Australia needs to reinvigorate and reinvent our public policy decision-making processes on divisive issues, according to ANU Law expert Dr Ron Levy.
In a paper to be presented to the ANU College of Law National Law Reform Conference next week, Dr Levy will argue Australian politicians should use deliberative plebiscites to put socially contentious issues to the public vote to help break political impasses, and help increase the awareness and understanding of them.
“Deliberative plebiscites are the most rational option for dealing with divisive issues and far preferable to acrimonious political debates in Federal Parliament.
“We only need to look at the current debate on LGBTI issues in Parliament to see how dismal, and dangerous, the rhetoric is there,” Dr Levy said.
“You have to weigh up whether Parliament or a plebiscite will be the safer bet in terms of dampening public division and invidious rhetoric. I am not convinced that Parliament is better.
“Deliberative plebiscites that assist the public make a well-informed decision - inclusive of public perspectives and reflective of the key issues - can only improve decision-making in Australia.
“A plebiscite on same-sex marriage in Australia should not be necessary as there is already a social consensus that same-sex marriage should be legally recognised. Dissenters on the matter are a relatively small, and shrinking, fraction of the population.
“But where there is a public impasse on a matter – as there was in Ireland on same-sex marriage – a plebiscite is still perhaps a useful tool. Ireland held a successful referendum on legalising same-sex marriage in 2015.
“Unfortunately, I am not convinced that the current Australian Government’s planned same-sex marriage plebiscite will be a very deliberative exercise.
Dr Levy, who is a Senior Lecturer and the Director of a research project at ANU Law on Deliberative Governance and Law, said most Western democracies are uncertain about when to hold a public vote, with decisions on plebiscites and referendums often made on a very ad hoc basis.
“Standard forms of democracy are deficient because they lack 'deliberative' qualities such as rational reflection, well-informed decision-making, broad inclusion of public perspectives, equal and free participation of citizens, and the provision of reasons for decisions.
“We need to reinvigorate our democracies and reinvent our decision-making processes. We need to engage the public in decision-making.
“What I am looking at is trying to determine the best way issues can be put to the public vote. Is 'deliberative voting' – where a plebiscite or referendum is held, and people are informed of the different policy options they will vote on – the best way to make decisions? Should we use an online voting process that follows a tutorial on the issue?
“My preferred option is a 'citizens' assembly' held before a vote. This would see ordinary citizens come together for several months to learn about an issue, and then suggest law reform that could be put to a public vote.
“In this age of very low trust in governmental elites, we are actually more likely to trust well-informed ordinary citizens than members of government. Trust is essential, because if you don't trust the people making a law reform proposal, and you don't know much about the proposal yourself, then you will most likely vote ‘no’ to the proposal.
“We need to develop categories of issues where there would be a benefit to having a public vote – for example votes on socially-divisive matters,” Dr Levy said.
The National Law Reform Conference will be held on 14–15 April at University House at The Australian National University. Bringing together legal practitioners, policy experts, researchers and academics, the Conference will provide a forum for research about law reform and future directions in six key areas, including public law, civil law, criminal law, commercial law, environmental law and legal practice.
BY LYN LARKIN
