The three amigos and the glasshouse government

At long last, the three amigos [cue ambient, vaguely Mexican acoustic guitar arpeggio] have made their decision on the fate of Australia’s federal government, and Gillard Labor has been granted a reprieve.

The Three Caballeros

Having junked the idea of “sticking together” in order to consolidate their power, Tony Windsor and Rob Oakeshott have decided to support a Labor minority government, with Bob Katter pursuing the somewhat safer course of siding with the Coalition. Under the circumstances, this is probably the best outcome that could have been negotiated from a Labor point of view. It’s likely best for Bob Katter and his hat to be getting up to mischief outside the tent rather than inside.

There has been a lot of discussion in the media and in the blogosphere on whether having a minority government of the ilk that we have is, on balance, a good thing. A couple of days ago, Kim over at Larvatus Prodeo expressed her strong disagreement with the notion that the independents deciding who would form government was somehow undemocratic. In the papers of the “morning after”, George Megalogenis describes parliament as “a house more divided than ever before”, and Greg Craven has a thoughtful, if perhaps pessimistic piece in the SMH wondering just how long the “surreal” arrangements forged in the last twenty-four hours will last.

I think its quite possible to be optimistic about some of the good things that the Gillard minority government looks capable of delivering, whilst being critical of the realistic legitimacy of the outcome and the outlook for the stability of governance in Australia. To start with the positive points: the prospect that Australia will see some real, consensual reform to parliamentary structure and procedures is certainly a welcome one, and well overdue. Furthermore, at least for those of us of the centre-left, the possibility that an ALP/Greens alliance will bring some worthwhile policy dividends (e.g. particularly on climate change, human rights issues, and transport) is tantalising. There will be a clear imperative for Federal Labor to pursue a more progressive policy agenda, now that they are reliant on the Greens and Andrew Wilkie for support in the lower house and indeed to pass legislation through the Senate.

But is this really a reflection of what Australia wants? Let’s be clear – the way the numbers fell, with both major parties falling short of a majority and the Greens and a number of independents controlling the balance of power, was pot luck. A number of marginal seats could very easily have flipped to the other major party had circumstances been slightly different, resulting in a majority government. If voters knew that a hamstrung government condemned to twitch to the tune of a motley gang of independents was on the cards, many may well have voted differently. Realistically speaking, the majority of electors voted for a Labor Government or a Coalition Government, not something else. That we have neither today (at least in the normal sense) is not a function of the “all-seeing wisdom of the Australian people”, but really just a quirky twist of electoral fate. Indeed, assuming that there is at least some swing towards either the ALP or the Coalition at the next election, it seems highly unlikely that the current, delicately balanced situation in the House of Representatives will persist beyond the next three years. That is, of course, if it lasts even that long.

Let’s consider for just a moment the political reality that Julia Gillard’s incoming minority administration has to deal with. Firstly, it must negotiate in an effective manner with both Andrew Wilkie and the Greens, a party renowned for taking quite a hard line on issues on which it feels it morally attached to. I’m not being critical necessarily of the Greens (in some respects this approach is quite laudable), but one would fundamentally expect that in order to retain their and Wilkie’s support, Labor is going to have to tackle a number of issues in a manner that is hardwired to discourage or disgust large chunks of middle Australia – the same middle Australia that rejected Labor in swathes in Queensland and seats in the outer suburbs of Sydney at the polls two weeks ago. The same swinging, relatively non-partisan middle Australia that in recent electoral history, has decided who forms governments and who does not, by siding with either Labor or the Coalition.

Secondly, Labor must appease independents Tony Windsor and Rob Oakeshott. Clearly there are some policy areas on which the two rural independents may be amenable (e.g. climate change, the NBN), but there are a number of other areas in which they will clearly not be, particularly when one considers the need of Labor to satiate the Greens. Finally, Labor needs to do all of this whilst fending off a Coalition with a free run at the middle ground and a veritable of smorgasboard of weeping sores at which to pick; an array of inconsistencies between the various policy positions and beliefs of the various parties and independents who together make up the minority government.

Perhaps I am wrong, and things will go swimmingly for Prime Minister Julia Gillard and her really quite diverse team. But this looks to me like a very difficult situation in which to drive reform, and a very fragile working arrangement. It is a situation arrived at as much by dice-playing and the ego of a few bit players as it is democracy in the popular sense of the word.

It’s time to talk about human rights

One of the most contentious unresolved issues with respect to the Australian Constitution is that no specific aggregate collection of human rights are enshrined within it, unlike several other “high profile” constitutions worldwide (most famously, the United States Bill of Rights). Australian constitutional lawyer Greg Craven sums up the situation quite succinctly (if a little flippantly!) in his excellent book, Conversations with the Constitution (p.165):

No-one can dislike human rights. Rights are the small children and furry animals of a constitutional system, demanding nothing less than constant admiration, unremitting praise and rapt attention. If, as Doctor Johnson remarked, someone tired of London is tired of life, anyone tired of human rights is tired of credibility.

The reality of rights is harder. For all their surface appeal, constitutional rights are as fraught with complication as a Beirut tourist guide.

When it comes to constitutional recognition of human rights in Australia, the primary combatants fall into two broad camps. The first camp seeks the inclusion of a “bill of rights” of sorts in our constitution, and laments the absence of any cohesive collection of legally enshrined rights in the current document. This is probably the popular view amongst the broader left, as exemplified by this editorial in The Age recently, and the work of Professor George Williams. The second camp is concerned that enshrining a series of discrete rights in our constitution is destined to shift decision-making powers on rights from parliament to the judiciary; in essence from an elected body to an unelected body. One of the most prominent bill of rights sceptics in the political sphere is of course former NSW Premier Bob Carr. There is of course a third, rather amorphous camp to consider here; those Australians who don’t really care whether or not human rights are enshrined in the Australian Constitution, and don’t think that doing so is really going to make a significant difference to their lives. At this point in time, this camp is by far the largest camp on the scene, and will probably present the greatest obstacle to any change being instigated in the future.

It is in this environment that the Rudd Government and Attorney-General Robert McLelland has taken the commendable step of kickstarting a new National Human Rights Consultation process on the auspicious occasion of the 60th Anniversary of the Signing of the Universal Declaration of Human Rights. The consultation process is to proceed over a period of some seven months, reporting back to parliament on 31 July 2009, and is to be chaired by Father Frank Brennan, a strong advocate of human rights, but something of a sceptic when it comes to local constitutional enshrinement. His appointment was an exceptionally canny choice from a government no doubt concerned about the repercussions of stacking its consultation committee with people ready and raring to create an Australian Bill of Rights. The other members of the committee are SBS journalist Mary Kostakidis (an Australian bill of rights advocate of sorts), former Australian Federal Police Commissioner Mick Palmer, and young lawyer Tammy Williams.

This is a great opportunity for Australians to get involved with their constitutional democracy and shape the way it is to develop in the coming decades. You can make an online submission to the consultation process here – make sure you do so by 29th May 2009 if you at all care about human rights in Australia.

ELSEWHERE: Kim remarks on the anniversary of the UN Universal Declaration of Human Rights over at Larvatus Prodeo. Andrew Bartlett also has a good post supportive of the consultation process here.