The Australian way

A little while back I was over for a few days in New Zealand, speaking at a law conference. One of the big issues across the Tasman right now has to do with their voting system.  Back in 1996 they moved to a closed list, highly proportional voting system known as MMP, or mixed member proportional. At core it is basically a copy of the German voting system, the one imposed on them after the end of World War II.

Anyway, this voting system has been controversial ever since its adoption.  So in order to decide if it should be jettisoned and a different one brought in do you know what the Kiwis are going to do?

The government is going to set up a Consultative Committee whose chairman is a long-time opponent of MMP. And they’re going to make sure not a single other member of the Committee is a known supporter of MMP. Oh, and they’re going to have this Committee travel around New Zealand hearing and receiving about 7,000 submissions mostly from anti-MMP lobby groups or, put slightly differently, from about 0.02 percent of the population.

That being done, this process will be trumpeted as a “triumph of democratic consultation” and “an exercise in listening to what the people have to say”. Just for good measure they’re mooting maybe commissioning a small telephone poll like the one in Canada recently that showed two-thirds of Canadians want to elect their judges. They reckon this telephone poll might buttress the democratic credibility of the Consultative Committee process.

Let me stop there and make it clear I was making those last two paragraphs up. None of that stuff has anything to do with New Zealand. In order to test people’s desire to get rid of MMP across the Tasman do you know what they’re really going to do? It’s a shock, I know, but they’re going to ask people in a referendum.

Now given that New Zealand has no written constitution and is a parliamentary sovereignty this referendum will not be constitutionally binding. But it will be politically and morally binding because everyone will know before they vote that the outcome will be honoured and treated by all politicians as binding. In fact, it was just such a referendum back in 1993 that led to the move to MMP, when just under 54 percent of Kiwis opted for it over the old voting system.

If you asked any New Zealander today whether his or her views were being taken into account if the government established a Consultative Committee along the lines I set out above you’d have someone laughing in your face. They’d say it was a scam, a foregone conclusion. That’s not asking people what they think. If you want to ask people, you see, you actually have to ask them.

No, the process I set out above has nothing to do with New Zealand. Instead, it is precisely the process the Rudd government set-up to ask us Australians what we think about a statutory bill of rights. Set up a Committee with a known supporter of these statutory instruments as chairman and not a single sceptic or opponent as a member then take submissions overwhelmingly from pro-bill of rights lobby groups (some even government funded), the numbers heard from amounting at most to 0.02 percent of the population.

Then, if you can keep a straight face, declare that the process you set-up to give you the answer you always wanted was a “triumph of democratic consultation”. (And I have to confess that anyone who can actually say this with a straight face ought to move to Los Angeles and look for acting work, it being that implausible of a claim.)

Here’s a simple fact. When proponents of a statutory bill of rights, and indeed members of this Consultative Committee itself, say that having a plebiscite or referendum is not the Australian way they’re either full of that smelly stuff or they have a notion of what constitutes ‘the Australian way’ that is noticeably less reliant on actually asking every day citizens than what constitutes ‘the New Zealand way’.

Remember, we Australians managed to hold a plebiscite when it came to the national anthem. And we actually asked Australians whether they wanted to federate over a century ago. But today, faced with a proposal that would be the single biggest change to our governing relations probably since that federation took place (one so big the top judges in the UK have said that their statutory bill of rights has created “a new legal order” – that’s a quote) and any actual asking of voters suddenly isn’t the Australian way.

Perhaps it’s good enough for those hicks across the Tasman who are silly enough to think your average punter ought to have a say when it comes to really big changes. But seriously my good man, you can’t actually think any such thing applies here in Australia. That’s why we have elites after all. To tell us what we think – after hearing from a skewed one-fifth of one percent of us, to be fair.

Look, the whole thing is too easy to parody. Process matters. You can have a legitimate process and an illegitimate one. The Kiwis have the former. We have the latter.

By the way, I am a very big opponent of MMP. But if the Kiwis ever set-up the sort of bogus process outlined above to come to the conclusion that MMP ought to go I would have the good graces to admit it was illegitimate and bogus. Indeed I look forward to the referendum over there and hope Kiwis vote to get rid of MMP.  But either way they’ll be able to hold their heads up high.

It would be nice if at least a few proponents of a statutory bill of rights here in Australia fessed up and called this Consultative Committee process what it really is and urged that the question be put to all of us voters.

Of course the main reason you never hear that being said is quite a simple one. They’d lose. They’d lose massively. And they know it.

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

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