To be honest, my usual fantasy is a sporting one. It generally culminates in me scoring the crucial point with three seconds to go in the Grand Final. My teammates – an anachronistic mixture of moustachioed players drawn mostly from the 1980s and 90s – rush over to congratulate me. Nelson Mandela (captain-coach) hands me a poem with a Latin title. But sporting glory is fleeting. If I want to enliven my fantasy life, I need to move to the political plane. While the HRLRC’s parlour game allows me to skip the minutiae of pre-selection, factional alliances and kissing other people’s babies, I do probably need to clarify the ground rules. The fantasy part is that I’m the Attorney-General and that people remember me fondly for my exploits in the 2010 Grand Final; all of the other details are real. This means that I’m working within the confines of a hung parliament.
One of the biggest problems with a hung parliament is that the air of the electorates held by crucial independent members can be thick with the smell of pork. When the government is daily faced with the prospect of losing a no-confidence motion on the floor of the House of Representatives, no proposal from Ms or Mr Crucial Independent MP can be dismissed as hare-brained.
In a country that values fairness, everyone’s human rights, including access to basic services, should receive equal protection. To this end, I would establish an independent commission to audit all electorates to determine the true availability of core services, such as in health and education. When my government plans to implement a new service in a particular place, it will be required to show three things. First, that there is a demonstrable need for the service in this community. Second, that communities in other, less politically-sensitive electorates are not being abandoned. And third, that this proposal fits into a clear plan to lift core services, necessary for the enjoyment of basic rights, inall parts of Australia.
This brings me to my second proposal. One of the great untold stories of Australian politics relates to a promise that all governments tend to break. The promise seems so obvious that few people notice it as part of a party’s election manifesto, but it’s almost always there. There’s usually some enthusiasm for the promise in the heady days after the election win. But then one day, you realise it’s gone. I’m talking about is the government’s promise to adopt a rational, evidence-based approach to developing policy and law. It sounds like a no-brainer for any government, but it’s not.
Imagine if a major corporation commissioned a review of an aspect of its business, liaised with all its key stakeholders and the public, and received a report recommending a new strategy. If the CEO said, ‘I can’t fault the logic in this report, but I’ve heard that a couple of focus groups reckon it all sounds a bit iffy, and so I’m going to give the whole thing a miss,’ then the Board would surely ask why a communications issue is impeding important substantive reform.
And yet, this happens time and again in government. The National Human Rights Consultation is an excellent case in point. It was a major public inquiry, it canvassed the views of experts and ordinary Australians alike, and it came up with a clear human rights reform template that elicited strong majority endorsement. If there had been a clearly-identified logical problem with this report, one could understand the government’s reluctance to implement its key elements. But that wasn’t the issue.
The government explained its reticence about the proposed Human Rights Act as being based on a fear of prolonging a ‘divisive’ debate, given that there was strong but not universal support for the more ambitious proposals in the NHRC report. Surely, this is where political leadership comes in. As Attorney-General, I would speak to the experts, obtain the evidence on difficult questions of policy, and then go for broke in persuading my colleagues and the broader public that this is the right way to go.
While it would be profoundly undemocratic to introduce policy and laws that the public as a whole disagrees with, true wisdom in any democracy doesn’t begin and end with the latest focus group. A mature, sophisticated nation first gives its citizens the information necessary to form a view on a particular topic; it encourages open debate that allows for the participation of multiple perspectives; and it ends with the government providing principled leadership and making the tough decisions.
Edward Santow is a Senior Lecturer in Law at the University of NSW, and Director of the Charter of Human Rights Project at the Gilbert + Tobin Centre of Public Law.