was a consultant to the Council on the drafting of this
Bill.
See,
for example, M Kirby, ‘The Australian Referendum on a Republic – Ten
Lessons’ (2000) 46
Australian Journal
of Politics &
History
510 at 528-529.
Constitutional Commission, Bulletin,
No 5 (September 1987).
Civics Expert Group,
Whereas
the People: Civics and Citizenship
Education (Australian
Government Publishing Service, 1994). See also K Krinks,
Creating
the Active Citizen? Recent Developments in Civics
Education (Research Paper 15
1998-99, Department of the Parliamentary Library, Parliament
House).
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