Modern democracies need to break through wooden political sloganeering and judicial paternalism to reach a more rational, cooperative and democratic process, according to UQ law Professor Graeme Orr.
Speaking ahead of the launch of The Law of Deliberative Democracy, a book he co-authored with Dr Ron Levy (Australian National University), Professor Orr said the need for public deliberation was more important than ever.
“Democracy can be a reliable way to make big decisions, but we’ve lost faith in it,” he said.
“There is a separation between elites – such as the judiciary and parliamentarians – and ordinary folk.
“Good deliberation is about ensuring the public is engaged in political debate and has time to understand the issues, and inject their values into informed decisions.
“People are more willing and better educated than ever to participate in public deliberation.”
Professor Orr said a plebiscite on same sex marriage could have been a fair thing because – unlike Brexit – it was an issue on which people had developed long and informed values.
“But unlike referendums, in elections the issues are not contained,” he said.
“When parties overlap so much on policy, voters also focus on trust and character.
“The US presidential election is a good example. While it is the ugliest in living memory, the long-lead time and the institutionalised leadership debates have made a difference. They have allowed electors the time and information to assess Mr Trump’s and Ms Clinton’s characters.”
Professor Orr said Australia needed a guaranteed leaders’ debate during elections that gave all parties – not just the major ones – an opportunity to explain their policies to the electorate.
The Law of Deliberative Democracy explores how parliament and judges think and deliberate about the laws of politics.
He cites the Australian Capital TV case as a classic instance of courts putting political ‘freedom’ ahead of subtler values like good deliberation.
“25 years ago the Hawke government moved to the British model of no paid broadcast ads at election time,” he said.
“Broadcasters were to instead provide longer, free slots to parties to speak about their policies.
“Yet the High Court struck that model down. They prioritised the value of ‘liberty’ over both equality and improving electoral debate.
“Small-l liberal values like freedom of speech are in the DNA of democracies like Australia, so improving deliberation is often neglected.
“We often assume judges make better deliberators about what the law should be, as they are independent experts. But judges come with a set of often narrow assumptions about values.”
Professor Orr said when the Australian Constitution was written more than 100 years ago, people weren’t using the concept of ‘deliberative democracy’, yet elections then were, in many ways, more democratically-deliberative than today.
“In the late 19th century, text-based newspaper reports were central to informing debates, rather than advertising,” he said.
“Candidate spending was limited, the franchise was fresh, there was greater faith in the potential of democracy and campaigns were deliberatively focused.”
The research for this book was funded by the Australian Research Council’s Discovery Project scheme.
The Law of Deliberative Democracy will be launched by Justice Peter Applegarth at the Supreme Court Library on Tuesday November 15. The event is by invitation only.
For further information, Graeme Orr: 0434 525 398 or firstname.lastname@example.org