The minimalist approach, therefore, seems to run against his political instinct. Small wonder his Corowa speech at the weekend hinted that he is moving away from it.
Initially, the Nervous Nellyism appeared to arise from the belief that Australians always knock back referendum proposals so they must not be scared too much. The whole republic thing could fall flat on its ear if the nervous Australian voter thought the change was too big.
Keating seems to have reassessed this. And quite right, too. It is based on a jaundiced view of Australia’s referendum history.
Keating as a high-risk politician perhaps sees that sentiment continues to build on the republican side. As it does so, these people are likely to vote for a Republic anyway and cop whatever other constitutional change that comes with it.
As an aside, I think that would be dangerous and silly and that Australians should knock back the republic until the pollies present us with a good model (or hand the referendum-initiation process to the people so we can do the job ourselves) or at least Australians acknowledge the inevitable and concentrate on what sort of republic we have, rather than whether we should have one.
So Keating being a high-risk politician might be thinking he can tack on a Bill of Rights to the Republic referendum. Well, I think history is with him, not against him.
Australians have not knocked back 34 out of 42 referendum proposals for the fun of it or because they are genetically pre-disposed to vote No. Rather, they have voted against them because of their nature.
Out of the 34 proposals knocked back, 22 were for increases in central power, nearly over industry and economic matters. Of course, they will be knocked back. Eight were about elections in one form or another: changing the way Australians vote in federal, state or referendum elections or changing the composition of Houses they elect. Given the pattern of pollies seeking power evidenced by the other 22 proposals of course they were knocked back.
Two were about local government and one about interchange of powers. They were irrelevant to most Australians. That leaves one that dealt with basic rights. It had a strange mix of trial by jury; freedom of religion and compensation for property taken by the states. It was largely defeated on the ease of an all-or-nothing campaign.
Now let’s look at the eight that were carried. Five were machinery and electoral provisions about state debts, the election of the senate, the replacement of dead and resigning senators, the retirement of judges and territorians voting in referendums.
One was to give the federal government power to hand out social security. Only one was a rights issue: Aboriginal affairs.
In other words, a straight-forward rights issue that goes to the heart of something that ordinary Australians know and care about and understand has every chance of getting up.
US history shows that a Bill of Rights can share a broad constituency from conservatives who believe in small government and who mistrust governmental solutions to radicals who believe in human dignity and rights.
The initial proponents of the Bill of Rights in the US were mainly states righters. They distrusted the central government and the federalists. The centrists argued (like our Founding Fathers) that a Bill of Rights was unnecessary because the Constitution did not give the central government power to take away fundamental rights. They were wrong.
The TV advertising case is one of many examples in Australia where central government will infringe rights given half a chance. And it is better to have an express Bill of Rights than an implied one to stop them.
If Keating has put aside “”Australians-will-always-vote-No” view, he should still be wary of the “”reform package”. People are rightly suspicious of packages, as the 1988 proposals showed.
The republic and each individual clause in a Bill of Rights should be the subject of a separate question.
The US was fortunate in that it got its 10-section Bill of Rights almost immediately upon becoming a Republic. It was passed by the first Congress in 1789 and ratified (as the US Constitution provides) by three-quarters of the states in the next 15 months.
With three exceptions, they have stood the test of time. The exceptions are the rights to bear arms; the irrelevant clause on the quartering of troops and trial by jury for civil matters.
The remaining ones (condensed and simplified and separating the first into its three parts) would make an excellent basis for an Australian Bill of Rights upon the founding of our republic. They could be put as 10 separate questions to prevent an easy No case based upon one clause:
1. Federal Parliament shall not make any law abridging the right of freedom of religious practice.
2. Federal Parliament shall not make any law abridging the right of freedom of speech and the media.
3. Federal Parliament shall not make any law abridging the right of freedom of peaceful assembly.
4 to 6. The same as 1 to 3 but for State Parliaments.
7. Trial of serious crimes shall be by jury.
8. No-one shall be deprived of life, liberty or property without due process of law.
9. People’s person and property shall not be subjected to unreasonable search or seizure.
10. A government or legislature make take a person’s property only for its constitutional purposes and upon payment of just compensation.
Australians have never been faced with this type of referendum: taking power from governments. The history of 34 rejections to eight acceptances is irrelevant to it.