At the beginning of this month, I appeared before the federal parliamentary committee tasked with a number of questions, including political donations and campaign advertising. I politely proposed that politicians, when trying to regulate these matters, might be seen as both poacher and gamekeeper. I suggested that a citizens’ jury might help with that. What we heard in response was that the committee thinks a jury process could help with another problem: section 44.
By now, we all know that section 44 constrains federal parliamentarians to undivided loyalty, and that they, of no fault of their own, can be plunged into a citizenship saga at any time, by other countries. In addition, section 44 prohibits a candidate from having an office for profit under the Crown (being a teacher, for example, is not permitted) and also bars those having a pecuniary interest in a government activity (such as being a landlord of an Australia Post shop). These are difficult issues to resolve, bedevilled by detail. Where New Zealand, for example, can settle this through the courts and Parliament, we require a referendum. It’s widely recognised that referenda have a low success rate: eight in 44, or less than one in five since federation. Now think about holding a referendum that relates to what appears to be politicians' poor paperwork. Good luck with that.
In Australia, most people trust a random sample of citizens to consider the evidence, and then discuss among themselves the common ground they have regarding the accused’s guilt or innocence. As a society we trust the jury process. Consider the last time you heard a verdict: whether you agreed or not, you didn’t think it was influenced by a donor, was self-serving to a future career, or driven by a desire for media profile. You likely thought that if 11 out of 12 people could look at the case and agree on something, they probably got it right.
The committee could take heart from the success of the Irish Constitutional Convention of 2012 that had 99 delegates: two thirds randomly recruited from the population at large, and the balance made up of MPs. They studied a number of constitutional reform matters. We could do the same, and consider various questions such as the republic and Indigenous recognition, apart from section 44. Then use the recommendations as the basis for a referendum.
There are no necessarily correct answers to these constitutional questions. I hear too often, the intonation: "Let's have public debate." I would say: "Let’s have a public deliberation." Debating is so old school.
Luca Belgiorno- Nettis,
Opinion - Sydney Morning Herald, 19 February 2018.