In Conversation With: Graeme Orr

Graeme Orr is a Professor at the University of Queensland. His research interests are wide and varied, and I was lucky enough to have a short conversation with him about the recent Queensland local election. In particular, Graeme shared with me his views on the referendum and democratic process. I will be interested in hearing Graeme's perspective on the upcoming Federal Election, but that's for another day.

Prianka: For someone who has no idea how things work, can you explain briefly what the democratic process was like in the lead up to the election?

Graeme: It wasn’t run very well, whether by design or misadventure (or a bit of both). As you probably know better than me, many people were not aware that the referendum was on, and people were turning up to the polls surprised that they had to vote on something besides local government. This Bill, that is now law to amend Queensland’s Constitution was pushed through on the last sitting before Christmas. We heard nothing of it for a while afterwards, other than there was a suggestion that the government, to save money, wanted to hold the referendum on the same day as the local government polling day.

We then had four or five weeks’ notice when the Governor said that the referendum would be held. The people behind the referendum spent no public money educating, and we know that this is an absolute problem when it comes to deliberative democracy. This is especially in regards to referendums – for instance if you think about the Indigenous (so-called) recognition and local government referendums that were mooted, there has been a several year-long process of consultation and building up community information and potential support and arguments. In this case, there was none of that.

In this case, the only public monies that went into voter education was a 1000-word case for yes or no in letter boxes. Many people would’ve thrown it in the bin, many would have put it aside and lost it. In some cases, one person in a household would have seen it but not the rest. It’s not a bad idea, but it is a 100-year old idea in the law, that you spend some money for an official yes/no case which is in black and white. It’s fine, but you need a lot more, and we learned that seventeen years ago with the republic referendum, where they ran things like television and social media campaigns. Basically, we need an updated model about engaging people in open ways, and that’s particularly important when you’re changing fundamental legal institutions, like how long parliament runs.

You’ve done constitutional law, does Queensland have a constitution?

Prianka: I wish I had paid more attention in Constitutional Law, but yes I think so. There’s no bill of rights, so I’d hope that there’s a constitution

Graeme: Many people don’t know that Queensland has its own separate constitution to the national one, and very few people will know that Queensland’s constitution runs across many Constitution acts. Almost no people would know that the Queensland Constitution is flexible, meaning that we did not have to have a referendum to determine fixed terms – we could have just passed a Bill.

Why then did they include fixed terms with longer terms? A referendum is needed for longer terms, because in the 1920s the Upper House, which was at the time stacked with old white men, was abolished and the Labor Party entrenched three-year fixed terms explicitly, because that was supposed to be the main form of accountability and protection for not having any other checks and balances.

However, the government in this case decided to bundle together fixed terms, where they didn’t even need a referendum, and longer terms where they did. Why do you think they did this?

Prianka: For them – for job security and the security of political agenda?

Graeme: Precisely, these were bundled together for their sake. They wanted longer terms. They could have had fixed terms without a referendum, and they could have done this any time in the past. They deliberately (or cleverly) bundled two separate issues together, when they could easily have had two separate questions in the referendum, to minimise peoples’ choices. It’s a bit like Optus and Telstra, they bundle together packages to force you into things that you don’t really want. It’s a classic marketing tool, to bundle together related but distinct questions, to minimise choice in the assumption or hope that people will favour fixed terms and stability, with the risk of longer terms and less democracy and checks and balances.

There was polling that shows that 60-70% of Queenslanders wanted fixed terms, and 60-70% of Queenslanders wanted short terms. You can see why the referendum was so close. You can see why it just struck over the line, despite peoples’ good democratic instincts. People are not irrational. People who simply trust in the power above are in a minority.

Prianka: So am I benefiting at all from four-year terms?

Graeme: You’re not, or at least you’re certainly not guaranteed to. You’ve diluted yours and your children’s’ votes – this referendum has diluted our voting rights, and it’s the only mechanism formally and institutionally in our legal system that provides us with protection from the executive government. I mean, we’ve got an Ombudsman and Parliament, and we’ve got parliamentary committees. However, none of these things are locked in. The ability to vote regularly was the only thing we had, and people used that to get rid of the Bligh government because it had been there for too long and had lied about asset sales, and they used it to get ride of the Newman government because it was moving too fast and too soon, in ways that people thought were unfair.

We now all have to wait an extra year to get rid of a bad government. But more than that, we only have one vote very four years. One ballot, one Upper House ballet. We can’t elect minor parties effectively because the system is geared towards the two major parties.

Prianka: That was one of my other questions – what chance do The Greens or any other parties have of being properly represented?

Graeme: You can see why The Greens and the Katter Party were against the referendum; because they prefer the idea of more democracy and not less. Voting less is a bit like having fewer opinion polls. It means that we’re being consulted less, and it means that the executive can just go on and do their own thing. But, when you think about Queensland’s culture and history, you can see that we have a history of (usually) strong male premiers. Newman – strong choices, Peter Beattie – was all about him. These Premiers can rule on 40% or less of the vote because the voting system in the Lower House is geared towards the party which is the most popular, not the party that has 50% of the vote. Smaller parties, like The Greens, don’t get any say.

We really missed a big opportunity. If a small percentage of people had switched, we could have forced the government back to the drawing board as they desperately wanted those four year terms like the other States. Had the referendum not passed, they would have had to bargain and give something up. Perhaps an entrenched bill of rights, or an Upper House (preferably). Maybe a system of proportionate voting in the Lower House like they have in New Zealand, which is my preference. Any one of those things would at least provide some system of checks and balance.

Importantly, it was always wrong to say that having a fixed four-year term would bring Queensland in line with the other States, because all the other States have an Upper House. They all have some proportional voting, whereas Queensland now has a constitution which is identical to the Northern Territory’s, and we know how how that’s working out.

Unfortunately, it’s now entrenched forever.

Prianka: Do you think that the possibility of an Upper House is realistic or idealistic?

Graeme: It would take a major scandal, like a corruption scandal, to induce parties to proactively put an Upper House back in place. We only have to look to the United States, how volatile the election is currently. People are looking for alternatives out of the cosy two-party system. They want someone who pushes down the barriers – a major economic shift. But this sort of scandal is not something that you would wish for as means of re-introducing an Upper House.

Remember that there really was no money in the ‘no’ case for the referendum. The Greens shared a video of me explaining my position (see below) but this was not funded. On the other hand, people on the ‘yes’ case were funded. The government paid for flights for the Attorney General and the Shadow Attorney General. They had party advertising and how to vote cards as well. So for them to only get 53% of the votes is one of the worst results for a referendum that has had bipartisan approval.

For instance, you can go back to the Commonwealth referendum for indigenous affairs in 1967, where there was 90% approval. In 1970s there were three referenda which all got between 60-80% of approval. This referendum was actually a very bad result.

But, it is what it is. We are now left with fixed four-year terms, and hopefully we will have more responsive rather than less responsive government. 

Things to note:

If you are further interested, you can find out more at http://www.theguardian.com/australia-news/2016/mar/18/queensland-politicians-in-furious-agreement-on-fixed-terms-but-voters-beg-to-differ 

Embedded in the article is the video prezi Graeme made explaining his case, as well as a video from Mr Ian Walker in support of four-year fixed terms. 

Loose Thinking about Free Speech - Graeme Orr

Loose Thinking about Free Speech

Megabytes have been devoted recently to ‘free speech’.  Much has been self-serving.  A lot of it has been driven by right-wing voices, in opposition to vilification laws and a proposal to strengthen the press complaints system. Left-wing voices have focused on gags on public servants and moves to deny grant monies being used to advocate for policy reform.

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University of Queensland law professor Graeme Orr

Balancing free expression with civility and equality is not simple. Conservatives accentuate the need for respectful debate and concern for reputation. Progressives fret about power and the need for marginalised voices to share stage with the well-resourced. Small ‘l’ liberals want to leave things to the marketplace and point to the internet as a liberating agent. These are all principled positions. Freed of posturing, most would agree we need to balance these principles.

At present, the debate is largely driven by self-described liberals. ‘Self-described’ because they tend, unfortunately, to have a mote in their eye. Else they are reacting to passing cases and old cultural battles, as much as any deep commitment to liberty. 

Two causes celebres have animated the George Brandises (Attorney-General) and Tim Wilsons (his choice as Human Rights Commissioner) to declare themselves the living embodiments of JS Mill.   One was the civil suit against Murdoch columnist Andrew Bolt, for vilifying prominent ‘light-skinned Indigenous’ figures. The Federal Court required Bolt to apologise, under the Racial Discrimination Act. In a volte face last week, the Prime Minister abandoned reform of that law.  Not because the law was necessary to modulate aggressive racialism, but because he risked too much political capital to have it repealed. 

“We need a rational press complaints system, but it is hard to apply in the lightning-fast, decentralised era of internet news”

The other cause that agitated free speech concern was the Gillard government’s interest in press regulation over self-regulation. After a public inquiry, and echoing UK proposals, Justice Finkelstein recommended a speedy conciliation process for complaints against newspapers, and the power to order apologies and corrections but not damages. In both the Bolt and Finkelstein debates, the Murdoch press led the opposition to regulation. 

There is a principled ground for objecting to racial vilification laws. Where vilification falls short of personal intimidation such laws may martyr bigots. Suppression may breed more perversion.  Press regulation was more pragmatic.  We need a rational press complaints system, but it is hard to apply in the lightning-fast, decentralised era of internet news.

We should judge these new Millian liberals on what they do not say, and what they actually do, rather than just by what they say. Last year, in Monis’s case, the High Court upheld charges against two Muslim Australians. They had committed the offence of using the postal service in an ‘offensive’ manner, by sending spiteful letters to the families of servicemen killed in Afghanistan. 

This was a criminal case, involving private communications. Spiteful behaviour, but also speech with a political point. The silence about Monis’s case was deafening, from Labor and Liberal politicians alike. Similar offences also apply at state level and to the internet. It would take a Stasi-like police force to enforce criminal laws for every ‘offensive’ communication via the internet.

The mote-in-the-eye goes beyond the problem of selective outrage about ‘free speech’.  Besides its approach to government access to internet and mobile phone ‘metadata’, the Abbott government has sought to restrain the public speech of  public servants and of community groups receiving Commonwealth funds. Rules now warn public servants against expressing even anonymous opinions on social media if they might be read as ‘harsh or extreme’ about government or opposition policy.  Public servants with community roles, such as in an environmental group, are also warned against, say, criticising government policy on wind farms.

A dictate against NGO advocacy is now included in funding agreements. 140 community based legal centres, for example, will be banned from using any of their funding for law reform advocacy.  This might be understandable were the government committed to better funding of services. But social problems cannot be addressed with only individual bandages.  They often require a systemic push for reform.  Even the High Court held, in a case involving the foreign aid organisation Aid/Watch, that charities could act as public advocates.  Informed debate about the best way to advance public welfare was itself a worthy aim.  Tax deductions, after all, are available to donors to political parties, and governments routinely run big advertising campaigns to push contentious polices.

Governments tend to see ideological enemies everywhere:  in the public service, in NGOs and in the ABC. Compromising principles out of partisan concern is hardly a new phenomenon. The Queensland government recently legislated to tie unions in knots before they could mount ‘political’ campaigns.  That law was repealed quietly, one evening in July, because the government feared it would be defeated in the High Court.

Unfortunately, many liberals have a stunted idea of freedom of speech, as merely a negative liberty.  It is the freedom of magnates to run a political party or a multi-million dollar campaign against the mining tax. But what if you lack the resources for megaphone speech?  Or you are one of the disaggregated voices of the unemployed or micro-business? To paraphrase Anatole France, in its majestic equality our law allows everybody, equally, to own a media chain or to risk arrest holding a placard at a demonstration.

Sadly, we live in an environment more partisan than principled. Opposition to racial vilification law is not based on its impact:  there are few complaints, which are conciliated cheaply in private.  It is based mostly on the symbolics:  communitarians want to use the law to emblemise social progress, others resent certain migrant groups.  Mr Wilson gave the game away when he falsely claimed that law was only open to ‘ethnic minorities’. 

In the process, the dictum of another French writer, Voltaire, has been recast. Today, it is less a case of ‘I disagree with what you say, but will defend your right to say it’.  And more ‘If I don’t agree with what you say, I will defend my right to be a hypocrite’.

Graeme Orr is a University of Queensland law professor and author of The Law of Politics

A version of this first appeared in Inside Story.